Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries. (b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.
Appears in 8 contracts
Samples: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of $10.0 million unless:
(1) the terms of such Affiliate Transaction are no less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 35.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above). The preceding paragraph will not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 4.12 or any Investment described in the sale definition of “Permitted Investments”;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to an Affiliate of the Company of purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, stock purchase, ownership or option plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee or director benefits plans provided on behalf of directors, officers, consultants and the sale to an Affiliate employees of the Company and its Subsidiaries, in each case, as approved by the Board of Indebtedness Directors of the Company;
(including Disqualified Stock3) loans or advances to employees, consultants, officers or directors in the ordinary course of business of the Company or any of its Restricted Subsidiaries (including for travel, entertainment, moving or relocation) or Guarantees in connection respect thereof or otherwise made on their behalf (including payment on any such Guarantees) made in compliance with an offering applicable law but in any event not to exceed $15.0 million in the aggregate outstanding (without giving effect to the forgiveness of any such Indebtedness loan) at any one time with respect to all loans or advances made since the Issue Date;
(4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company, a Restricted Subsidiary and/or a Special Purpose Licensed Entity, as the case may be, in accordance with Sections 4.10 and 4.13;
(5) the payment of reasonable and customary fees to directors, and indemnity provided on behalf of, directors, officers, employees or consultants, of the Company or any of its Subsidiaries;
(6) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a market transaction and on terms substantially identical to those party as of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date or thereafter will be permitted to the extent that its terms are not more materially disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the Issue Date;
(7) transactions entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness (including, without limitation, management contracts and payments pursuant to management contracts) with any Person (ivincluding, without limitation, any joint venture, limited or general partnership, limited liability company or similar business entity) the payment that owns or has any rights to use property or assets used or useful in a Permitted Business;
(8) sales of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company Receivables, or participations therein, in connection with any Restricted Subsidiary, Qualified Receivables Transaction; and
(v9) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or relating to any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timecash pooling arrangement.
Appears in 6 contracts
Samples: Indenture (Davita Inc), Indenture (Physicians Management, LLC), Indenture (Davita Inc)
Limitation on Affiliate Transactions. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiary to, Subsidiaries to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) unless involving aggregate value in excess of $100.0 million unless:
(i) the terms thereof (1) of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2ii) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 250.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect Directors. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in Section 6.19(a)(ii) if such transactionAffiliate Transaction is approved by a majority of the Disinterested Directors, if any.
(b) Section 6.19(a) shall not apply to:
(i) any Restricted Payment or other transaction permitted to be made or undertaken pursuant to Section 7.06 hereof (including Permitted Payments), or any Permitted Investment;
(ii) the any issuance, transfer or sale of (a) Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise to an Affiliate any Parent Entity or future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company Borrower, any of its Subsidiaries or any of its Parent Entities and (b) directors’ qualifying shares and shares issued to foreign nationals as required under applicable law;
(iii) any Management Advances and any waiver or transaction with respect thereto;
(iv) (a) any transaction between or among the Borrower and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (b) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company that does not constitute Disqualified StockBorrower and such merger, amalgamation or consolidation is otherwise permitted under this Agreement;
(v) the payment of compensation, fees, costs and expenses to, and the sale to an Affiliate of the Company of Indebtedness indemnities (including Disqualified Stockunder insurance policies) and reimbursements, employment and severance arrangements, and employee benefit and pension expenses provided on behalf of, or for the benefit of, future, current or former employees, directors, officers, managers, contractors, consultants, distributors or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company in connection with an offering Borrower, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through their Controlled Investment Affiliates or Immediate Family Members);
(vi) the entry into and performance of such Indebtedness in a market transaction and on terms substantially identical to those obligations of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company Borrower or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Closing Date, the Conversion Date or entered into on or about the Closing Date or Conversion Date in connection with the Closing Date Transactions or Conversion Date Transactions, as applicable, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 6.19 or to the extent not disadvantageous to the Lenders in any material respect in the reasonable determination of the Borrower when taken as a whole as compared to the applicable agreement as in effect on the Closing Date or Conversion Date or when entered into in connection with the Closing Date Transactions or Conversion Date Transactions, as applicable;
(vii) any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(viii) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practice, (iv) which are fair to the payment of Borrower or the relevant Restricted Subsidiary, in the reasonable fees to directors determination of the Company and its Restricted Subsidiaries who Borrower or are on terms, taken as a whole, that are not employees of the Company materially less favorable as might reasonably have been obtained at such time from an unaffiliated party;
(ix) any transaction between or among Borrower or any Restricted Subsidiary and any Person (including a joint venture, but excluding an Unrestricted Subsidiary) that is an Affiliate of the Borrower or an Associate or similar entity solely because the Borrower or a Restricted Subsidiary or any Affiliate of the Borrower or a Restricted Subsidiary owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(vx) transactions between any issuance, sale or among transfer of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company and its Restricted SubsidiariesBorrower, (vi) transactions between the Company any Parent Entity or any of its Restricted Subsidiaries or options, warrants or other rights to acquire such Capital Stock and Persons the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Borrower or any Restricted Subsidiary;
(xi) [reserved];
(xii) [reserved];
(xiii) the Transactions and the payment of all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related to the Transactions, including Transaction Expenses;
(xiv) transactions in which the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 6.19(a)(i) hereof;
(xv) the existence of, or the performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Closing Date and any similar agreement that it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance by the Borrower or any Restricted Subsidiary (or any Parent Entity) of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Closing Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are controlled (not otherwise, when taken as defined a whole, more disadvantageous to the Lenders in any material respect in the definition reasonable determination of “Affiliate”the Borrower than those in effect on the Closing Date;
(xvi) any purchases by the Company (an “Unrestricted Affiliate”)Borrower’s Affiliates of Indebtedness or Disqualified Stock of the Borrower or any of the Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Borrower’s Affiliates; provided that no such purchases by the Borrower’s Affiliates are on the same terms as such purchases by such Persons who are not the Borrower’s Affiliates;
(i) investments by Affiliates in securities or loans of the Borrower or any of its Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Borrower or such Restricted Subsidiary generally to other Person that controls non-affiliated third party investors on the same or more favorable terms and (as so definedii) payments to Affiliates in respect of securities or loans of the Borrower or any of its Restricted Subsidiaries contemplated in the foregoing subclause (i) or is under common control that were acquired from Persons other than the Borrower and its Restricted Subsidiaries, in each case, in accordance with the Company holds terms of such securities or loans;
(xviii) payments by any Investments Parent Entity, the Borrower and its Restricted Subsidiaries pursuant to any tax sharing or receivable agreements or other equity agreements in respect of Related Taxes among any such Parent Entity, the Borrower and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries;
(xix) payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Borrower 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 (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its 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 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 (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Borrower in good faith;
(xx) 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 or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement between the Borrower or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable determination of the Borrower or entered into in connection with the Transactions;
(xxi) 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 7.05 hereof or entered into with any Business Successor, in each case, that the Borrower determines in good faith is either fair to the Borrower or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(xxii) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Affiliate; Subsidiary is redesignated as a Restricted Subsidiary under Section 6.13 and pledges of Capital Stock of Unrestricted Subsidiaries;
(viii) any lease entered into between the Borrower or any Restricted Payments that are permitted Subsidiary, as lessee, and any Affiliate of the Borrower, as lessor and (ii) any operational services arrangement entered into between the Borrower or any Restricted Subsidiary and any Affiliate of the Borrower, in each case, which is approved as being on arm’s length terms by the provisions reasonable determination of Section 4.05; the Borrower;
(xxiv) intellectual property licenses and (viii) loans or advances to employees research and development agreements in the ordinary course of business or consistent with past practice;
(xxv) payments to or from, and approved transactions with, any Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements or activities related thereto);
(xxvi) the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant to equityholders, investor rights, registration rights or similar agreements;
(xxvii) any Permitted Intercompany Activities, Permitted Tax Restructuring, Intercompany License Agreements and related transactions; and
(xxviii) any Plan Contribution.
(c) In addition, if the Borrower or any of its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the purchase or acquisition by an Affiliate of the Borrower 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’s Board Borrower or a Restricted Subsidiary to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of Directors assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an Affiliate of the Borrower of an interest in all or a portion of the assets or properties sold shall not be deemed an aggregate principal amount not Affiliate Transaction (or cause such sale or other disposition by the Borrower or a Restricted Subsidiary to exceed $2.5 million outstanding at any one timebe deemed an Affiliate Transaction).
Appears in 6 contracts
Samples: Credit Agreement (Frontier Communications Parent, Inc.), Credit Agreement (Frontier Communications Parent, Inc.), Credit Agreement (Frontier Communications Parent, Inc.)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could reasonably be expected to be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 10.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and ; and
(3) if such Affiliate Transaction involves an amount in excess of $25.0 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall Subsidiaries or is not prohibit (i) any sale of hydrocarbons or other mineral products less favorable to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who are was not an Affiliate.
(b) Section 4.12(a) will not prohibit:
(1) any Investment (other than a Permitted Investment) or other Restricted Payment, in each case not prohibited to be made pursuant to Section 4.09;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment and severance arrangements, stock options and stock ownership plans, phantom stock or other incentive plans approved by the Board of Directors;
(3) loans or advances to officers, directors and employees in the ordinary course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time;
(4) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(5) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company;
(6) reasonable fees and reasonable compensation paid to, and indemnity and similar arrangements provided on behalf of, officers, directors and employees of the Company or any Restricted SubsidiarySubsidiary as determined in good faith by the Board of Directors or the Company’s senior management; and
(7) any agreement as in effect on the Issue Date or any renewals, extensions or replacements of any such agreement (v) transactions between so long as such renewals, extensions or among the Company and its Restricted Subsidiaries, (vi) transactions between replacements are not less favorable to the Company or any of its the Restricted Subsidiaries than the original agreement in effect on the Issue Date) and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timetransactions evidenced thereby.
Appears in 4 contracts
Samples: Third Supplemental Indenture (Denbury Resources Inc), First Supplemental Indenture (Denbury Resources Inc), First Supplemental Indenture (Encore Acquisition Co)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, make, amend or permit to exist conduct any transaction (including making a payment to, the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) ), contract, agreement or understanding with or for the benefit of any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could reasonably be expected to be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) either: (a) if such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 10.0 million but not greater than $30.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of Company delivers to the members of the Board of Directors having no personal stake in Trustee an Officers’ Certificate certifying that such Affiliate TransactionTransaction satisfies the criteria in clause (1) above, and or (3b) if such Affiliate Transaction involves an amount aggregate consideration in excess of $25.0 30.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, the Company delivers to the Company Trustee an Officers’ Certificate certifying that such Affiliate Transaction satisfies the criteria in clause (1) above and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as that the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of having no personal pecuniary interest in such transaction.
(b) Section 7.27(a) shall not apply to and does not prohibit:
(1) any Restricted Payment (other than Investments) permitted to be made pursuant to Section 7.23;
(2) any payments, awards or grants in cash, Capital Stock or other property pursuant to, or the funding of, employment or severance agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or insurance and indemnification arrangements provided to or for the sale to an Affiliate benefit of directors and employees approved by the Board of Directors of the Company Company;
(3) loans or advances to employees, officers or directors in the ordinary course of Indebtedness (including Disqualified Stock) business of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in an aggregate outstanding principal amount not to exceed $5.0 million;
(4) advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees business of the Company or any of its Restricted Subsidiaries;
(5) any transaction to the extent between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with the Indenture;
(v6) transactions between or among 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 such Person;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company to, or the receipt by the Company of any capital contribution from its shareholders;
(8) indemnities of officers, directors and its Restricted Subsidiaries, (vi) transactions between employees of the Company or any of its Restricted Subsidiaries permitted by bylaw or statutory provisions and Persons that are controlled (as defined any employment agreement or other employee compensation plan or arrangement entered into in the definition ordinary course of “Affiliate”) business by the Company or any of its Restricted Subsidiaries;
(an “Unrestricted Affiliate”); 9) the payment of reasonable compensation and fees paid to, and indemnity provided that no other Person that controls (as so defined) on behalf of, officers or is under common control with directors of the Company holds or any Investments Restricted Subsidiary;
(10) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and which is disclosed on Schedule 7.27 hereto, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted only to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Company and its Restricted Subsidiaries than the terms of the agreements in such Unrestricted Affiliate; effect on the Issue Date;
(vii11) Restricted Payments that are permitted by the provisions transactions with customers, clients, suppliers, or purchasers or sellers of Section 4.05; and (viii) loans goods or advances to employees services, in each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture, provided, however that in the reasonable determination of the Board of Directors of the Company or the senior management of the Company, such transactions are on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an aggregate principal amount arm’s-length basis from a Person that is not an Affiliate of the Company; and
(12) transactions between the Company or any Restricted Subsidiary and any Person, a director of which is also a director of the Company or any direct or indirect parent company of the Company, and such director is the sole cause for such Person to exceed $2.5 million outstanding at be deemed an Affiliate of the Company or any one timeRestricted Subsidiary; provided, however, that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any matter involving such other Person.
Appears in 4 contracts
Samples: Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp), Note Purchase Agreement (Goodrich Petroleum Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company Issuer (an “Affiliate Transaction”) unless involving aggregate value in excess of the terms thereof greater of $100.0 million unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of the greater of $15.0 250.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested of the Issuer. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors of the Issuer, if any.
(b) The provisions of Section 3.8(a) above shall not apply to:
(1) any Restricted Payment or other transaction permitted to be made or undertaken pursuant to Section 3.3 (including Permitted Payments) or any Permitted Investment;
(2) any issuance, transfer or sale of (a) Capital Stock (other than Disqualified Stock), options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise to any Parent Entity or future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any of its Parent Entities and (b) directors’ qualifying shares and shares issued to foreign nationals as required under applicable law;
(3) any Management Advances and any waiver or transaction with respect to thereto;
(4) (a) any transaction between or among the Issuer and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (iib) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified StockIssuer and such merger, amalgamation or consolidation is otherwise permitted under this Indenture;
(5) the payment of compensation, fees, costs and expenses to, and the sale to an Affiliate of the Company of Indebtedness indemnities (including Disqualified Stockunder insurance policies) and reimbursements, employment and severance arrangements, and employee benefit and pension expenses provided on behalf of, or for the benefit of, future, current or former employees, directors, officers, managers, contractors, consultants, distributors or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company in connection with an offering Issuer, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through their Controlled Investment Affiliates or Immediate Family Members);
(6) the entry into and performance of such Indebtedness in a market transaction and on terms substantially identical to those obligations of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company Issuer or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not disadvantageous in any material respect in the reasonable determination of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(7) any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practice, (iv) which are fair to the payment of Issuer or the its Restricted Subsidiaries, in the reasonable fees to directors determination of the Company and its Restricted Subsidiaries who Issuer, or are on terms, taken as a whole, that are not employees of the Company or materially less favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) any Restricted Subsidiary, (v) transactions transaction between or among the Company Issuer or any Restricted Subsidiary and its any Person (including a joint venture, but excluding an Unrestricted Subsidiary) that is an Affiliate of the Issuer or an Associate or similar entity solely because the Issuer or a Restricted SubsidiariesSubsidiary or any Affiliate of the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(vi10) transactions between any issuance, sale or transfer of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company Issuer, any Parent Entity or any of its Restricted Subsidiaries or options, warrants or other rights to acquire such Capital Stock and Persons the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Issuer or any Restricted Subsidiary;
(11) [reserved];
(12) [reserved];
(13) the Transactions and the payment of all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related to the Transactions, including Transaction Expenses;
(14) 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 are controlled such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1);
(as defined in 15) the definition of “Affiliate”) existence of, or the performance by the Company Issuer or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (an “Unrestricted Affiliate”)including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it (or any Parent Entity) may enter into thereafter; provided that no the existence of, or the performance by the Issuer or any Restricted Subsidiary (or any Parent Entity) of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise, when taken as a whole, more disadvantageous to the Holders in any material respect in the reasonable determination of the Issuer than those in effect on the Issue Date;
(16) any purchases by the Issuer’s Affiliates of Indebtedness or Disqualified Stock of the Issuer or any of the Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Issuer’s Affiliates; provided that such purchases by the Issuer’s Affiliates are on the same terms as such purchases by such Persons who are not the Issuer’s Affiliates;
(17) (i) investments by Affiliates in securities or loans of the Issuer or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Issuer or such Restricted Subsidiary generally to other Person that controls non-affiliated third party investors on the same or more favorable terms and (as so definedii) payments to Affiliates in respect of securities or loans of the Issuer or any of the Restricted Subsidiaries contemplated in the foregoing subclause (i) or is under common control that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the Company holds terms of such securities or loans;
(18) payments by any Investments Parent Entity, the Issuer and its Restricted Subsidiaries pursuant to any tax sharing or receivable agreements or other equity agreements in respect of Related Taxes among any such Unrestricted Affiliate; (vii) Parent Entity, the Issuer and its Restricted Payments that are permitted by Subsidiaries on customary terms to the provisions extent attributable to the ownership or operation of Section 4.05; the Issuer and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.its Subsidiaries;
Appears in 4 contracts
Samples: Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate value in excess of the terms thereof greater of $37.5 million and 1.5% of Total Assets unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 50.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including a majority of the members Disinterested Directors of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted SubsidiariesCompany.
(b) The provisions of Section 4.08(a3.8(a) above shall not prohibit apply to:
(i1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment;
(2) any issuance or sale of hydrocarbons Capital Stock, options, other equity-related interests or other mineral products securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to an Affiliate purchase Capital Stock of the Company or any Restricted Subsidiary, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the entering into or performance Board of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate Directors of the Company, in each case, case in the ordinary course of business, so long business or consistent with past practice;
(3) (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as the terms a result of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction), or between or among Restricted Subsidiaries;
(ii4) the sale to an Affiliate payment of compensation, fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, contractors, consultants, distributors or employees of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, or any Restricted Subsidiary (whether directly or indirectly and the sale to an including through any Controlled Investment Affiliate of such directors, officers, contractors, consultants, distributors or employees);
(5) the Company entry into and performance of Indebtedness (including Disqualified Stock) obligations of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not more disadvantageous to the Holders in any material respect;
(6) any transaction effected as part of a Securitization Facility, Floor Plan Facility or Receivables Facility, any disposition or acquisition of Securitization Assets, Vehicle Assets Receivables Assets or related assets in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility and any repurchase of Securitization Assets, Vehicle Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation;
(7) transactions with customers, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness consistent with past practice, which (ivx) are fair to the payment Company or the relevant Restricted Subsidiary in the reasonable determination of reasonable fees to directors the Board of Directors of the Company or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party and its (y) otherwise comply with the terms of this Indenture;
(8) any transaction between or among the Company or any Restricted Subsidiaries who are not employees Subsidiary and any Person that is an Affiliate of the Company or an Associate or similar entity solely because the Company or a Restricted Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(9) issuances or sales of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary, ;
(v10) transactions between or among 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 Section 3.8(a)(1);
(11) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect;
(12) any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of the Restricted Subsidiaries, Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(vi13) transactions between (i) investments by Affiliates in securities or loans of the Company or any of its Restricted Subsidiaries and Persons that are controlled (so long as defined in the definition of “Affiliate”) investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and the majority of such investments are purchased by Persons who are not the Company’s Affiliates and (an “Unrestricted Affiliate”); provided that no other Person that controls (as so definedii) payments to Affiliates in respect of securities or loans of the Company or any of its Restricted Subsidiaries contemplated in the foregoing clause 17(i) or is under common control that were acquired from Persons other than the Company and its Restricted Subsidiaries, in each case, in accordance with the Company holds any Investments in terms of such Unrestricted Affiliate; securities or loans;
(vii14) Restricted Payments that are permitted payments by the provisions Company and its Restricted Subsidiaries pursuant to the Tax Receivable Agreement;
(15) payments, Indebtedness and Disqualified Stock (and cancellation of Section 4.05any 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, contractor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment agreements, stock option plans and other compensatory arrangements (viiiand any successor plans thereto) loans and any supplemental executive retirement benefit plans or advances to arrangements with any such employees, directors, officers, contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Company in good faith;
(16) employment and severance arrangements between the Company or its Restricted Subsidiaries and their respective officers, directors, contractors, consultants, distributors and employees in the ordinary course of business business;
(17) 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 3.5 or entered into with any Business Successor, in each case, that the Company determines in good faith is either fair to the Company or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(18) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described in Section 3.16 and pledges of Capital Stock of Unrestricted Subsidiaries;
(19) (i) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor, and (ii) any operational service arrangement entered into between the Company or any Restricted Subsidiary and any Affiliate of the Company, in each case which is approved by a majority of the Disinterested Directors;
(20) intellectual property licenses in the ordinary course of business;
(21) payments to or from, and transactions with, any joint venture in the ordinary course of business or consistent with past practice (including any cash management activities related thereto);
(22) the payment of costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement;
(23) any transaction made pursuant to the Exchange Agreement; and
(24) transactions and agreements disclosed in the Company’s Board definitive proxy statement filed with the Securities and Exchange Commission on March 11, 2020. In addition, if the Company or any of Directors its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the 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 aggregate principal amount 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 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 exceed $2.5 million outstanding at any one timebe deemed an Affiliate Transaction).
Appears in 3 contracts
Samples: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit make any 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 an arms-length basis and (ii) the Company delivers to exist any transaction the Trustee (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any servicea) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10 million, a Board Resolution 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 Company disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $25 million, an “Affiliate Transaction”) unless opinion as to the terms thereof (1) are no less favorable fairness to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.point of view issued by an investment banking firm of national standing; provided that:
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons transactions or other mineral products payments pursuant to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement arrangements or other compensation plan employee, officer or arrangement existing on the Issue Date director benefit plans or thereafter arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (vii) transactions between or among the Company and and/or its Restricted Subsidiaries;
(iii) any Restricted Payment permitted by Section 4.07 of the type described in clause (i) or (ii) of the first paragraph thereof;
(iv) customary loans, advances, fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(viv) transactions entered into on an arms-length basis in the ordinary course of business between the Company or any of its Restricted Subsidiaries and Persons that are controlled any Joint Venture;
(as defined vi) sales (including a sale in the definition exchange for a promissory note of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments Equity Interest in such Unrestricted AffiliateAccounts Receivable Subsidiary) of accounts receivable and the provision of billing, collection and other services in connection therewith, in each case, to an Accounts Receivable Subsidiary in connection with any Receivables Facility; and
(vii) transactions pursuant to any contract or agreement in effect on the date of the Indenture as the same may be amended, modified or replaced from time to time so long as any such contract or agreement as so amended, modified or replaced is, taken as a whole, no less favorable to the Company and its Restricted Payments that are permitted Subsidiaries than the contract or agreement as in effect on the date of the Indenture (as conclusively evidenced by a Board Resolution); in each case, shall not be deemed to be Affiliate Transactions and therefore not subject to the provisions requirements of Section 4.05; clauses (i) and (viiiii) loans or advances to employees in of the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeinitial sentence above.
Appears in 3 contracts
Samples: Indenture (Lyondell Chemical Nederland LTD), Indenture (Lyondell Chemical Nederland LTD), Indenture (Lyondell Chemical Nederland LTD)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit make any 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 an arm's-length basis and (ii) the Company delivers to exist any transaction the Trustee (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any servicea) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10 million, a Board Resolution 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 Company disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $25 million, an “Affiliate Transaction”) unless opinion as to the terms thereof (1) are no less favorable fairness to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.point of view issued by an investment banking firm of national standing; provided that:
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons transactions or other mineral products payments pursuant to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement arrangements or other compensation plan employee, officer or arrangement existing on the Issue Date director benefit plans or thereafter arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (vii) transactions between or among the Company and and/or its Restricted Subsidiaries;
(iii) any Restricted Payment permitted by Section 4.07 of the type described in clause (i) or (ii) of the first paragraph thereof;
(iv) customary loans, advances, fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(viv) transactions entered into on an arm's-length basis in the ordinary course of business between the Company or any of its Restricted Subsidiaries and Persons that are controlled any Joint Venture;
(as defined vi) sales (including a sale in the definition exchange for a promissory note of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments Equity Interest in such Unrestricted AffiliateAccounts Receivable Subsidiary) of accounts receivable and the provision of billing, collection and other services in connection therewith, in each case, to an Accounts Receivable Subsidiary in connection with any Receivables Facility; and
(vii) transactions pursuant to any contract or agreement in effect on the date of the Indenture as the same may be amended, modified or replaced from time to time so long as any such contract or agreement as so amended, modified or replaced is, taken as a whole, no less favorable to the Company and its Restricted Payments that are permitted Subsidiaries than the contract or agreement as in effect on the date of the Indenture (as conclusively evidenced by a Board Resolution); in each case, shall not be deemed to be Affiliate Transactions and therefore not subject to the provisions requirements of Section 4.05; clauses (i) and (viiiii) loans or advances to employees in of the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeinitial sentence above.
Appears in 3 contracts
Samples: Indenture (Lyondell Chemical Nederland LTD), Indenture (Lyondell Chemical Co), Indenture (Lyondell Chemical Nederland LTD)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, make, amend or permit to exist conduct any transaction (including making a payment to, the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) ), contract, agreement or understanding with or for the benefit of any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could reasonably be expected to be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) either: (a) if such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 10.0 million but not greater than $30.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of Company delivers to the members of the Board of Directors having no personal stake in Trustee an Officers’ Certificate certifying that such Affiliate TransactionTransaction satisfies the criteria in clause (1) above, and or (3b) if such Affiliate Transaction involves an amount aggregate consideration in excess of $25.0 30.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, the Company delivers to the Company Trustee an Officers’ Certificate certifying that such Affiliate Transaction satisfies the criteria in clause (1) above and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as that the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of having no personal pecuniary interest in such transaction.
(b) Section 4.14(a) shall not apply to and does not prohibit:
(1) any Restricted Payment permitted to be made pursuant to Section 4.10 or any Permitted Investment;
(2) any payments, awards or grants in cash, Capital Stock or other property pursuant to, or the funding of, employment or severance agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or insurance and indemnification arrangements provided to or for the sale to an Affiliate benefit of directors and employees approved by the Board of Directors of the Company Company;
(3) loans or advances to employees, officers or directors in the ordinary course of Indebtedness (including Disqualified Stock) business of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in an aggregate outstanding principal amount not to exceed $5.0 million;
(4) advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees business of the Company or any of its Restricted Subsidiaries;
(5) any transaction to the extent between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with the Indenture;
(v6) transactions between or among 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 such Person;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company to, or the receipt by the Company of any capital contribution from its shareholders;
(8) indemnities of officers, directors and its Restricted Subsidiaries, (vi) transactions between employees of the Company or any of its Restricted Subsidiaries permitted by bylaw or statutory provisions and Persons that are controlled (as defined any employment agreement or other employee compensation plan or arrangement entered into in the definition ordinary course of “Affiliate”) business by the Company or any of its Restricted Subsidiaries;
(an “Unrestricted Affiliate”); 9) the payment of reasonable compensation and fees paid to, and indemnity provided that no other Person that controls (as so defined) on behalf of, officers or is under common control with directors of the Company holds or any Investments Restricted Subsidiary;
(10) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted only to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Company and its Restricted Subsidiaries than the terms of the agreements in such Unrestricted Affiliate; effect on the Issue Date;
(vii11) Restricted Payments that are permitted by the provisions transactions with customers, clients, suppliers, or purchasers or sellers of Section 4.05; and (viii) loans goods or advances to employees services, in each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture, provided that in the reasonable determination of the Board of Directors of the Company or the senior management of the Company, such transactions are on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an aggregate principal amount arm’s-length basis from a Person that is not an Affiliate of the Company; and
(12) transactions between the Company or any Restricted Subsidiary and any Person, a director of which is also a director of the Company or any direct or indirect parent company of the Company, and such director is the sole cause for such Person to exceed $2.5 million outstanding at be deemed an Affiliate of the Company or any one timeRestricted Subsidiary; provided, however, that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any matter involving such other Person.
Appears in 3 contracts
Samples: Supplemental Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp), Purchase Agreement (Goodrich Petroleum Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make any transaction (including contract, agreement, understanding, loan, advance or Guarantee with, or for the purchasebenefit of, saleany Affiliate, lease any Partner or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of any Partner (each of the Company (foregoing, an “"Affiliate Transaction”) "), unless the terms thereof (1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sa comparable arm's-length dealings transaction with a Person who that is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or and (2) the entering into or performance Company delivers to the Trustee (a) with respect to any Affiliate Transaction involving aggregate consideration in excess of Oil and Gas Hedging Contracts$10 million, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate a resolution of the Company, Partnership Governance Committee set forth in each case, in the ordinary course of business, so long as the terms of any an Officers' Certificate certifying that such transaction are Affiliate Transaction complies with clause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors who are disinterested Partnership Governance Committee and (b) with respect to such transactionany Affiliate Transaction involving aggregate consideration in excess of $25 million, (ii) an opinion as to the sale fairness to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering or such Restricted Subsidiary of such Indebtedness in Affiliate Transaction from a market transaction and on terms substantially identical to those financial point of other purchasers in such market transaction, view issued by an investment banking firm of national standing; provided that:
(iiii) transactions contemplated by or payments pursuant to any employment agreement arrangements or other compensation plan employee, officer or arrangement existing on the Issue Date director benefit plans or thereafter arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (vii) transactions between or among the Company and and/or its Restricted Subsidiaries;
(iii) customary loans, advances, fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(viiv) transactions in the ordinary course of business between the Company or any of its Restricted Subsidiaries and Persons that are controlled any Partner or Affiliate of any Partner, provided that, with respect to any such Affiliate Transaction involving aggregate consideration in excess of $25 million, such Affiliate Transaction complies with clause (1) above and has been approved by the Partnership Governance Committee, including a majority of the disinterested members (if any);
(v) sales (including a sale in exchange for a promissory Note of or equity interest in such Accounts Receivable Subsidiary) of accounts receivable, related assets and the provision of billing, collection and other services in connection therewith, in each case, to an Accounts Receivable Subsidiary in connection with any Receivables Facility;
(vi) transactions pursuant to any contract or agreement in effect on the Issue Date, as the same may be amended, modified or replaced from time to time, so long as any such contract or agreement as so amended, modified or replaced is, taken as a whole, no less favorable to the Company and its Restricted Subsidiaries in any material respect than the contract or agreement as in effect on the Issue Date (as defined in conclusively evidenced by a resolution of the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”Partnership Governance Committee); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; ;
(vii) any transaction or series of transactions between the Company or any Restricted Payments Subsidiary and any of their Joint Ventures, provided that are permitted by the provisions (A) such transaction or series of Section 4.05; and (viii) loans or advances to employees transactions is in the ordinary course of business between the Company or such Restricted Subsidiary and such Joint Venture, and (B) with respect to any such Affiliate Transaction involving aggregate consideration in excess of $25 million, such Affiliate Transaction complies with clause (1) above and such Affiliate Transaction has been approved by the Company’s Board Partnership Governance Committee, including a majority of Directors the disinterested members (if any); and
(viii) any Restricted Payment of the type described in an aggregate principal amount clause (1) or (2) of the first paragraph of Section 4.07 and any Permitted Dividend; in each case, shall not be deemed to exceed $2.5 million outstanding at any one timebe Affiliate Transactions and therefore (except as otherwise specified in such clauses) not subject to the requirements of clauses (1) and (2) of the initial paragraph above.
Appears in 3 contracts
Samples: Indenture (Lyondell Chemical Co), Indenture (Equistar Funding Corp), Indenture (Equistar Chemicals Lp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless (1) the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2) if such Affiliate Transaction involves an amount in excess of $15.0 2.5 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, ; and (3) if such Affiliate Transaction involves an amount in excess of $25.0 10.0 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate be made pursuant to Section 4.04; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors; (3) loans or advances to employees or consultants in the ordinary course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the entering into aggregate outstanding at any one time; (4) the payment of reasonable fees and compensation to, or performance the provision of Oil employee benefit arrangements and Gas Hedging Contractsindemnity for the benefit of, gas gatheringdirectors, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate officers, employees and consultants of the Company, in each case, Company and its Restricted Subsidiaries in the ordinary course of business; (5) any transaction between or among the Company, so long as any Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the terms Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (6) the issuance or sale of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including other than Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany; (7) the existence of, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into 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) or warrant agreement to which it is a party as of the Merger 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 Merger 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 disadvantageous to the Holders in the ordinary course of business, any material respect; (iv) 8) the payment of reasonable fees and other expenses to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiarybe paid by Parent, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries in connection with the Merger; (9) any agreement as in effect on the Merger Date and Persons that are controlled (as defined described in the definition Offering Circular or any renewals, extensions or amendments of “Affiliate”) by any such agreement (so long as such renewals, extensions or amendments are not less favorable to the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by Subsidiaries)and the provisions of Section 4.05transactions evidenced thereby; and (viii10) loans transactions with customers, clients, suppliers or advances to employees purchasers or sellers of goods or services in each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of the applicable Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors in 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 aggregate principal amount not to exceed $2.5 million outstanding at any one timeunaffiliated party.
Appears in 3 contracts
Samples: Indenture (Cb Richard Ellis Services Inc), Indenture (Koll Donald M), Indenture (Cb Richard Ellis Services Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $25.0 million, unless the terms thereof thereof:
(1) are no not materially less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate 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 the relevant Restricted Subsidiary from a financial point of view; and
(2) if such Affiliate Transaction involves an amount in excess of $15.0 50.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser . The following items will not be deemed to be fairAffiliate Transactions under this Indenture and, from a financial standpointtherefore, will not be subject to the provisions of foregoing paragraph:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company and or any of its Restricted Subsidiaries.Subsidiaries in the ordinary course of business and payments pursuant thereto;
(b) The provisions of Section 4.08(a) shall not prohibit (i2) any sale of hydrocarbons Hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas contracts for exploring for, producing, gathering, transportation marketing, processing, storing or processing otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, entered into in the ordinary course of businessbusiness which are fair to the Company and its Restricted Subsidiaries taken as a whole, so long or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, as determined in good faith by the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, Company;
(ii3) the sale or issuance to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, ;
(iii4) transactions contemplated by any employment agreement 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 other compensation plan through a Restricted Subsidiary of the Company, Capital Stock in, or arrangement existing on the Issue Date or thereafter entered into by controls, such Person;
(5) transactions between the Company or any Restricted Subsidiary of its 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 Subsidiaries in Subsidiary; provided that such director shall abstain from voting as a director of the ordinary course of business, Company on any matter involving such other person;
(iv6) the payment of reasonable fees to and reimbursements of expenses (including travel and entertainment expenses and similar expenditures in the ordinary course of business) of employees, officers, directors of the Company and its Restricted Subsidiaries who are not employees or consultants of the Company or any Restricted Subsidiary, of its Subsidiaries;
(v7) transactions between or among the Company and its Restricted Subsidiaries, ;
(vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) 8) Restricted Payments that are permitted by the provisions of Section 4.05; 3.3 or Permitted Investments;
(9) sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with any Qualified Receivables Transaction;
(viii10) transactions effected in accordance with the terms of any agreement to which the Company or any Restricted Subsidiary of the Company is a party as of the Issue Date and scheduled in this Indenture, and any amendments, modifications, supplements, extensions, renewals or replacements thereof so long as such amendments, modifications, supplements, extensions, renewals or replacements do not materially and adversely affect the rights, taken as a whole, of the Holders of the Securities as compared to the terms of such agreement in effect on the Issue Date, as determined in good faith by the Company;
(11) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the preceding paragraph;
(12) loans or advances to employees employees, officers or directors in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 7.5 million outstanding at any one time; and
(13) (a) Guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for Guarantees of Indebtedness and (b) pledges by the Company or any Restricted Subsidiary of the Company of (or any Guarantee by the Company or any Restricted Subsidiary limited in recourse solely to) Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries.
Appears in 3 contracts
Samples: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make any transaction (including contract, agreement, understanding, loan, advance or Guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”), unless:
(i) unless the terms thereof (1) are such Affiliate Transaction is on a basis no less favorable to the Company or such and its Restricted Subsidiary Subsidiaries than those that could be obtained at the time of such in a comparable transaction in on an arm’s-length dealings basis with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, or, if no such comparable transaction with a Person who is not an Affiliate of the Company is available, on terms that are fair from a financial point of view to the Company or such Restricted Subsidiary; and
(ii) the Company delivers to the Trustee (A) with respect to any Affiliate Transaction involving aggregate net consideration in each caseexcess of $25 million, a Board Resolution set forth in the ordinary course of business, so long as the terms of any an Officer’s Certificate certifying that such transaction are 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 who are disinterested and (B) with respect to any Affiliate Transaction involving aggregate net consideration in excess of $50 million, a Board Resolution set forth in an Officer’s Certificate certifying that such transactionAffiliate 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, (ii) if any, or if there are no such disinterested members, then the sale Company shall have received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that the terms of such Affiliate Transaction are not materially less favorable to the Company or the applicable Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm’s length basis with a Person who is not an Affiliate of the Company of Capital Stock of or that such terms are fair to the Company that does or the applicable Restricted Subsidiary from a financial point of view.
(b) Notwithstanding the foregoing, the following shall not constitute Disqualified Stock, be deemed to be Affiliate Transactions and therefore not subject to the sale to an Affiliate requirements of the Company of Indebtedness Section 4.10(a):
(including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iiii) transactions contemplated by or payments pursuant to any employment agreement arrangements or other compensation plan employee, officer or arrangement existing on the Issue Date director benefit plans or thereafter arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (vii) transactions between or among the Company and and/or its Restricted Subsidiaries;
(iii) any Restricted Payment permitted by Section 4.07 and any Permitted Investment;
(iv) customary loans, advances, fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(viv) transactions entered into between or among the Company or any of its Restricted Subsidiaries and Persons any Joint Venture, or other Affiliate that would otherwise be subject to this covenant solely because the Company or a Restricted Subsidiary owns any Capital Stock of or otherwise controls such Person, on a basis no less favorable to the Company or such Restricted Subsidiary than could be obtained in a comparable transaction on an arm’s-length basis with a Person who is not an Affiliate of the Company, or, if no such comparable transaction with a Person who is not an Affiliate of the Company is available, on terms that are controlled fair from a financial point of view to the Company or such Restricted Subsidiary;
(vi) sales (including a sale in exchange for a promissory note of or Equity Interest in such Accounts Receivable Subsidiary) of accounts receivable and the provision of billing, collection and other services in connection therewith, in each case, to an Accounts Receivable Subsidiary in connection with any Receivables Facility;
(vii) transactions pursuant to any contract or agreement in effect on the date of the Indenture as the same may be amended, modified or replaced from time to time so long as any such contract or agreement as so amended, modified or replaced is, taken as a whole, no less favorable to the Company and its Restricted Subsidiaries than the contract or agreement as in effect on the date of the Indenture (as defined conclusively evidenced by a Board Resolution);
(viii) transactions effected pursuant to the terms of an agreement that was entered into, alone or as part of a series of agreements, pursuant to or in accordance with this Section 4.10;
(ix) transactions entered into by a Person prior to the time such Person becomes a Subsidiary or is merged or consolidated into the Company or a Subsidiary (provided such transaction is not entered into in contemplation of such event);
(x) dividends and distributions to the Company and its Restricted Subsidiaries by any Unrestricted Subsidiary or Joint Venture;
(xi) tax, administrative, cost-sharing and similar agreements between the Company or any Restricted Subsidiary and any permitted holding company referenced in the definition of “Affiliate”) by Change of Control” on terms that are fair from a financial point of view to the Company or such Restricted Subsidiary; and
(an “Unrestricted Affiliate”); provided that no xii) transactions with any customer, client, supplier, distributor or any other Person that controls (as so defined) purchase or is under common control with the Company holds any Investments sale of goods or services, in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture, which when taken together with other transactions with the same Person are, in the reasonable determination of the Board of Directors of the Company or the senior management of the Company, fair to the Company and its Restricted Subsidiaries or are on terms not less favorable than might have been obtained in a comparable transaction at such time on an aggregate principal amount arm’s length basis from a Person who is not to exceed $2.5 million outstanding at any one timean Affiliate.
Appears in 3 contracts
Samples: Indenture (Lyondell Chemical Co), Indenture (Lyondell Chemical Co), Indenture (Lyondell Refining LP, LLC)
Limitation on Affiliate Transactions. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company Issuer (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable to the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 €20 million, are set forth in writing and the terms of such transaction have been approved by a majority of the members of the Board of Directors, including Directors and by a majority of the members of the Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above). The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of a Restricted Subsidiary of the Issuer (a “Restricted Subsidiary Affiliate Transaction”) unless:
(1) the terms of such Restricted Subsidiary Affiliate Transaction are no less favorable to the Issuer or such Restricted Subsidiary, and as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s length dealings with a Person who is not such an Affiliate; and
(32) if in the event such Restricted Subsidiary Affiliate Transaction involves an aggregate amount in excess of $25.0 €5 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to and by a majority of the members of the Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Restricted Subsidiary Affiliate Transaction satisfies the criteria in clause (1) the sale above).
(a) Section 4.10(a) will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to an Affiliate be made pursuant to Section 4.4;
(2) any issuance of the Company of Capital Stock of the Company that does not constitute Disqualified Stocksecurities, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan payments, awards or arrangement existing on grants in cash, securities or otherwise pursuant to, or the Issue Date funding of, employment arrangements, stock options and stock ownership plans and other reasonable fees, compensation, benefits and indemnities paid or thereafter entered into by the Company Issuer or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees business to directors or with members of the Company Board of Directors, officers or employees of the Issuer and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) approved by the Company Board of Directors;
(an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii3) loans or advances to employees in the ordinary course of business of the Issuer or any of its Restricted Subsidiaries and approved by consistent with past practice of the Company’s Board of Directors in an aggregate principal amount Issuer or such Restricted Subsidiary; provided that such loans or advances do not to exceed $2.5 2 million in the aggregate outstanding at any one time.;
(4) any transaction between the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries and Guarantees issued by the Issuer or a Restricted Subsidiary for the benefit of the Issuer or a Restricted Subsidiary as the case may be in accordance with Section 4.3;
(5) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors of the Issuer or any Restricted Subsidiary of the Issuer;
(6) the performance of obligations of the Issuer or any of its Restricted Subsidiaries under the terms of any agreement to which the Issuer or any of its Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are not materially more disadvantageous to the holders of the Notes, taken as a whole, than the terms of the arrangements in place on the Issue Date; and
(7) transactions between the Issuer or any Restricted Subsidiary and Time Warner Inc. or any Affiliate of Time Warner Inc.
Appears in 3 contracts
Samples: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises N.V.), Indenture (CME Media Enterprises B.V.)
Limitation on Affiliate Transactions. (a) The Company ------------------------------------ shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless (1) the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2) if such Affiliate Transaction involves an amount in excess of $15.0 2.5 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, ; and (3) if such Affiliate Transaction involves an amount in excess of $25.0 10.0 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate be made pursuant to Section 4.04; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors; (3) loans or advances to employees or consultants in the ordinary course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the entering into aggregate outstanding at any one time; (4) the payment of reasonable fees and compensation to, or performance the provision of Oil employee benefit arrangements and Gas Hedging Contractsindemnity for the benefit of, gas gatheringdirectors, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate officers, employees and consultants of the Company, in each case, Company and its Restricted Subsidiaries in the ordinary course of business; (5) any transaction between or among the Company, so long as any Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the terms Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (6) the issuance or sale of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including other than Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany; (7) the existence of, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into 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) or warrant agreement to which it is a party as of the Merger 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 Merger 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 disadvantageous to the Holders in the ordinary course of business, any material respect; (iv) 8) the payment of reasonable fees and other expenses to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiarybe paid by Parent, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries in connection with the Merger; (9) any agreement as in effect on the Merger Date and Persons that are controlled (as defined described in the definition Offering Circular or any renewals, extensions or amendments of “Affiliate”) by any such agreement (so long as such renewals, extensions or amendments are not less favorable to the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by Subsidiaries)and the provisions of Section 4.05transactions evidenced thereby; and (viii10) loans transactions with customers, clients, suppliers or advances to employees purchasers or sellers of goods or services in each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of the applicable Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors in 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 aggregate principal amount not to exceed $2.5 million outstanding at any one timeunaffiliated party.
Appears in 3 contracts
Samples: Indenture (Blum Capital Partners Lp), Indenture (Fs Equity Partners Iii Lp), Indenture (Cbre Holding Inc)
Limitation on Affiliate Transactions. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, make, amend or permit to exist conduct any transaction (including making a payment to, the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) ), contract, agreement or understanding with or for the benefit of any Affiliate of the Company Issuer (an “Affiliate Transaction”) unless the terms thereof involving aggregate payments or consideration in excess of $10.0 million unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable to the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, than those that could reasonably be expected to be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, Affiliate or such Affiliate Transaction is otherwise fair to the Issuer or the relevant Restricted Subsidiary from a financial point of view; and
(2) either:
(a) if such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 20.0 million but not greater than $50.0 million, are set forth the Issuer delivers to the Trustee an Officers’ Certificate certifying that such Affiliate Transaction satisfies the criteria in writing and have been approved clause (1) above; or
(b) if such Affiliate Transaction involves an aggregate consideration in excess of $50.0 million, the Issuer delivers to the Trustee a Board Resolution adopted by the Board of DirectorsDirectors of the Issuer, including a majority of the members of the Board of Directors of the Issuer having no personal stake in such Affiliate Transactiontransaction approving the terms of such transaction, if any, and set forth in an Officers’ Certificate certifying that such Affiliate Transaction satisfies the criteria in clause (1) above. The preceding paragraph will not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3 or any Permitted Investment;
(2) any issuance of Capital Stock (other than Disqualified Stock), or other payments, awards or grants in cash, Capital Stock (other than Disqualified Stock) or otherwise pursuant to, or the funding of, employment or severance agreements and other compensation arrangements, options to purchase Capital Stock (other than Disqualified Stock) of the Issuer, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or insurance and indemnification arrangements provided to or for the benefit of directors and employees approved by the Board of Directors of the Issuer;
(3) if such Affiliate Transaction involves an amount in excess of $25.0 millionloans or advances to employees, have been determined by a nationally recognized investment banking officers or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, directors in the ordinary course of businessbusiness of the Issuer or any of its Restricted Subsidiaries;
(4) advances to or reimbursements of employees for moving, so long entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business of the Issuer or any of its Restricted Subsidiaries;
(5) any transaction between the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, and guarantees issued by the Issuer or a Restricted Subsidiary for the benefit of the Issuer or a Restricted Subsidiary, as the terms case may be;
(6) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns, directly or indirectly, an Equity Interest in or otherwise controls such joint venture or similar entity;
(7) the issuance or sale of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including other than Disqualified Stock) of the Company in connection with Issuer to an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionAffiliate, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into receipt by the Company Issuer of any capital contribution from its shareholders;
(8) indemnities of officers, directors and employees of the Issuer or any of its Restricted Subsidiaries permitted by bylaw or statutory provisions and any employment agreement or other employee compensation plan or arrangement entered into in the ordinary course of business, business by the Issuer or any of its Restricted Subsidiaries;
(iv9) the payment of reasonable compensation and fees to paid to, and indemnity provided on behalf of, officers or directors of the Company and its Restricted Subsidiaries who are not employees of the Company Issuer or any Restricted Subsidiary, ;
(v10) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between performance of obligations of the Company Issuer or any of its Restricted Subsidiaries and Persons under the terms of any agreement to which the Issuer or any of its Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted only to the extent that its terms are controlled not materially more disadvantageous, taken as a whole, to the holders of the Notes than the terms of the agreements in effect on the Issue Date;
(as defined 11) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture, provided that in the reasonable determination of the Board of Directors of the Issuer or the senior management of the Issuer, such transactions are on terms not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an aggregate principal amount arm’s-length basis from a Person that is not an Affiliate of the Issuer;
(12) transactions 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 Subsidiary, an Equity Interest in such Person;
(13) 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, and such director is the sole cause for such Person to exceed $2.5 million outstanding at be deemed an Affiliate of the Issuer or any one timeRestricted Subsidiary; provided, however, that such director shall abstain 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; and
(14) any transaction in which the Issuer 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 Issuer or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the first paragraph of this Section 3.8.
Appears in 3 contracts
Samples: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Affiliate Transactions. (a) The Company shall may not, and shall may not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless unless:
(a) the terms thereof (1) of the Affiliate Transaction are no not materially less favorable to the Company or such the Restricted Subsidiary Subsidiary, as the case may be, than those that could be might reasonably have been obtained in a comparable transaction at the time of such transaction in on an arm’s-length dealings with basis from a Person who that is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, ;
(b) in the ordinary course event the Affiliate Transaction involves an aggregate consideration in excess of business$10 million, so long as but not greater than $50 million, the Company delivers to the Trustee an Officers’ Certificate certifying that such Affiliate Transaction satisfies the criteria in clause (a) above; and
(c) in the event the Affiliate Transaction involves an aggregate consideration in excess of $50 million, the Company delivers to the Trustee an Officers’ Certificate certifying that such Affiliate Transaction satisfies the criteria in clause (a) above and that the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company having no personal pecuniary interest in such transaction. The preceding paragraph will not apply to:
(a) any Restricted Payment or Permitted Investment permitted to be made pursuant to Section 3.04 of this First Supplemental Indenture;
(b) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee plans and/or insurance and indemnification arrangements provided to or for the sale benefit of employees and directors approved by the Board of Directors of the Company;
(c) loans or advances to an Affiliate employees, officers or directors in the ordinary course of business of the Company or any of Indebtedness its Restricted Subsidiaries, but in any event not to exceed $2.0 million in the aggregate outstanding at any one time with respect to all loans or advances made since the Issue Date;
(including d) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.02 of this First Supplemental Indenture;
(e) any transaction with a joint venture or other entity other than an Unrestricted Subsidiary which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns, directly or indirectly, an equity interest in or otherwise controls such joint venture or other entity;
(f) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company in connection with an offering or the receipt by the Company of such Indebtedness in a market transaction any capital contribution from its shareholders;
(g) indemnities of officers, directors and on terms substantially identical to those employees of other purchasers in such market transaction, (iii) transactions contemplated the Company or any of its Restricted Subsidiaries permitted by charter documents or statutory provisions and any employment agreement or other employee compensation plan or arrangement existing on the Issue Date or thereafter entered into in the ordinary course of business by the Company or any of its Restricted Subsidiaries in the ordinary course of business, Subsidiaries;
(ivh) the payment of reasonable compensation and fees to paid to, and indemnity provided on behalf of, officers or directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, ;
(vi) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between performance of obligations of the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in under the definition terms of “Affiliate”) by any agreement to which the Company (or any of its Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be so excluded only if its terms are not materially less favorable to the Company or the Restricted Subsidiary, as the case may be, than those that might reasonably have been obtained in a comparable transaction at the time of such transaction on an “Unrestricted Affiliate”); provided that no other arm’s-length basis from a Person that controls is not an Affiliate of the Company; and
(as so definedj) transactions with customers, clients, suppliers, or is under common control with the Company holds any Investments purchasers or sellers of goods or services, in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture which are fair to the Company and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors in 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 aggregate principal amount not to exceed $2.5 million outstanding at any one timeunaffiliated party.
Appears in 2 contracts
Samples: First Supplemental Indenture (Unit Corp), First Supplemental Indenture (Unit Corp)
Limitation on Affiliate Transactions. (a) The Neither the Issuers nor the Company shall notwill, and shall the Company will not permit any Restricted Subsidiary to, directly or indirectly, enter into or permit to exist conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with or for the benefit of any Affiliate of the Company (an “"Affiliate Transaction”") unless unless: (a) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Issuers or the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2b) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 U.S.$5 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are of such Person and by a majority of the disinterested with respect members of such Board, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in (a) above); and (c) in the event such Affiliate Transaction involves an aggregate amount in excess of U.S.$10 million, such Person has received a written opinion from an independent investment banking firm or other similar expert of nationally recognized standing that such Affiliate Transaction (i) is fair to the Issuers or the Company or such transactionRestricted Subsidiary, as the case may be, from a financial point of view, or (ii) complies with the sale requirements of clause (a) above. The foregoing paragraph shall not apply to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale (a) any Restricted Payment permitted to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical be made pursuant to those of other purchasers in such market transactionSection 4.04, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiib) loans or advances to employees in the ordinary course of business and approved by of the Company’s Board of Directors Company and/or any Subsidiary in an aggregate principal amount outstanding not to exceed $2.5 U.S.$l million outstanding at any one time, (c) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company or any Subsidiary, in each case in the ordinary course of business, (d) transactions pursuant to agreements in existence on the Issue Date which (x) are described in the Offering Memorandum or (y) otherwise, in the aggregate, are immaterial to the Issuers, the Company and the Restricted Subsidiaries taken as a whole, (e) any employment, noncompetition or confidentiality agreements entered into with its employees in the ordinary course of business, (f) the issuance of Capital Stock (other than Disqualified Stock) of the Issuers to the Company and (g) sublease arrangements on commercial terms covering shared space.
Appears in 2 contracts
Samples: Indenture (NSM Steel Co LTD), Indenture (NSM Steel Co LTD)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company in an amount greater than $1.0 million in any transaction or series of related transactions (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary than those that could reasonably be expected to be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 5.0 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including a majority of the members directors 0000-0000-0000 of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if Company disinterested with respect to such Affiliate Transaction involves an amount have determined in excess of $25.0 million, good faith that the criteria set forth in clause (1) are satisfied and have been determined approved the relevant Affiliate Transaction as evidenced by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.Board Resolution; and
(b) The provisions of Section 4.08(a4.05(a) shall not prohibit prohibit:
(i1) any sale of hydrocarbons employment agreement or other mineral products to an Affiliate of employee compensation plan or arrangement in existence on the Company Issue Date or the entering entered into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, thereafter in the ordinary course of businessbusiness including any issuance of securities, so long as or other payments, awards or grants in cash, securities or otherwise pursuant to, or the terms of any such transaction are funding of, employment arrangements, stock options and stock ownership plans approved by a majority of the members of the Board of Directors who are disinterested Directors;
(2) loans or advances to employees (or cancellations thereof) in the ordinary course of business in accordance with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company or its Subsidiaries, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time;
(3) advances to or reimbursements of Capital Stock employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case in the ordinary course of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate business of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, Subsidiaries;
(iv4) the payment of reasonable compensation and fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Subsidiaries;
(5) any Restricted Subsidiarytransaction between the REIT, the Company, the Operating Partnership and/or their respective Subsidiaries;
(v6) transactions between or among indemnities of officers, directors and employees of the Company or any Subsidiary consistent with applicable charter, by-law or statutory provisions;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company or the receipt by the Company of a cash capital contribution from its stockholders;
(8) transactions with Joint Ventures, customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and its Restricted Subsidiariesotherwise in compliance with the terms of this Indenture, provided that in the reasonable determination of the Board of Directors or the senior management of the Company, such transactions are on terms not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(vi9) transactions between the Company or any Subsidiary and any Person, a director of its Restricted Subsidiaries which is also a director of the Company or any director or indirect parent company of the Company, and Persons such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Subsidiary; provided, however, that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any matter involving such other Person; 0000-0000-0000
(10) any transaction with Affiliates pursuant to arrangements in existence on the Issue Date pursuant to which those Affiliates own, or are controlled (as defined entitled to acquire, working, overriding royalty or other similar interests in the definition of “Affiliate”) particular properties operated by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with any Subsidiary or in which any of the Company holds any Investments in such Unrestricted Affiliate; or one or more Subsidiaries also own an interest;
(vii11) Restricted Payments that are mergers, consolidations or sales of all or substantially all assets permitted by by, and complying with, the provisions of Section 4.05; 5.01, 5.02 and 5.03;
(viii12) loans the execution of the restructuring transactions pursuant to the Plan of Reorganization and the payment of all fees and expenses related thereto or advances to employees in the ordinary course of business and approved required by the Company’s Board Plan of Directors Reorganization; and
(13) transactions undertaken in an aggregate principal amount good faith by the Company for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not to exceed $2.5 million outstanding at for the purpose, or with the effect, of circumventing any one timeprovision set forth in this Indenture.
Appears in 2 contracts
Samples: Indenture (CBL & Associates Limited Partnership), Indenture
Limitation on Affiliate Transactions. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company or a Permitted Affiliate Parent (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of $50.0 million, unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable favorable, taken as a whole, to the Company Company, such Permitted Affiliate Parent or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate (or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company, such Permitted Affiliate Parent or such Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company, such Permitted Affiliate Parent or such Restricted Subsidiary has conclusively determined in good faith to be fair to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary); and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 100.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including either (i) a majority of the members of the Board of Directors having no personal stake in or (ii) senior management of the Company, such Permitted Affiliate TransactionParent, and (3) if or such Affiliate Transaction involves an amount in excess of $25.0 millionRestricted Subsidiary, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesas applicable.
(b) The provisions of Section 4.08(a4.11(a) shall will not prohibit apply to:
(i1) any Restricted Payment permitted to be made pursuant to Section 4.07 or any Permitted Investment;
(2) any issuance or sale of hydrocarbons Capital Stock, options, other equity-related interests or other mineral products to an Affiliate of the Company securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into into, or performance of Oil maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and Gas Hedging Contractsother compensation arrangements, gas gatheringoptions, transportation warrants or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate other rights to purchase Capital Stock of the Company, a Permitted Affiliate Parent, any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultant plans (including, without limitation, valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) and/or indemnities provided on behalf of officers, employees or directors or consultants, in each case, case in the ordinary course of business;
(3) loans or advances to employees, so long as the terms officers or directors (or guarantees in favour of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (iithird parties’ loans and advances) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors business of the Company and its Restricted Subsidiaries who are not employees of the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary, but in any event not to exceed $10.0 million in the aggregate amount outstanding at any one time with respect to all loans or advances made since the Delayed Amendment Effective Date;
(v4) transactions (A) any transaction between or among the Company Company, a Permitted Affiliate Parent and its a Restricted Subsidiaries, Subsidiary (vior an entity that becomes a Restricted Subsidiary in connection with such transaction) transactions or between the Company or any of its among Restricted Subsidiaries and Persons (or an entity that are controlled (as defined becomes a Permitted Affiliate Parent or a Restricted Subsidiary in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”connection with such transaction); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiB) loans any guarantees issued by the Company, a Permitted Affiliate Parent or advances to employees a Restricted Subsidiary for the benefit of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary (or an entity that becomes a Permitted Affiliate Parent or a Restricted Subsidiary in connection with such transaction), as the case may be, in accordance with Section 4.09;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and approved otherwise in compliance with the terms of this Agreement, which, taken as a whole, are fair to the Company, the relevant Permitted Affiliate Parent or the relevant Restricted Subsidiary, as applicable, or are on terms not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(6) loans or advances to any Affiliate of the Company or a Permitted Affiliate Parent by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary; provided that the terms of such loan or advance are fair to the Company or the relevant Permitted Affiliate Parent or the relevant Restricted Subsidiary, as the case may be, or are on terms not materially less favorable than those that could reasonably have been obtained from an unaffiliated party;
(7) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors, executives or officers of any Parent, the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(8) the performance of obligations of the Company, any Permitted Affiliate Parent, or any of the Restricted Subsidiaries under (A) the terms of any agreement to which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries is a party as of or on the Delayed Amendment Effective Date or (B) any agreement entered into after the Delayed Amendment Effective Date on substantially similar terms to an agreement under Section 4.11(b)(8)(A), in each case, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided that any such agreement or amendment, modification, supplement, extension or renewal to such agreement, in each case, entered into after the Delayed Amendment Effective Date will be permitted to the extent that its terms are not materially more disadvantageous to the Finance Parties than the terms of the agreements in effect on the Delayed Amendment Effective Date;
(9) any transaction with (i) a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations or (ii) with an Affiliate in respect of Non-Recourse Indebtedness;
(10) the issuance of Capital Stock or any options, warrants or other rights to acquire Capital Stock (other than Disqualified Stock) of the Company, a Permitted Affiliate Parent or an Affiliate Subsidiary to any Affiliate of the Company, such Permitted Affiliate Parent or such Affiliate Subsidiary;
(11) the payment to any Permitted Holder of all reasonable expenses Incurred by any Permitted Holder in connection with its direct or indirect investment in the Company, a Permitted Affiliate Parent, an Affiliate Subsidiary and their Subsidiaries and unpaid amounts accrued for prior periods;
(12) the payment to any Parent or Permitted Holder (1) of Management Fees (A) on a bona fide arm’s-length basis in the ordinary course of business or (B) of up to the greater of $35.0 million and 0.5% of Total Assets in any calendar year, (2) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including without limitation in connection with loans, capital market transactions, hedging and other derivative transactions, acquisitions or divestitures or (3) of Parent Expenses;
(13) guarantees of indebtedness, hedging and other derivative transactions, and other obligations not otherwise prohibited under this Agreement;
(14) if not otherwise prohibited under this Agreement, the issuance of Capital Stock (other than Disqualified Stock) or Subordinated Shareholder Loans (including the payment of cash interest thereon; provided that after giving pro forma effect to any such cash interest payment, the Consolidated Net Leverage Ratio would not exceed 5.00 to 1.00) of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary to any Parent of the Company, a Permitted Affiliate Parent or an Affiliate Subsidiary or any Permitted Holder;
(15) arrangements with customers, clients, suppliers, contractors, lessors or sellers of goods or services that are negotiated with an Affiliate, in each case, which are otherwise in compliance with the terms of this Agreement; provided that the terms and conditions of any such transaction or agreement as applicable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries, taken as a whole are fair to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries and are on terms not materially less favorable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries than those that could have reasonably been obtained in respect of an analogous transaction or agreement that would not constitute an Affiliate Transaction (or, in the event that there are no comparable transactions involving persons who are not Affiliates of the Company, such Permitted Affiliate Parent or such Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company, such Permitted Affiliate Parent or such Restricted Subsidiary has determined conclusively in good faith to be fair to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary);
(16) (A) transactions with Affiliates in their capacity as holders of indebtedness or Capital Stock of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness or Capital Stock generally and (B) transactions with Affiliates in their capacity as borrowers of indebtedness from the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness generally;
(17) any tax sharing agreement or arrangement and payments pursuant thereto between or among the Ultimate Parent, the Company, a Permitted Affiliate Parent or any other Person or a Restricted Subsidiary not otherwise prohibited by this Agreement and any payments or other transactions pursuant to a tax sharing agreement or arrangement between the Company, a Permitted Affiliate Parent and any other Person or a Restricted Subsidiary and any other Person with which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries files a consolidated tax return or with which the Company, a Permitted Affiliate Parent or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation;
(18) transactions relating to the provision of Intra-Group Services in the ordinary course of business;
(19) the 2015 Columbus Carve-Out and related transactions;
(20) the Transactions and any transaction reasonably necessary to effect such Transactions;
(21) any transaction in the ordinary course of business between or among the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and any Affiliate of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary that is an Unrestricted Subsidiary or a joint venture or similar entity (including a Permitted Joint Venture) that would constitute an Affiliate Transaction solely because the Company, a Permitted Affiliate Parent or a Restricted Subsidiary owns an equity interest in or otherwise controls such Unrestricted Subsidiary, joint venture or similar entity;
(22) commercial contracts entered into in the ordinary course of business between an Affiliate of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and the Company, a Permitted Affiliate Parent or any Restricted Subsidiary that are on arm’s Board length terms or on a basis that senior management of Directors the Company, a Permitted Affiliate Parent or a Restricted Subsidiary reasonably believes allocates costs fairly;
(23) transactions between the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and a Parent and/or an Affiliate, in an aggregate principal amount not each case, to exceed $2.5 million outstanding at effect or facilitate the transfer of any one timeproperty or asset from the Company, any Permitted Affiliate Parent and/or any Restricted Subsidiary to another Restricted Subsidiary, any Permitted Affiliate Parent and/or the Company, as applicable; and
(24) transactions relating to Excess Capacity Network Services; provided that the price payable by any member of the Wider Group in relation to such Excess Capacity Network Services is no less than the cost incurred by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in providing such Excess Capacity Network Services.
Appears in 2 contracts
Samples: Extension Amendment (Liberty Latin America Ltd.), Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate value in excess of the terms thereof greater of $25 million and 2.5% of LTM EBITDA unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess greater of $25.0 million50 million and 5% of LTM EBITDA, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested of the Company. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors of the Company, if any.
(b) The provisions of Section 3.8(a) above shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3 (including Permitted Payments) or any Permitted Investment;
(2) any issuance, transfer or sale of (a) Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise to any Parent Entity, Permitted Holder or future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its Parent Entities and (b) directors’ qualifying shares and shares issued to foreign nationals as required under applicable law;
(3) any Management Advances and any waiver or transaction with respect to thereto;
(4) (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (iib) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, amalgamation or consolidation is otherwise permitted under this Indenture;
(5) the sale payment of compensation, fees, costs and expenses to, and indemnities (including under insurance policies) and reimbursements, employment and severance arrangements, and employee benefit and pension expenses provided on behalf of, or for the benefit of, future, current or former employees, directors, officers, managers, contractors, consultants, distributors or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through their Controlled Investment Affiliates or Immediate Family Members);
(6) the entry into and performance of obligations of the Company or any of the Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not disadvantageous in any material respect in the reasonable determination of the Company to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(7) any transaction in connection with any Permitted Securitization Indebtedness or Permitted Funding Indebtedness;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Company, or are on terms, taken as a whole, that are not materially less favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) any transaction between or among the Company or any Restricted Subsidiary and any Person (including a joint venture or an Unrestricted Subsidiary) that is an Affiliate of the Company of Capital Stock of or an Associate or similar entity solely because the Company that does not constitute Disqualified Stock, and the sale to an or a Restricted Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of Indebtedness any Permitted Holder owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(including 10) any issuance, sale or transfer of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company Parent Entity or any of its Restricted Subsidiaries in or options, warrants or other rights to acquire such Capital Stock and the ordinary course granting of business, registration and other customary rights (iv) and the payment of reasonable fees to directors performance of the Company and its Restricted Subsidiaries who are not employees related obligations) in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(11) (i) payments by the Company or any Restricted Subsidiary (or distributions or dividends by the Company in lieu of such payments) to any Permitted Holder (whether directly or indirectly), including to its affiliates or its designees, of management, consulting, monitoring, refinancing, transaction, advisory, indemnities and other fees, costs and expenses (vplus any unpaid management, consulting, monitoring, transaction, advisory, indemnities and other fees, costs and expenses accrued in any prior year) transactions and any exit and termination fees (including any such cash lump sum or present value fee upon the consummation of a corporate event, including an initial public offering) pursuant to any management services or similar agreements or the management services or other relevant provisions in an investor rights agreement, limited partnership agreement, limited liability company agreement or other equityholders’ agreement, as the case may be, between the Investors or among certain of the management companies associated with the Investors or their advisors or Affiliates, if applicable, with terms reasonably consistent with the terms of similar agreements entered into by similar financial sponsors and portfolio companies as reasonably determined by the Company or any Parent Entity on behalf of the Company at the time such management or similar agreement is entered into by the Investors and the Company and (ii) payments by the Company or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly, including through any Parent Entity) for 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 in the case of each of clauses (i) and (ii) in the reasonable determination of the Company;
(12) payment to any Permitted Holder of all out of pocket expenses incurred by such Permitted Holder in connection with its direct or indirect investment in the Company and its Restricted Subsidiaries;
(13) the Transactions and the payment of all fees, costs and expenses (viincluding all legal, accounting and other professional fees, costs and expenses) related to the Transactions, including Transaction Expenses;
(14) transactions between 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 Section 3.8(a)(1);
(15) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it (or any Parent Entity) may enter into thereafter; provided that the existence of, or the performance by the Company or any Restricted Subsidiary (or any Parent Entity) of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise, when taken as a whole, more disadvantageous to the Holders in any material respect in the reasonable determination of the Company than those in effect on the Issue Date;
(16) any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of its the Restricted Subsidiaries and the majority of which Indebtedness or Disqualified Stock is purchased by Persons that who are controlled (as defined in not the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”)Company’s Affiliates; provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved purchases by the Company’s Board Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(17) (i) investments by Affiliates in securities or loans of Directors the Company or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in an aggregate principal amount not connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to exceed $2.5 million outstanding at any one time.other non-affiliated third party investors on the same or more favorable terms and
Appears in 2 contracts
Samples: Indenture (loanDepot, Inc.), Indenture
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or permit to exist any transaction or series of similar transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements asset or property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”other than any employee stock ownership plan for the benefit of the Company's or a Restricted Subsidiary's employees) unless the terms thereof of such business, transaction or series of transactions are (1i) are no less set forth in writing, (ii) as favorable to the Company or such Restricted Subsidiary than those as terms that could would be obtained obtainable at the time for a comparable transaction or series of such transaction similar transactions in arm’s-arms' length dealings with an unrelated third Person and (iii) a Person who is not majority of the disinterested members of the Board of Directors have, by resolution, determined in good faith that such an Affiliatebusiness or transaction or series of transactions meets the criteria set forth in (ii) above; provided, (2) however, that if such Affiliate Transaction transaction involves an amount in excess of $15.0 10 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by Company shall also obtain from a nationally recognized independent investment banking or firm, accounting firm or other qualified independent appraiser to be fair, appraisal firm with experience in evaluating the terms and conditions of such type of business or transactions an opinion that such transaction is fair from a financial standpoint, point of view to the Company and or its Restricted SubsidiariesSubsidiary, as the case may be; provided, further, however, that the provisions of both clause (iii) above and the preceding proviso shall not apply with respect to any such business, transaction or series of related transactions between the Company and any Restricted Subsidiary, which business, transaction or series of transactions is entered into in the ordinary course of business.
(b) The provisions of Section 4.08(athe foregoing paragraph (a) shall not prohibit (i) any sale Restricted Payment permitted to be made pursuant to the covenant described under Section 4.10, or any payment or transaction specifically excepted from the definition of hydrocarbons Restricted Payment, (ii) any issuance of securities, or other mineral products to an Affiliate of the Company payments, awards or grants in cash, securities or otherwise pursuant to, or the entering funding of, employment arrangements, stock options and stock ownership plans entered into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are business and approved by a majority of the entire Board of Directors or by a majority of the disinterested members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate or a majority of the Company entire board of Capital Stock directors or a majority of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate disinterested members of the Company board of Indebtedness (including Disqualified Stock) directors of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionrelevant Restricted Subsidiary, (iii) transactions contemplated the grant of stock options or similar rights to employees and directors pursuant to plans approved by any employment agreement a majority of the entire Board of Directors or other compensation plan by a majority of the disinterested members of the Board of Directors or arrangement existing on a majority of the Issue Date entire board of directors or thereafter entered into by a majority of the Company disinterested members of the board of directors of the relevant Restricted Subsidiary, (iv) loans or any of its Restricted Subsidiaries advances to officers, directors or employees in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate transaction between the Company and a Subsidiary Guarantor, between Subsidiary Guarantors, or between Restricted Subsidiaries which are both not Subsidiary Guarantors, (vii) indemnification or insurance provided to officers or directors of the Company or any Subsidiary approved in good faith by the Board of Directors; (viii) payment of compensation and benefits to directors, officers and employees of the Company and its Subsidiaries approved in good faith by the Board of Directors; and (ix) the purchase of or the payment of Indebtedness of or monies owed by the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) for goods or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans materials purchased, or advances to employees services received, in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timebusiness.
Appears in 2 contracts
Samples: Indenture (Terex Corp), Indenture (Terex Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 2 million, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3) if such Affiliate Transaction involves an amount in excess of $25.0 10 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of hydrocarbons securities, EXHIBIT 4.1 or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of or its Restricted Subsidiaries, but in any event not to exceed $1 million in the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Wholly Owned Subsidiary or any of its Restricted Subsidiaries and Persons that are controlled between Wholly Owned Subsidiaries, (as defined in vii) the definition of “Affiliate”) payment by the Company (A) of customary annual management fees and related expenses to WEP and (B) of fees paid to WEP, J. H. Xxxxxxx & Xo., or an “Unrestricted Affiliate”); provided that no affiliate of J. H. Xxxxxxx & Xo. pursuant to any financing, underwriting or placement agreement, or in respect of other Person that controls (investment banking activities, in each case as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted determined by the provisions Board of Section 4.05; Directors in good faith and (viii) loans the issuance or advances to employees in the ordinary course sale of business and approved by any Capital Stock (other than Disqualified Stock) of the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.
Appears in 2 contracts
Samples: Indenture (Aqua Chem Inc), Indenture (Aqua Chem Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, enter into or permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction (or series of related Affiliate Transactions) involves aggregate payments in an amount in excess of $15.0 million1.0 million in any one year, (i) are set forth in writing writing, (ii) comply with clause (1) of this Section 4.7 and (iii) have been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors having no personal stake in such Affiliate TransactionDirectors, and (3) if such Affiliate Transaction (or series of related Affiliate Transactions) involves aggregate payments in an amount in excess of $25.0 million5.0 million in any one year, (i) comply with clause (2) and (ii) have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.7(a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.4, (ii) any issuance of hydrocarbons securities, or other mineral products to an Affiliate of the Company payments, awards or grants in cash, securities or otherwise, pursuant to, or the entering into or performance of Oil funding of, employment arrangements, stock options and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, stock ownership plans in the ordinary course of business, so long as the terms of any such transaction are business and approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionDirectors, (iii) transactions contemplated by any employment agreement the grant of stock options or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by similar rights to employees and directors of the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and pursuant to plans approved by the Board of Directors, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business of the Company or its Restricted Subsidiaries, (v) fees, compensation or employee benefit arrangements paid to and approved by indemnity provided for the Company’s Board benefit of Directors directors, officers or employees of the Company or any Subsidiary in the ordinary course of business, (vi) payments made to The Oxford Investment Group, Inc. for (x) management and consulting services in an aggregate principal amount not to exceed $2.5 million outstanding at 1,000,000 in any one timeyear and (y) investment banking services in connection with acquisition of assets or businesses, by the Company or any Subsidiary not to exceed the greater of (A) 1.25% of the purchase price paid by the Company or such Subsidiary for the assets or business acquired (including Indebtedness assumed by the Company or such Subsidiary as part of such acquisition) and (B) $200,000; or (vii) any Affiliate Transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries in the ordinary course of business (so long as the other stockholders of any participating Restricted Subsidiaries which are not Wholly Owned Restricted Subsidiaries are not themselves Affiliates of the Company).
Appears in 2 contracts
Samples: Indenture (BMG North America LTD), Indenture (Oxford Automotive Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 2.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and ; and
(3) if such Affiliate Transaction involves an amount in excess of $25.0 10.0 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction (i) is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or (ii) is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.08(a4.07(a) shall will not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the CompanyRestricted Payment, in each casecase permitted to be made pursuant to Section 4.04;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors;
(3) loans or advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries Subsidiaries, but in any event not to exceed $2.0 million in the ordinary course of business, aggregate outstanding at any one time;
(iv4) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries;
(5) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(v6) transactions between the issuance or among sale of any Capital Stock (other than Disqualified Stock) of the Company Company;
(7) professional services provided by Xxxxxx Xxxxxxxx LLP for which reasonable and its Restricted Subsidiariescustomary fees are paid;
(8) reasonable and customary indemnification of any officer, (vi) transactions between director or employee of the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees Subsidiary in the ordinary course of business and approved by business; and
(9) any payment to holders of all outstanding shares or principal of a series of the Company’s Board 's outstanding Capital Stock or Indebtedness in respect of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timewhich all holders of such Capital Stock or Indebtedness are treated equally.
Appears in 2 contracts
Samples: Indenture (Mothers Work Inc), Indenture (Especialty Brands LLC)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof thereof:
(1) are no not materially less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate 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 the relevant Restricted Subsidiary from a financial point of view; and
(2) if such Affiliate Transaction involves an amount in excess of $15.0 30.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser . The following items will not be deemed to be fairAffiliate Transactions under this Indenture and, from a financial standpointtherefore, will not be subject to the provisions of foregoing paragraph:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company and or any of its Restricted Subsidiaries.Subsidiaries in the ordinary course of business and payments pursuant thereto;
(b) The provisions of Section 4.08(a) shall not prohibit (i2) any sale of hydrocarbons Hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas contracts for exploring for, producing, gathering, transportation marketing, processing, storing or processing otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, entered into in the ordinary course of businessbusiness which are fair to the Company and its Restricted Subsidiaries taken as a whole, so long or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, as determined in good faith by the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, Company;
(ii3) the sale or issuance to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, ;
(iii4) transactions contemplated by any employment agreement 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 other compensation plan through a Restricted Subsidiary of the Company, Capital Stock in, or arrangement existing on the Issue Date or thereafter entered into by controls, such Person;
(5) transactions between the Company or any Restricted Subsidiary of its 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 Subsidiaries in Subsidiary; provided that such director shall abstain from voting as a director of the ordinary course of business, Company on any matter involving such other person;
(iv6) the payment of reasonable fees to and reimbursements of expenses (including travel and entertainment expenses and similar expenditures in the ordinary course of business) of employees, officers, directors of the Company and its Restricted Subsidiaries who are not employees or consultants of the Company or any Restricted Subsidiary, of its Subsidiaries;
(v7) transactions between or among the Company and its Restricted Subsidiaries, ;
(vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) 8) Restricted Payments that are permitted by the provisions of Section 4.05; 3.3 or Permitted Investments;
(9) sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with any Qualified Receivables Transaction;
(viii10) transactions effected in accordance with the terms of any agreement to which the Company or any Restricted Subsidiary of the Company is a party as of the Issue Date and scheduled in this Indenture, and any amendments, modifications, supplements, extensions, renewals or replacements thereof so long as such amendments, modifications, supplements, extensions, renewals or replacements do not materially and adversely affect the rights, taken as a whole, of the Holders of the Securities as compared to the terms of such agreement in effect on the Issue Date, as determined in good faith by the Company;
(11) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the preceding paragraph;
(12) loans or advances to employees employees, officers or directors in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 7.5 million outstanding at any one time;
(13) agreements and transactions entered into or effected in connection with a Qualified Spin Transaction; and
(14) (a) Guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for Guarantees of Indebtedness and (b) pledges by the Company or any Restricted Subsidiary of the Company of (or any Guarantee by the Company or any Restricted Subsidiary limited in recourse solely to) Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries.
Appears in 2 contracts
Samples: Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements Property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained by the Company or the relevant Restricted Subsidiary in a comparable transaction at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 5.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale event such Affiliate Transaction involves aggregate consideration in excess of $20.0 million, the Company has received a written opinion from an independent investment banking firm, appraiser or other expert of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's length basis from a Person that is not an Affiliate. The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to an Affiliate be made pursuant to Section 3.5;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans and other reasonable fees, compensation, benefits and indemnities paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of business to or with officers, directors or employees of the Company and its Restricted Subsidiaries;
(3) loans or advances to employees of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, business of the Company or any of its Restricted Subsidiaries;
(iv4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries;
(5) the payment of reasonable and customary fees to paid to, and indemnity provided on behalf of, officers, directors of the Company and its Restricted Subsidiaries who are not or employees of the Company or any Restricted Subsidiary, Subsidiary of the Company;
(v6) transactions any transaction between or among the Company and the Parent and its Subsidiaries or between a Restricted SubsidiariesSubsidiary and the Parent or its Subsidiaries pursuant to any of the Transition Agreements as in effect on the Issue Date, as these agreements may be amended, modified or supplemented from time to time; provided, however that any future amendment, modification or supplement entered into after the Issue Date will be permitted to the extent that its terms do not adversely affect the rights of any Holders of the Securities as compared to the terms of the agreements in effect on the Issue Date;
(vi7) transactions any transaction pursuant to the existing agreements between the Company and PAA as in effect on the date hereof, as these agreements may be amended, modified or supplemented from time to time; provided, however that any future amendment, modification or supplement entered into after the Issue Date will be permitted to the extent that its terms do not adversely affect the rights of any Holders of the Securities as compared to the terms of the agreements in effect on the Issue Date; and
(8) the performance of obligations of the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined under the terms of any agreement or arrangement in existence on the definition of “Affiliate”) by Issue Date to which the Company (an “Unrestricted Affiliate”)or any of its Restricted Subsidiaries is a party on the Issue Date and identified on Schedule 3.9 hereto on the Issue Date, as these agreements may be amended, modified or supplemented from time to time; provided provided, however, that no other Person any future amendment, modification or supplement entered into after the Issue Date will be permitted to the extent that controls (its terms do not adversely affect the rights of any Holders of the Securities as so defined) or is under common control with compared to the Company holds any Investments terms of the agreements in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by effect on the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeIssue Date.
Appears in 2 contracts
Samples: Indenture (Plains Resources Inc), Indenture (Plains Exploration & Production Co L P)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction or series of transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that which could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate. In addition, the Company shall not, and shall not permit any Restricted Subsidiary to, enter into any Affiliate Transaction unless:
(2i) if with respect to such Affiliate Transaction involves an amount in excess involving the aggregate value, remuneration or other consideration of less than or equal to $15.0 10.0 million, are set forth the management of the Company shall have approved the transaction in writing and have been approved by good faith;
(ii) with respect to such Affiliate Transaction involving the aggregate value, remuneration or other consideration of more than $10.0 million but less than or equal to $25.0 million, the Company has obtained approval of a majority of the Board of Directors, Directors of the Company (including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and disinterested directors); and
(3iii) if with respect to such Affiliate Transaction involves an amount in excess involving the aggregate value, remuneration or other consideration of more than $25.0 million, have been determined by the Company has delivered to the Trustee an opinion of a nationally recognized investment banking firm to the effect that such Affiliate Transaction is fair to the Company or accounting firm or other qualified independent appraiser to be fairsuch Restricted Subsidiary, as the case may be, from a financial standpoint, to the Company and its Restricted Subsidiariespoint of view.
(b) The provisions of the foregoing Section 4.08(a4.14(a) shall not prohibit prohibit:
(i) any sale of hydrocarbons or other mineral products Restricted Payment permitted to an Affiliate be paid pursuant to Section 4.11;
(ii) employment, consulting, loan, and compensation arrangements and agreements of the Company or the entering into any Restricted Subsidiary with any officer or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees employee of the Company or any Restricted Subsidiary, consistent with past practice or approved by the Board of Directors;
(viii) transactions between or among the Company indemnification arrangements with officers and its Restricted Subsidiaries, (vi) transactions between directors of the Company or any of its Restricted Subsidiaries Subsidiaries;
(iv) the grant of stock options or similar rights to employees and Persons that are controlled (as defined in the definition directors of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances Subsidiary pursuant to employees in the ordinary course of business and plans approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at Directors; and
(v) any one timeAffiliate Transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries.
Appears in 2 contracts
Samples: Indenture (Trinity Marine Products, Inc.), Indenture (Trinity Industries Inc)
Limitation on Affiliate Transactions. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company or a Permitted Affiliate Parent (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of $50.0 million unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable favorable, taken as a whole, to the Company Company, such Permitted Affiliate Parent or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate (or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company, such Permitted Affiliate Parent or such Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company, such Permitted Affiliate Parent or such Restricted Subsidiary has conclusively determined in good faith to be fair to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary); and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 100.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including either (i) a majority of the members of the Board of Directors having no personal stake in or (ii) senior management of the Company, such Permitted Affiliate TransactionParent, and (3) if or such Affiliate Transaction involves an amount in excess of $25.0 millionRestricted Subsidiary, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesas applicable.
(b) The provisions of Section 4.08(a4.11(a) shall will not prohibit apply to:
(i1) any Restricted Payment permitted to be made pursuant to Section 4.07 or any Permitted Investment;
(2) any issuance or sale of hydrocarbons Capital Stock, options, other equity-related interests or other mineral products to an Affiliate of the Company securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into into, or performance of Oil maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and Gas Hedging Contractsother compensation arrangements, gas gatheringoptions, transportation warrants or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate other rights to purchase Capital Stock of the Company, a Permitted Affiliate Parent, any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultant plans (including, without limitation, valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) and/or indemnities provided on behalf of officers, employees or directors or consultants, in each case, case in the ordinary course of business;
(3) loans or advances to employees, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement officers or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, (iv) the payment of reasonable fees to directors business of the Company and its Restricted Subsidiaries who are not employees of the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary, but in any event not to exceed $2.0 million in the aggregate amount outstanding at any one time with respect to all loans or advances made since the Effective Date;
(v4) transactions (A) any transaction between or among the Company Company, a Permitted Affiliate Parent and its a Restricted Subsidiaries, Subsidiary (vior an entity that becomes a Permitted Affiliate Parent or a Restricted Subsidiary in connection with such transaction) transactions or between the Company or any of its among Restricted Subsidiaries and Persons (or an entity that are controlled (as defined becomes a Restricted Subsidiary in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”connection with such transaction); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiB) loans any guarantees issued by the Company, a Permitted Affiliate Parent or advances to employees a Restricted Subsidiary for the benefit of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary (or an entity that becomes a Permitted Affiliate Parent or a Restricted Subsidiary in connection with such transaction), as the case may be, in accordance with Section 4.09;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and approved otherwise in compliance with the terms of this Agreement, which, taken as a whole, are fair to the Company, the relevant Permitted Affiliate Parent or Restricted Subsidiary, as applicable, or are on terms not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(6) loans or advances to any Affiliate of the Company or a Permitted Affiliate Parent by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary; provided that the terms of such loan or advance are fair to the Company or the relevant Permitted Affiliate Parent or Restricted Subsidiary, as the case may be, or are on terms not materially less favorable than those that could reasonably have been obtained from an unaffiliated party;
(7) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors, executives or officers of any Parent, the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(8) the performance of obligations of the Company, any Permitted Affiliate Parent, or any of the Restricted Subsidiaries under (A) the terms of any agreement to which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries is a party as of or on the Effective Date or (B) any agreement entered into after the Effective Date on substantially similar terms to an agreement under Section 4.11(b)(8)(A), in each case, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided that any such agreement or amendment, modification, supplement, extension or renewal to such agreement, in each case, entered into after the Effective Date will be permitted to the extent that its terms are not materially more disadvantageous to the Finance Parties than the terms of the agreements in effect on the Effective Date;
(9) any transaction with (i) a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations or (ii) with an Affiliate in respect of Non-Recourse Indebtedness;
(10) the issuance of Capital Stock or any options, warrants or other rights to acquire Capital Stock (other than Disqualified Stock) of the Company, a Permitted Affiliate Parent or an Affiliate Subsidiary to any Affiliate of the Company, such Permitted Affiliate Parent or such Affiliate Subsidiary;
(11) the payment to any Permitted Holder of all reasonable expenses Incurred by any Permitted Holder in connection with its direct or indirect investment in the Company, a Permitted Affiliate Parent, an Affiliate Subsidiary and their Subsidiaries and unpaid amounts accrued for prior periods;
(12) the payment to any Parent or Permitted Holder (1) of Management Fees (A) on a bona fide arm’s-length basis in the ordinary course of business or (B) of up to the greater of $15.0 million and 1.0% of Total Assets in any calendar year, (2) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including without limitation in connection with loans, capital market transactions, hedging and other derivative transactions, acquisitions or divestitures or (3) of Parent Expenses;
(13) guarantees of indebtedness, hedging and other derivative transactions, and other obligations not otherwise prohibited under this Agreement;
(14) if not otherwise prohibited under this Agreement, the issuance of Capital Stock (other than Disqualified Stock) or Subordinated Shareholder Loans (including the payment of cash interest thereon; provided that, after giving pro forma effect to any such cash interest payment, the Consolidated Senior Secured Net Leverage Ratio would not exceed 4.50 to 1.00) of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary to any Parent of the Company, a Permitted Affiliate Parent or an Affiliate Subsidiary or any Permitted Holder;
(15) arrangements with customers, clients, suppliers, contractors, lessors or sellers of goods or services that are negotiated with an Affiliate, in each case, which are otherwise in compliance with the terms of this Agreement; provided that the terms and conditions of any such transaction or agreement as applicable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries, taken as a whole, are fair to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries and are on terms not materially less favorable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries than those that could have reasonably been obtained in respect of an analogous transaction or agreement that would not constitute an Affiliate Transaction;
(16) (A) transactions with Affiliates in their capacity as holders of indebtedness or Capital Stock of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness or Capital Stock generally, and (B) transactions with Affiliates in their capacity as borrowers of Indebtedness from the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness generally;
(17) any tax sharing agreement or arrangement and payments pursuant thereto between or among the Ultimate Parent, the Company, a Permitted Affiliate Parent or any other Person or a Restricted Subsidiary not otherwise prohibited by this Agreement and any payments or other transactions pursuant to a tax sharing agreement or arrangement between the Company, a Permitted Affiliate Parent and any other Person or a Restricted Subsidiary and any other Person with which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries files a consolidated tax return or with which the Company, a Permitted Affiliate Parent or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation;
(18) transactions relating to the provision of Intra-Group Services in the ordinary course of business;
(19) the Transactions;
(20) any transaction reasonably necessary to effect the Spin-Off;
(21) any transaction in the ordinary course of business between or among the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and any Affiliate of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary that is an Unrestricted Subsidiary or a joint venture or similar entity (including a Permitted Joint Venture) that would constitute an Affiliate Transaction solely because the Company, a Permitted Affiliate Parent or a Restricted Subsidiary owns an equity interest in or otherwise controls such Unrestricted Subsidiary, joint venture or similar entity;
(22) commercial contracts entered into in the ordinary course of business between an Affiliate of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and the Company, a Permitted Affiliate Parent or any Restricted Subsidiary that are on arm’s Board length terms or on a basis that senior management of Directors the Company, a Permitted Affiliate Parent or a Restricted Subsidiary reasonably believes allocates costs fairly;
(23) transactions between the Company, a Permitted Affiliate Parent and any Restricted Subsidiary and a Parent and/or an Affiliate, in an aggregate principal amount not each case, to exceed $2.5 million outstanding at effect or facilitate the transfer of any one timeproperty or asset from the Company, any Permitted Affiliate Parent and/or any Restricted Subsidiary to another Restricted Subsidiary, any Permitted Affiliate Parent and/or the Company, as applicable;
(24) any Permitted Financing Action; and
(25) transactions relating to Excess Capacity Network Services; provided that the price payable by any member of the Wider Group in relation to such Excess Capacity Network Services is no less than the cost incurred by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in providing such Excess Capacity Network Services.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company in an amount greater than $1.0 million in any transaction or series of related transactions (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary than those that could reasonably be expected to be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 5.0 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including a majority of the members directors of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if Company disinterested with respect to such Affiliate Transaction involves an amount have determined in excess of $25.0 million, good faith that the criteria set forth in clause (1) are satisfied and have been determined approved the relevant Affiliate Transaction as evidenced by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.Board Resolution; and
(b) The provisions of Section 4.08(a4.05(a) shall not prohibit prohibit:
(i1) any sale of hydrocarbons employment agreement or other mineral products to an Affiliate of employee compensation plan or arrangement in existence on the Company Issue Date or the entering entered into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, thereafter in the ordinary course of businessbusiness including any issuance of securities, so long as or other payments, awards or grants in cash, securities or otherwise pursuant to, or the terms of any such transaction are funding of, employment arrangements, stock options and stock ownership plans approved by a majority of the members of the Board of Directors who are disinterested Directors;
(2) loans or advances to employees (or cancellations thereof) in the ordinary course of business in accordance with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company or its Subsidiaries, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time;
(3) advances to or reimbursements of Capital Stock employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case in the ordinary course of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate business of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, Subsidiaries;
(iv4) the payment of reasonable compensation and fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Subsidiaries;
(5) any Restricted Subsidiarytransaction between the REIT, the Company, the Operating Partnership and/or their respective Subsidiaries;
(v6) transactions between or among indemnities of officers, directors and employees of the Company or any Subsidiary consistent with applicable charter, by-law or statutory provisions;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company or the receipt by the Company of a cash capital contribution from its stockholders;
(8) transactions with Joint Ventures, customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and its Restricted Subsidiariesotherwise in compliance with the terms of this Indenture, provided that in the reasonable determination of the Board of Directors or the senior management of the Company, such transactions are on terms not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(vi9) transactions between the Company or any Subsidiary and any Person, a director of its Restricted Subsidiaries which is also a director of the Company or any director or indirect parent company of the Company, and Persons such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Subsidiary; provided, however, that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any matter involving such other Person;
(10) any transaction with Affiliates pursuant to arrangements in existence on the Issue Date pursuant to which those Affiliates own, or are controlled (as defined entitled to acquire, working, overriding royalty or other similar interests in the definition of “Affiliate”) particular properties operated by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with any Subsidiary or in which any of the Company holds any Investments in such Unrestricted Affiliate; or one or more Subsidiaries also own an interest;
(vii11) Restricted Payments that are mergers, consolidations or sales of all or substantially all assets permitted by by, and complying with, the provisions of Section 4.05; 5.01, 5.02 and 5.03;
(viii12) loans the execution of the restructuring transactions pursuant to the Plan of Reorganization and the payment of all fees and expenses related thereto or advances to employees in the ordinary course of business and approved required by the Company’s Board Plan of Directors Reorganization; and
(13) transactions undertaken in an aggregate principal amount good faith by the Company for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not to exceed $2.5 million outstanding at for the purpose, or with the effect, of circumventing any one timeprovision set forth in this Indenture.
Appears in 2 contracts
Samples: Indenture (CBL & Associates Limited Partnership), Indenture (CBL & Associates Limited Partnership)
Limitation on Affiliate Transactions. (a) The Neither the Company nor the Issuer shall, nor shall not, and shall not the Company permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company Company, (an “Affiliate Transaction”"AFFILIATE TRANSACTION") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 US$1.0 million, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority Directors of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Company and (3) in addition, if such Affiliate Transaction involves an as amount in excess of $25.0 US$5.0 million, have been determined by a nationally an internationally recognized investment banking firm or, if pertaining to a matter for which such investment banking firms do not customarily render such opinions, an appraisal or accounting valuation firm or other qualified independent appraiser of international reputation, to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(athe foregoing paragraph (a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.05, (ii) any issuance of hydrocarbons securities, or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of or its Restricted Subsidiaries, but in any event not to exceed US$l.0 million in the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Wholly Owned Subsidiary or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; between Wholly Owned Subsidiaries, (vii) the payment of fees for management services provided in the ordinary course of business in accordance with the past practices of the Company or its Restricted Payments Subsidiaries, but in any event not to exceed US$1.0 million in the aggregate in any calendar year, (viii) the Company from performing its obligations under the Propylene Supply Agreement; PROVIDED that are permitted by any amendment to the Propylene Supply Contract complies with the provisions of Section 4.05; 4.09(a) (1) and (viiia) loans or advances (2) (i) and (ii) above, and (ix) the Company from entering into agreements to employees sell polypropylene in the ordinary course of business and approved by consistent with past practices; PROVIDED that any such agreement complies with the Company’s Board provisions of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at clause (a) (1) above; PROVIDED FURTHER that if a Change of Control has occurred, any one timesuch agreement complies also with the provisions of Section 4.09(a) (2) (ii) above.
Appears in 2 contracts
Samples: Indenture (Pt Polytama Propindo), Indenture (Pt Polytama Propindo)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary Group Member to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Group Member than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $15.0 12.5 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including either (A) a majority of the members committee of the Board of Directors having no personal stake in a majority of whose members are disinterested with respect to such transaction or (B) a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction, Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and that the relevant Affiliate Transaction is in the best interest of the Company or such Restricted Group Member and have approved the relevant Affiliate Transaction as evidenced by a Board Resolution; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $25.0 million, the Board of Directors shall also have been determined by received a nationally recognized written opinion from an investment banking or firm, accounting firm or other qualified independent appraiser appraisal firm of national prominence that is not an Affiliate of the Company to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesGroup Members.
(b) The provisions of Section 4.08(a4.07(a) shall will not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate of the Company or be made pursuant to Section 4.04;
(2) the entering into into, maintaining or performance of Oil and Gas Hedging Contractsany employment contract, gas gatheringcollective bargaining agreement, transportation benefit plan, program or processing contracts arrangement, related trust agreement or oil any other similar arrangement for or natural gas marketing with any employee, officer or exchange contracts with an Affiliate of the Company, in each case, director heretofore or hereafter entered into in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transactionincluding vacation, health, insurance, deferred compensation, retirement, savings or other similar plans;
(ii3) the sale to payment of compensation, performance of indemnification or contribution obligations, or an Affiliate issuance, grant or award of the Company of Capital Stock of the Company that does not constitute Disqualified Stockstock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionoptions, (iii) transactions contemplated by any employment agreement or other compensation plan equity-related interests or arrangement existing on the Issue Date other securities, to employees, officers or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, ;
(iv4) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries Group Members who are not employees of the Company or its Restricted Group Members;
(5) any transaction with a Restricted SubsidiaryGroup Member or joint venture or similar entity that would consti- tute an Affiliate Transaction solely because the Company or a Restricted Group Member owns an equity interest in or otherwise controls such Restricted Group Member, joint venture or similar entity;
(v6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company; and
(7) transactions between with respect to the provision of Telecommunications Business services, including wireline or among wireless transmission capacity, the Company and its Restricted Subsidiarieslease or sharing or other use of cable or fiber optic lines, (vi) transactions equipment, rights-of-way or other access rights between the Company or any of its Restricted Subsidiaries Group Member and Persons that are controlled (as defined any other Person; provided, however, that, in the definition case of “Affiliate”this clause (7), such transaction complies with Section 4.07(a)(1) by and is in the best interest of the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeGroup Member.
Appears in 2 contracts
Samples: Indenture (Winstar Communications Inc), Indenture (Winstar Communications Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company 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 permit to exist make or amend any transaction (including transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company Company, in each case, in excess of $25.0 million (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no not less favorable in any material respect to the Company or such Restricted Subsidiary than those that could reasonably be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who that is not such an Affiliate, ; and
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $15.0 100.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal financial stake in such transaction, if any (ii) the sale to an Affiliate and such majority or majorities of the Company Board of Capital Stock Directors, as the case may be, determines that such Affiliate Transaction satisfies the criteria in Section 4.13(a)(1) above), as evidenced by a resolution of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate Board of Directors of the Company.
(b) The foregoing restrictions shall not apply to:
(1) any Restricted Payment made pursuant to Section 4.09 and any Permitted Investment;
(2) any transaction among only the Company of Indebtedness (including Disqualified Stock) and/or any Restricted Subsidiary or Restricted Subsidiaries of the Company in connection with an offering Company;
(3) any issuance of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement securities or other compensation plan payments, awards or arrangement existing on grants in cash, securities or otherwise pursuant to, or the Issue Date funding of, employment arrangements, stock options and stock ownership plans and other fair and reasonable compensation, benefits and indemnities paid or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness by the Company or its Restricted Subsidiaries to or with officers, (iv) the payment of reasonable fees to directors or employees of the Company and its Restricted Subsidiaries, in their capacity as such, approved by the Board of Directors of the Company;
(4) loans or advances to officers, directors, consultants or employees of the Company, any of its Restricted Subsidiaries who or any direct or indirect parent entity of the Company, or guarantees in respect thereof, made on its behalf or their behalf (or the cancellation of such loans, advances or guarantees) in the ordinary course of business and employment agreements, stock option plans and other similar arrangements with such officers, directors, consultants or employees which, in each case, are approved by the Company in good faith; provided that such loans or advances do not exceed $25.0 million outstanding at any one time;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and on market terms;
(6) the issuance or sale of any Capital Stock (other than Disqualified Capital Stock) of, and any contribution of capital to, the Company;
(7) any transaction with a Person that is an Affiliate solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(8) any transaction on arm’s-length terms with any Person that is not an Affiliate prior to such transaction but becomes an Affiliate as a result of such transaction;
(9) any agreement as in effect on the Issue Date and described in the Offering Circular, and any renewals, amendments or extensions of any such agreement (so long as such renewals, amendments or extensions are not employees materially less favorable, taken as a whole, to the Company and its Restricted Subsidiaries) and the transactions evidenced thereby;
(10) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(11) any transaction entered into by the Company with JBS S.A. or any of its Affiliates in the ordinary course of business or permitted pursuant to clause (20) of the definition of “Permitted Debt”;
(12) any Affiliate Transaction with a Person in its capacity as a holder of Debt or Capital Stock of the Company or any Restricted Subsidiary where such Person is treated no more favorably than the other holders of Debt or Capital Stock of the Company or any Restricted Subsidiary;
(13) any agreement that provides customary registration rights to the equity holders of the Company and the performance of such agreements;
(14) any purchase, sale or resale of common Equity Interests of or contributions to the common equity capital of the Company, in each case, by, for or on behalf of the Company or a stockholder thereof (vincluding any customary agreement in connection therewith); provided that any such purchase or sale of common Equity Interests by the Company shall be at prices and on terms and conditions not less favorable to the Company than could be obtained on an arm’s-length basis from unrelated third parties; and
(15) any transaction entered into by the Company to provide loans and advances to contract growers.
(c) The Company shall conduct all transactions with its Affiliates in accordance with principles of good faith and fair dealing. For the avoidance of doubt, the Company shall not be prohibited by this Section 4.13 from maintaining arrangements with or among its Affiliates to share the benefits of economies of scale or other similar benefits in an equitable manner between or among the Company and and/or its Restricted SubsidiariesAffiliates, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) reasonably determined by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in and such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeAffiliates.
Appears in 2 contracts
Samples: Indenture (Pilgrims Pride Corp), Indenture (Pilgrims Pride Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate value in excess of $20.0 million, unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 40.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.
(b) The provisions of Section 3.8(a) shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment;
(2) any issuance or sale of Capital Stock, options, other equity‑related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidiary or any Parent Entity, restricted stock plans, long‑term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors who are disinterested of the Company, in each case in the ordinary course of business or consistent with past practice;
(3) any Management Advances and any waiver or transaction with respect to thereto;
(4) (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (iib) any merger or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stockor another Parent Entity with no material liabilities and no material assets other than cash, Cash Equivalents and the sale to an Affiliate Capital Stock of the Company or another Parent Entity and such merger or consolidation is otherwise consummated in compliance with this Indenture;
(5) the payment of Indebtedness compensation, fees and reimbursement of expenses to, and customary indemnities (including Disqualified Stockunder customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees of the Company in connection with an offering Company, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through any Controlled Investment Affiliate of such Indebtedness in a market transaction directors, officers or employees);
(6) the entry into and on terms substantially identical to those performance of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by obligations of the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date (or, if entered into in connection with the Spin-Off and not in effect on the Issue Date, as in effect on the Spin-Off Effective Date), as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or to the extent not more disadvantageous to the Holders in any material respect;
(7) any customary transaction with a Receivables Subsidiary including a Securitization Repurchase Obligation and sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(8) transactions with customers, clients, joint venture partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practice, (iv) which are fair to the payment Company or the relevant Restricted Subsidiary in the reasonable determination of reasonable fees to directors the Board of Directors or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(9) transactions with any other Person 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;
(10) issuances or sales of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and its Restricted Subsidiaries who are not employees the granting of registration and other customary rights in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(11) any transactions (a) pursuant to the Transactions, the Transaction Agreements and any actions pursuant thereto or contemplated thereby, including the payment of all costs and expenses (including all legal, accounting and other professional fees and expenses) related to the Transactions, (vb) transactions between with Grace or among any of its Affiliates pursuant to the contracts or agreements described in the Offering Circular under the caption “Our Relationship with Grace Following the Spin-Off”, or (c) in the case of each of clauses (a) and (b), any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Company and its Restricted SubsidiariesSubsidiaries than the original agreement or arrangement in existence on the Issue Date (or if such agreement or contract is not in effect on the Issue Date or in the case of the Transaction Agreements, their respective dates);
(vi12) transactions between 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 Section 3.8(a)(1);
(13) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause (13) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect;
(14) any purchase by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of their Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(15) (i) investments by Affiliates in securities of the Company or any of its Restricted Subsidiaries (and Persons that are controlled (payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as defined in the definition of “Affiliate”) investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (an “Unrestricted Affiliate”); provided that no other Person that controls ii) payments to Affiliates in respect of securities of the Company or any of its Restricted Subsidiaries contemplated in the foregoing subclause (as so definedi) or is under common control that were acquired from Persons other than the Company and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities;
(16) payments by any Parent Entity, the Company holds and the Restricted Subsidiaries pursuant to any Investments tax sharing agreements or other equity agreements in respect of Related Taxes among any such Unrestricted AffiliateParent Entity, the Company and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries;
(17) 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 or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment agreements, stock option plans and other compensatory arrangements (viiand any successor plans thereto) Restricted Payments and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) that are permitted are, in each case, approved by the provisions Board of Section 4.05; Directors of the Company in good faith;
(18) employment and (viii) loans severance arrangements between the Company or advances to its Restricted Subsidiaries and their respective offers and employees in the ordinary course of business or entered into in connection with the Transactions;
(19) any transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of the disposition of assets or equity interests in any Restricted Subsidiary permitted under Section 3.5 or entered into with any Business Successor, in each case, that the Company determines in good faith is either fair to the Company or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(20) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described under the caption “—Designation of Restricted and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at Unrestricted Subsidiaries;” and
(21) any one timePermitted Tax Restructuring.
Appears in 2 contracts
Samples: Indenture (GCP Applied Technologies Inc.), Indenture (W R Grace & Co)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company in an amount greater than $1.0 million in any transaction or series of related transactions (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary than those that could reasonably be expected to be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 5.0 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including a majority of the members directors of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if Company disinterested with respect to such Affiliate Transaction involves an amount have determined in excess of $25.0 million, good faith that the criteria set forth in clause (1) are satisfied and have been determined approved the relevant Affiliate Transaction as evidenced by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.Board Resolution; and
(b) The provisions of Section 4.08(a4.05(a) shall not prohibit prohibit:
(i1) any sale of hydrocarbons employment agreement or other mineral products to an Affiliate of employee compensation plan or arrangement in existence on the Company Issue Date or the entering entered into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, thereafter in the ordinary course of businessbusiness including any issuance of securities, so long as or other payments, awards or grants in cash, securities or otherwise pursuant to, or the terms of any such transaction are funding of, employment arrangements, stock options and stock ownership plans approved by a majority of the members of the Board of Directors who are disinterested Directors;
(2) loans or advances to employees (or cancellations thereof) in the ordinary course of business in accordance with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company or its Subsidiaries, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time;
(3) advances to or reimbursements of Capital Stock employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case in the ordinary course of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate business of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, Subsidiaries;
(iv4) the payment of reasonable compensation and fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Subsidiaries;
(5) any Restricted Subsidiarytransaction between the REIT, the Company, the Operating Partnership and/or their respective Subsidiaries;
(v6) transactions between or among indemnities of officers, directors and employees of the Company or any Subsidiary consistent with applicable charter, by-law or statutory provisions;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company or the receipt by the Company of a cash capital contribution from its stockholders;
(8) transactions with Joint Ventures, customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and its Restricted Subsidiariesotherwise in compliance with the terms of this Indenture, provided that in the reasonable determination of the Board of Directors or the senior management of the Company, such transactions are on terms not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(vi9) transactions between the Company or any Subsidiary and any Person, a director of its Restricted Subsidiaries which is also a director of the Company or any director or indirect parent company of the Company, and Persons such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Subsidiary; provided, however, that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any matter involving such other Person;
(10) any transaction with Affiliates pursuant to arrangements in existence on the Issue Date pursuant to which those Affiliates own, or are controlled (as defined entitled to acquire, working, overriding royalty or other similar interests in the definition of “Affiliate”) particular properties operated by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with any Subsidiary or in which any of the Company holds any Investments in such Unrestricted Affiliate; or one or more Subsidiaries also own an interest;
(vii11) Restricted Payments that are mergers, consolidations or sales of all or substantially all assets permitted by by, and complying with, the provisions of Section 4.05; 5.01, 5.02 and 5.03;
(viii12) loans the execution of the restructuring transactions pursuant to the Plan of Reorganization and the payment of all fees and expenses related thereto or advances to employees in the ordinary course of business and approved required by the Company’s Board Plan of Directors Reorganization; and
(13) transactions undertaken in an aggregate principal amount good faith by the Company for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not to exceed $2.5 million outstanding at for the purpose, or with the effect, of circumventing any one timeprovision set forth in this Indenture.
Appears in 2 contracts
Samples: Indenture (CBL & Associates Limited Partnership), Indenture (CBL & Associates Limited Partnership)
Limitation on Affiliate Transactions. (a) The Neither the Company nor the Issuer shall, nor shall not, and shall not they permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, salesell, lease or exchange otherwise transfer any assets to, or purchase, lease or otherwise acquire any assets from, or otherwise engage in any other transactions with, any of any property, employee compensation arrangements or the rendering its Affiliates involving aggregate consideration in excess of any service) with any Affiliate of the Company $25 million (an “Affiliate Transaction”) unless the terms thereof unless:
(1) such Affiliate Transaction is on terms that, taken as a whole, are no not materially less favorable to the Company Company, the Issuer or such Restricted Subsidiary than those that could be obtained at the time of such transaction in on an arm’s-length dealings with a Person who is not such an Affiliate, basis from unrelated third parties; and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 50 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in Section 4.8(a)(1)).
(b) The provisions of Section 4.8(a) will not prohibit:
(1) any transaction between the Company and the Issuer, the Company and/or the Issuer and any Restricted Subsidiary or between any Restricted Subsidiaries and any Guarantees issued by the Company, the Issuer or a Restricted Subsidiary for the benefit of the Company, the Issuer or any Restricted Subsidiary, as the case may be, in accordance with Section 4.4;
(2) any Restricted Payment permitted to be made pursuant to Section 4.5 and any Permitted Investments;
(3) the sale to an Affiliate payment of reasonable fees to, and expenses of, directors of the Company Company, the Issuer or any Restricted Subsidiary who are not employees of Capital Stock of Company, the Company that does not constitute Disqualified StockIssuer or any Restricted Subsidiary, and compensation and employee benefit arrangements paid to, and indemnities provided for the sale to an Affiliate benefit of, directors, officers or employees of Company, the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company Issuer or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business;
(4) any issuances of securities or other payments, (iv) awards or grants in cash, securities or otherwise pursuant to, or the payment of reasonable fees to directors of the Company funding of, employment agreements, stock options and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) stock ownership plans approved by the Company Company’s Board of Directors;
(an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined5) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; employment and (viii) loans or advances to employees severance arrangements entered into in the ordinary course of business between the Company, the Issuer or any Restricted Subsidiary and any employee thereof and approved by the Company’s Board of Directors;
(6) transactions occurring in connection with the separation and distribution pursuant to the Separation Documents (as described in the Form 10 and the Offering Memorandum);
(7) any agreement as in effect as of the Issue Date, as such 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 materially less favorable to the Company, the Issuer or such Restricted Subsidiary in any material respect in the good faith judgment of by an executive officer of the Company or the Board of Directors of the Company, when taken as a whole, than the terms of the agreements in effect on the Issue Date;
(8) any agreement between any Person and an aggregate principal amount Affiliate of such Person existing at the time such Person is acquired by, merged into or amalgamated, arranged or consolidated with the Company, the Issuer or any Restricted Subsidiary; 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 more materially less favorable to exceed $2.5 million outstanding the Company, the Issuer or such Restricted Subsidiary in the good faith judgment of an executive officer or the Board of Directors of the Company, 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);
(9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services or any management services or support agreements, in each case in the ordinary course of the business of the Company, the Issuer and the Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Board of Directors of the Company or an executive officer of the Company, such transactions or agreements are on terms that are not materially less favorable, when taken as a whole, to the Company, the Issuer or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions or agreements in a comparable transaction or agreement by the Company, the Issuer or such Restricted Subsidiary with an unrelated Person;
(10) any issuance or sale of Equity Interests (other than Disqualified Equity Interests) of the Company to Affiliates of the Company and any agreement that grants registration and other customary rights in connection therewith or otherwise to the direct or indirect securityholders of the Company (and the performance of such agreements);
(11) any transaction with a Person that is an Affiliate of the Company solely because the Company, the Issuer or any Restricted Subsidiary owns, directly or indirectly, any equity interest in or otherwise controls such Person; provided that no Affiliate of the Company, other than the Company, the Issuer or any Restricted Subsidiary, shall have a beneficial interest or otherwise participate in such Person other than through such ownership of such Person;
(12) transactions between the Company, the Issuer or any Restricted Subsidiary and any Person that is an Affiliate solely because one timeor more of its directors is also a director of the Company, the Issuer or any Restricted Subsidiary; provided that such director abstains from voting as a director of the Company, the Issuer or such Restricted Subsidiary, as the case may be, on any matter involving such other Person;
(13) 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;
(14) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Company and one or more subsidiaries, on the one hand, and any other Person with which the Company and such subsidiaries are required or permitted to file a consolidated tax return or with which the Company and such subsidiaries are part of a consolidated group for tax purposes, on the other hand;
(15) pledges of Equity Interests or Indebtedness of Unrestricted Subsidiaries;
(16) any transaction effected as part of a Qualified Receivables Financing; provided, that such transactions are not otherwise prohibited by terms of this Indenture;
(17) transactions in connection with the Ma’aden Guarantees and any Refinancing Ma’aden Guarantees;
(a) investments by Affiliates in securities of the Company, the Issuer or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company, the Issuer or such Restricted Subsidiary generally to other investors capable of making such investments pursuant to a bona fide offer on the same or more favorable terms to the Company, the Issuer or such Restricted Subsidiary and (b) payments to Affiliates in respect of securities of the Company, the Issuer or any Restricted Subsidiary contemplated in the foregoing clause (a) or that were acquired from Persons other than the Company, the Issuer and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities;
(19) intellectual property licenses in the ordinary course of business or consistent with industry practice; and
(20) transactions in which the Company, the Issuer or any of its Restricted Subsidiaries delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company, the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, than those that might reasonably have been obtained by the Company, the Issuer or such Restricted Subsidiary in a comparable transaction at such time on an arms’ length basis from a Person that is not an Affiliate.
Appears in 2 contracts
Samples: Indenture (Alcoa Upstream Corp), Indenture (Alcoa Inc.)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof thereof:
(1i) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2ii) if such Affiliate Transaction involves an amount in excess of $15.0 million1,000,000, (A) are set forth in writing and (B) have been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors having no personal stake in such Affiliate Transaction, and Directors; and.
(3iii) if such Affiliate Transaction involves an amount in excess of $25.0 million5,000,000 (other than such an Affiliate Transaction involving a Foreign Joint Venture or a New Joint Venture), have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser having experience in such matters to be fair, from a financial standpointpoint of view, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(athe foregoing paragraph (a) shall not prohibit prohibit:
(i) any sale Restricted Payment permitted to be paid pursuant to Section 4.09;
(ii) any issuance of hydrocarbons securities, or other mineral products to an Affiliate of the Company payments, awards or grants in cash, securities or otherwise pursuant to, or the entering into funding of, employment arrangements, stock options and stock ownership plans or performance of Oil and Gas Hedging Contracts, gas gathering, transportation similar employee benefit plans or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are arrangements approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, Directors;
(iii) transactions contemplated by any employment agreement the grant of stock options or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees similar rights to employees and directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) pursuant to plans approved by the Company Board of Directors;
(an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiiv) loans or advances to employees in the ordinary course of business and approved by in accordance with the Company’s Board past practices of Directors the Company or its Restricted Subsidiaries, but in an aggregate principal amount any event not to exceed $2.5 million 2,000,000 in the aggregate outstanding at any one time;
(v) Stock Purchase Loans or loans made by the Company to certain employees to pay taxes arising from the granting of stock to such employees in connection with confirmation of the Plan;
(vi) reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Company or any Restricted Subsidiary as determined in good faith by the Company's Board of Directors;
(vii) any Affiliate Transaction (v) between the Company and a Restricted Subsidiary; (w) between Restricted Subsidiaries; (x) between the Company or a Restricted Subsidiary and a Foreign Joint Venture; (y) involving payments made pursuant to or contemplated by a Foreign Investment Agreement (as in effect on the Issue Date); or (z) between the Company or a Restricted Subsidiary, on the one hand, and P&G or KC, on the other, relating to technology licenses; PROVIDED that, no Affiliate of the Company other than a Restricted Subsidiary owns any Capital Stock in or otherwise has a material financial interest in any such Restricted Subsidiary or Joint Venture, as the case may be;
(viii) any transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date); and
(ix) the entering into by the Company and any of its consolidated Restricted Subsidiaries of a tax sharing or similar arrangement.
Appears in 2 contracts
Samples: Indenture (Paragon Trade Brands Inc), Indenture (Paragon Trade Brands Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make any transaction (including contract, agreement, understanding, loan, advance or Guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”), unless:
(i) unless the terms thereof (1) are such Affiliate Transaction is on a basis no less favorable to the Company or such and its Restricted Subsidiary Subsidiaries than those that could be obtained at the time of such in a comparable transaction in on an arm’s-length dealings basis with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, or, if no such comparable transaction with a Person who is not an Affiliate of the Company is available, on terms that are fair from a financial point of view to the Company or such Restricted Subsidiary; and
(ii) the Company delivers to the Trustee (A) with respect to any Affiliate Transaction involving aggregate net consideration in each caseexcess of $25 million, a Board Resolution set forth in the ordinary course of business, so long as the terms of any an Officer’s Certificate certifying that such transaction are 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 who are disinterested and (B) with respect to any Affiliate Transaction involving aggregate net consideration in excess of $50 million, a Board Resolution set forth in an Officer’s Certificate certifying that such transactionAffiliate 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, (ii) if any, or if there are no such disinterested members, then the sale Company shall have received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that the terms of such Affiliate Transaction are not materially less favorable to the Company or the applicable Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm’s length basis with a Person who is not an Affiliate of the Company of Capital Stock of or that such terms are fair to the Company that does or the applicable Restricted Subsidiary from a financial point of view.
(b) Notwithstanding the foregoing, the following shall not constitute Disqualified Stock, be deemed to be Affiliate Transactions and therefore not subject to the sale to an Affiliate requirements of the Company of Indebtedness Section 4.10(a):
(including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iiii) transactions contemplated by or payments pursuant to any employment agreement arrangements or other compensation plan employee, officer or arrangement existing on the Issue Date director benefit plans or thereafter arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (vii) transactions between or among the Company and and/or its Restricted Subsidiaries;
(iii) any Restricted Payment permitted by Section 4.07 and any Permitted Investment;
(iv) customary loans, advances, fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(viv) transactions entered into between or among the Company or any of its Restricted Subsidiaries and Persons any Joint Venture, or other Affiliate that would otherwise be subject to this covenant solely because the Company or a Restricted Subsidiary owns any Capital Stock of or otherwise controls such Person, on a basis no less favorable to the Company or such Restricted Subsidiary than could be obtained in a comparable transaction on an arm’s-length basis with a Person who is not an Affiliate of the Company, or, if no such comparable transaction with a Person who is not an Affiliate of the Company is available, on terms that are controlled fair from a financial point of view to the Company or such Restricted Subsidiary;
(vi) sales (including a sale in exchange for a promissory note of or Equity Interest in such Accounts Receivable Subsidiary) of accounts receivable and the provision of billing, collection and other services in connection therewith, in each case, to an Accounts Receivable Subsidiary in connection with any Receivables Facility;
(vii) transactions pursuant to any contract or agreement in effect on the Issue Date as the same may be amended, modified or replaced from time to time so long as any such contract or agreement as so amended, modified or replaced is, taken as a whole, no less favorable to the Company and its Restricted Subsidiaries than the contract or agreement as in effect on the Issue Date (as defined conclusively evidenced by a Board Resolution);
(viii) transactions effected pursuant to the terms of an agreement that was entered into, alone or as part of a series of agreements, pursuant to or in accordance with this Section 4.10;
(ix) transactions entered into by a Person prior to the time such Person becomes a Subsidiary or is merged or consolidated into the Company or a Subsidiary (provided such transaction is not entered into in contemplation of such event);
(x) dividends and distributions to the Company and its Restricted Subsidiaries by any Unrestricted Subsidiary or Joint Venture;
(xi) tax, administrative, cost-sharing and similar agreements between the Company or any Restricted Subsidiary and any permitted holding company referenced in the definition of “Affiliate”) by Change of Control” on terms that are fair from a financial point of view to the Company or such Restricted Subsidiary; and
(an “Unrestricted Affiliate”); provided that no xii) transactions with any customer, client, supplier, distributor or any other Person that controls (as so defined) purchase or is under common control with the Company holds any Investments sale of goods or services, in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture, which when taken together with other transactions with the same Person are, in the reasonable determination of the Board of Directors of the Company or the senior management of the Company, fair to the Company and its Restricted Subsidiaries or are on terms not less favorable than might have been obtained in a comparable transaction at such time on an aggregate principal amount arm’s length basis from a Person who is not to exceed $2.5 million outstanding at any one timean Affiliate.
Appears in 2 contracts
Samples: Indenture (Lyondell Chemical Co), Indenture (Lyondell Houston Refinery Inc.)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 5.0 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including a majority of the members directors of the Company have determined in good faith that the criteria set forth in clause (1) of this Section 4.08(a) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a Board of Directors having no personal stake in such Affiliate Transaction, and Resolution; and
(3) if such Affiliate Transaction involves an amount in excess of $25.0 million, the Board of Directors shall also have been determined by received a nationally recognized written opinion from an investment banking banking, accounting or accounting appraisal firm or other qualified independent appraiser of national prominence that is not an Affiliate of the Company to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of paragraph (a) of Section 4.08(a) shall 4.08 will not prohibit prohibit:
(i1) any sale of hydrocarbons Investment or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the CompanyRestricted Payment, in each casecase permitted to be made pursuant to Section 4.05;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors;
(3) loans or advances to employees or consultants in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate business of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time;
(4) the payment of Capital Stock reasonable fees to officers, employees, consultants or directors of the Company that does not constitute Disqualified Stockor its Restricted Subsidiaries and indemnity provided on behalf of officers, and the sale to an Affiliate employees, consultants or directors of the Company or its Restricted Subsidiaries;
(5) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(6) the issuance or sale of Indebtedness any Capital Stock (including other than Disqualified Stock) of the Company Company;
(7) the payment of annual management, consulting, monitoring and advisory fees to The Invus Group, Ltd. in connection with an offering amount in any fiscal year not to exceed the greater of such Indebtedness in a market transaction $1.0 million and on terms substantially identical to those 1.0% of other purchasers in such market transaction, EBITDA and any related out-of-pocket expenses;
(iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on 8) the Issue Date or thereafter entered into payment by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company The Invus Group, Ltd. and its Restricted Subsidiaries who are not employees of Affiliates in connection with any acquisition or divestiture transaction entered into by the Company or any Restricted Subsidiary; provided, however, that the aggregate amount of fees paid to The Invus Group, Ltd. and its Affiliates in respect of any acquisition or divestiture transaction shall not exceed 1% of the total amount of such transaction;
(v9) transactions between any agreement as in effect on the Issue Date and described in the Offering Circular or among any renewals, extensions or amendments of any such agreement (so long as such renewals, extensions or amendments are not less favorable to the Company and its or the Restricted Subsidiaries) and the transactions evidenced thereby;
(10) the existence of, (vi) transactions between 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 Persons any similar agreements which it may enter into thereafter; provided, however, that are controlled (as defined in the definition of “Affiliate”) existence of, or the performance by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is any of its Restricted Subsidiaries of obligations under common control with any future amendment to any such existing agreement or under any similar agreement entered into after the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are Issue Date shall only be permitted by this clause (10) of this paragraph (b) of this Section 4.08 to the provisions extent that the terms of Section 4.05any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in any material respect; and and
(viii11) loans transactions with customers, clients, suppliers or advances to employees purchasers or sellers of goods or services in each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors in 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 aggregate principal amount not to exceed $2.5 million outstanding at any one timeunaffiliated party.
Appears in 2 contracts
Samples: Dollar Securities Indenture (Gutbusters Pty LTD), Indenture (Gutbusters Pty LTD)
Limitation on Affiliate Transactions. (a) The Except for payments under the Building Contract which the Builders paid to TGE or which the Builders have directed to be paid directly to TGE, the Company shall not, and shall not permit any Restricted Subsidiary Owner to, enter into or permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary Owner than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million1,000,000, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million5,000,000, have been determined by a nationally recognized investment banking or accounting firm or other reasonably appropriate independent qualified independent appraiser given the size and nature of the transaction to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesthe Owners.
(b) The provisions of Section 4.08(athe foregoing paragraph (a) shall not prohibit (i) any sale of hydrocarbons or other mineral products Restricted Payment permitted to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect be paid pursuant to such transactionSection 4.05, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale to an Affiliate funding of, employment arrangements, stock options, stock ownership and other employee benefit plans approved by the Board of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionDirectors, (iii) transactions contemplated by any employment agreement the grant of stock options or other compensation plan similar rights to employees and directors of Holdings or arrangement existing on the Issue Date or thereafter entered into Company pursuant to plans approved by the Company or any Board of its Restricted Subsidiaries in the ordinary course of businessDirectors, (iv) the payment of reasonable fees paid to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiarythe Owners, (v) transactions any Affiliate Transaction between or among the Company and its Restricted Subsidiariesan Owner or between Owners, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) performance by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is and the Owners of their obligations under common control with the Company holds any Investments Management Agreement and, in such Unrestricted Affiliate; the case of the Owners, the Technical Supervision Agreement, the Technical Management Agreement and the Commercial Management Agreement, in each case in the form in effect on the Issue Date, and (vii) Restricted Payments that are permitted by certain payments to be made to GEBAB, TGE and Xenon on the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeIssue Date.
Appears in 2 contracts
Samples: Indenture (Navigator Gas Iom I-E LTD), Indenture (Navigator Gas Iom I-E LTD)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary 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 permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any of its Affiliates (including the purchaseeach, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”) unless the terms thereof "), unless:
(1) such Affiliate Transaction is on terms that are no not materially less favorable to the Company or such Restricted Subsidiary than those that could be would have been obtained at in a comparable transaction by the time of Company or such transaction in arm’s-length dealings Restricted Subsidiary with a Person who is not such an Affiliate, unrelated Person; and
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction involves an amount or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members resolution of the Board of Directors having no personal stake in such Affiliate Transaction, of the Company and (3) if an Officers' Certificate certifying that such Affiliate Transaction involves an amount complies with clause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of such Board of Directors; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser an opinion as to be fair, the fairness to the Holders of such Affiliate Transaction from a financial standpointpoint of view issued by an accounting, to the Company and its Restricted Subsidiariesappraisal or investment banking firm of national standing.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.08(a) shall not prohibit paragraph (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stocka) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, this Section 4.07:
(iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v1) transactions between or among the Company and its Restricted Subsidiaries;
(2) any Restricted Payment that is permitted by Section 4.04 of this Indenture;
(3) reasonable loans, advances, fees, benefits and compensation paid or provided to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary;
(vi4) transactions between pursuant to any contract or agreement in effect on the Issue Date as the same may be amended, modified or replaced from time to time so long as any such amendment, modification or replacement, taken as a whole, is no less favorable in any material respect to the Company or such Restricted Subsidiary than the contract or agreement as in effect on the Issue Date;
(5) 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;
(6) the issuance or sale of Qualified Equity Interests (and the exercise of any warrants, options or other rights to acquire Qualified Equity Interests);
(7) to the extent that the Company and one or more of its Restricted Subsidiaries are members of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Company is the common parent, payment of dividends or other distributions by the Company or one or more of its Restricted Subsidiaries pursuant to a tax sharing agreement or otherwise to the extent necessary to pay, and that are used to pay, any income taxes of such tax group that are attributable to the Company and its Restricted Subsidiaries and are not payable directly by the Company or any of its Restricted Subsidiaries and Persons Subsidiaries; provided, however, that are controlled the amount of any such dividends or distributions (as defined in the definition of “Affiliate”) plus any such taxes payable directly by the Company and its Restricted Subsidiaries) shall not exceed the amount of such taxes that would have been payable directly by the Company and its Restricted Subsidiaries had the Company been the U.S. common parent of a separate tax group that included only the Company and its Restricted Subsidiaries;
(a) the payment of fees to Sponsor pursuant to the Management Agreement not to exceed $500,000 (plus any amounts accrued pursuant to the following proviso) in any fiscal year of the Company; provided, however, that such payments may accrue but may not be paid during the existence of an “Unrestricted Affiliate”Event of Default arising from clause (1); provided that no other Person that controls , (as so defined2), (7) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions 8) of Section 4.056.01(a) of this Indenture; and (viiib) payments by the Company to or on behalf of the direct or indirect parent of the Company in an amount sufficient to pay out-of-pocket legal, accounting and filing and other general corporate overhead costs of such parent, customary salary, bonus and other benefits payable to officers and employees of a director or indirect parent of the Company and franchise taxes and other fees required to maintain its existence, actually incurred by such parent; provided, however, that such costs, salaries, bonuses, benefits, taxes and fees are attributable to the ownership of the Company and its Restricted Subsidiaries;
(9) reimbursements of bona fide out-of-pocket expenses of Sponsor incurred in connection with the general administration and management of SHG Holdings Solutions, Inc., the Company and any Restricted Subsidiaries of the Company; provided, however, that, in the case of SHG Holdings Solutions, Inc, such expenses are attributable to the ownership of the Company and its Restricted Subsidiaries or consist of expenses related to becoming or maintaining its status as a public company;
(10) loans or advances to employees of the Company or any Restricted Subsidiary (x) in the ordinary course of business or (y) in connection with the purchase by such Persons of Equity Interests of any direct or indirect parent of the Company so long as the cash proceeds of such purchase received by such direct or indirect parent are contemporaneously contributed to the common equity capital of the Company;
(11) transactions and any series of transactions with an Insurance Subsidiary that is an Unrestricted Subsidiary in the ordinary course of business that otherwise have been approved by the Board of Directors of the Company and are consistent with clause (1) of paragraph (a) of this Section 4.07;
(12) management, practice support and similar agreements with Related Professional Corporations entered into in the ordinary course of business and transactions pursuant thereto; and
(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 that are on terms no less favorable than those that would have been obtained in a comparable transaction with an unrelated party or on terms that are approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeof the Company, including a majority of the disinterested directors.
Appears in 2 contracts
Samples: Indenture (Leasehold Resource Group LLC), Indenture (SHG Holding Solutions Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 1.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale to event such Affiliate Transaction involves an Affiliate aggregate consideration in excess of $2.5 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.3;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the sale Board of Directors of the Company;
(3) loans or advances to an Affiliate employees, officers or directors of the Company of Indebtedness (including Disqualified Stock) or any Restricted Subsidiary of the Company in connection the ordinary course of business consistent with past practices, in an offering aggregate amount not in excess of such Indebtedness in a market transaction and on terms substantially identical $1.0 million with respect to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement all loans or other compensation plan or arrangement existing on advances made since the Issue Date (without giving effect to the forgiveness of any such loan); provided, however, that the Company and its Subsidiaries shall comply in all material respects with the provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in connection therewith relating to such loans and advances as if the Company had filed a registration statement with the SEC;
(4) any transaction between the Company and a Restricted Subsidiary or thereafter entered into between Restricted Subsidiaries and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.2;
(5) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors of Holdings, the Company or any Restricted Subsidiary;
(6) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries in under the ordinary course terms of business, (iv) the payment of reasonable fees any agreement to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and Persons identified on Schedule 3.8 to this Indenture on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are controlled not more disadvantageous to the Holders of the Securities than the terms of the agreements in effect on the Issue Date;
(as defined 7) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees each case in the ordinary course of the business of the Company and approved by its Restricted Subsidiaries and otherwise in compliance with the Company’s terms of this Indenture; provided that in the reasonable determination of the members of the Board of Directors or senior management 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 aggregate principal amount not unrelated Person;
(8) any issuance or sale of Capital Stock (other than Disqualified Stock) to exceed Affiliates of the Company and the granting of registration and other customary rights in connection therewith; and
(9) so long as no Default or Event of Default shall have occurred and be continuing, up to $2.5 million outstanding at 450,000 of consulting and management fees payable annually to Weston Presidio V, L.P. or any one timeof its Affiliates.
Appears in 2 contracts
Samples: Indenture (Cellu Tissue Holdings, Inc.), Indenture (Cellu Tissue - CityForest LLC)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof of such transaction (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sa comparable transaction in arm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 1.0 million, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no material personal financial stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 5.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and or its Restricted SubsidiariesSubsidiary, as the case may be.
(b) The foregoing provisions of Section 4.08(a4.7(a) shall not prohibit (i) any sale Permitted Investment or Restricted Payment permitted to be made pursuant to Section 4.4, or any payment or transaction specifically excepted from the definition of hydrocarbons Restricted Payment, (ii) any issuance of securities, or other mineral products to an Affiliate payments, awards or grants in cash, securities or otherwise and the performance of any other obligations of the Company or any Restricted Subsidiary pursuant to, or the entering funding of, employment arrangements, collective bargaining agreements, employee benefit plans, health and life insurance plans, deferred compensation plans, directors' and officers' indemnification agreements, retirement or savings plans, stock options and stock ownership plans or any other similar arrangement heretofore or hereafter entered into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of businessbusiness or consistent with past practice, so long as (iii) the terms grant of any such transaction are stock options or similar rights to employees and directors pursuant to plans approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) or the sale to an Affiliate board of directors of the Company of Capital Stock of the Company that does not constitute Disqualified Stockrelevant Restricted Subsidiary (iv) loans or advances to officers, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement directors or other compensation plan employees heretofore or arrangement existing on the Issue Date or thereafter hereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness or consistent with past practice, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries, or (vii) the purchase of or the payment of Indebtedness of or monies owed by the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) for goods or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans materials purchased, or advances to employees services received, in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timebusiness.
Appears in 2 contracts
Samples: Indenture (Chief Auto Parts Inc), Indenture (Chief Auto Parts Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary Group Member to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Group Member than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $15.0 12.5 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including either (A) a majority of the members committee of the Board of Directors having no personal stake in a majority of whose members are disinterested with respect to such transaction or (B) a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction, Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and that the relevant Affiliate Transaction is in the best interest of the Company or such Restricted Group Member and have approved the relevant Affiliate Transaction as evidenced by a Board Resolution; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $25.0 million, the Board of Directors shall also have been determined by received a nationally recognized written opinion from an investment banking or firm, accounting firm or other qualified independent appraiser appraisal firm of national prominence that is not an Affiliate of the Company to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesGroup Members.
(b) The provisions of Section 4.08(a4.07(a) shall will not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate of the Company or be made pursuant to Section 4.04;
(2) the entering into into, maintaining or performance of Oil and Gas Hedging Contractsany employment contract, gas gatheringcollective bargaining agreement, transportation benefit plan, program or processing contracts arrangement, related trust agreement or oil any other similar arrangement for or natural gas marketing with any employee, officer or exchange contracts with an Affiliate of the Company, in each case, director heretofore or hereafter entered into in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transactionincluding vacation, health, insurance, deferred compensation, retirement, savings or other similar plans;
(ii3) the sale to payment of compensation, performance of indemnification or contribution obligations, or an Affiliate issuance, grant or award of the Company of Capital Stock of the Company that does not constitute Disqualified Stockstock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionoptions, (iii) transactions contemplated by any employment agreement or other compensation plan equity-related interests or arrangement existing on the Issue Date other securities, to employees, officers or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, ;
(iv4) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries Group Members who are not employees of the Company or its Restricted Group Members;
(5) any transaction with a Restricted SubsidiaryGroup Member or joint venture or similar entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Group Member owns an equity interest in or otherwise controls such Restricted Group Member, joint venture or similar entity;
(v6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company; and
(7) transactions between with respect to the provision of Telecommunications Business services, including wireline or among wireless transmission capacity, the Company and its Restricted Subsidiarieslease or sharing or other use of cable or fiber optic lines, (vi) transactions equipment, rights-of-way or other access rights between the Company or any of its Restricted Subsidiaries Group Member and Persons that are controlled (as defined any other Person; provided, however, that, in the definition case of “Affiliate”this clause (7), such transaction complies with Section 4.07(a)(1) by and is in the best interest of the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeGroup Member.
Appears in 2 contracts
Samples: Credit Agreement (Winstar Communications Inc), Indenture (Winstar Communications Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1i) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2ii) if such Affiliate Transaction involves an amount in excess of $15.0 1 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3iii) if such Affiliate Transaction involves an amount in excess of $25.0 million5 million (other than Affiliate Transactions in the ordinary course of business of the Company and its Restricted Subsidiaries between or among the Company or any Restricted Subsidiary of the Company and any Person providing goods and/or services to the Company or any Restricted Subsidiary in the ordinary course of business that is an Affiliate of the Company or such Restricted Subsidiary solely by virtue of the fact that BRS, or any Person controlling BRS, directly or indirectly controls both the Company or such Restricted Subsidiary and such Affiliate; provided, however, that such Affiliate Transaction shall comply with clause (i) above), have been determined by (A) a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or (B) an accounting or appraisal firm nationally recognized in making such determinations to be on terms that are not less favorable to the Company and its Restricted Subsidiaries than the terms that could be obtained in an arm's-length transaction from a Person that is not an Affiliate of the Company.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products Restricted Payment permitted to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect be paid pursuant to such transactionSection 4.04, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale to an Affiliate funding of, employment arrangements, stock options and stock ownership plans approved by the Board of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionDirectors, (iii) transactions contemplated by any employment agreement the grant of stock options or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees similar rights to employees and directors of the Company and its Restricted Subsidiaries who are not employees pursuant to plans approved by the Board of the Company or any Restricted SubsidiaryDirectors, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiiv) loans or advances to employees in the ordinary course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $2 million in the aggregate outstanding at any one time, (v) the payment of reasonable compensation or employee benefit arrangements to and approved by indemnity provided for the Company’s Board benefit of Directors directors, officers or employees of the Company or its Restricted Subsidiaries in the ordinary course of business, (vi) payments made in connection with the Transactions, including the payment to BRS, the Co-Investors or any of their respective Affiliates of (A) a transaction fee in connection with the Merger in an aggregate principal amount not to exceed $2.5 6 million outstanding at and (B) other fees pursuant to the Management Agreement in an annual amount not to exceed in any fiscal year an amount equal to the greater of (x) $1 million and (y) one timeand one-half percent of the Company's EBITDA for such fiscal year, (vii) any Affiliate Transaction between the Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries and (viii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company.
Appears in 2 contracts
Samples: Indenture (Mediq Inc), Indenture (Mediq Inc)
Limitation on Affiliate Transactions. (a) The Neither the Company nor the Issuer shall, nor shall not, and shall not the Company permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company Company, (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 US$1.0 million, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority Directors of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Company and (3) in addition, if such Affiliate Transaction involves an as amount in excess of $25.0 US$5.0 million, have been determined by a nationally an internationally recognized investment banking firm or, if pertaining to a matter for which such investment banking firms do not customarily render such opinions, an appraisal or accounting valuation firm or other qualified independent appraiser of international reputation, to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(athe foregoing paragraph (a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.05, (ii) any issuance of hydrocarbons securities, or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of or its Restricted Subsidiaries, but in any event not to exceed US$l.0 million in the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Wholly Owned Subsidiary or any between Wholly Owned Subsidiaries, (vii) the payment of fees for management services provided in the ordinary course of business in accordance with the past practices of the Company or its Restricted Subsidiaries and Persons that are controlled (as defined Subsidiaries, but in any event not to exceed US$1.0 million in the definition of “Affiliate”aggregate in any calendar year, (viii) by the Company (an “Unrestricted Affiliate”)from performing its obligations under the Propylene Supply Agreement; provided that no other Person that controls (as so defined) or is under common control any amendment to the Propylene Supply Contract complies with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; 4.09(a) (1) and (viiia) loans or advances (2) (i) and (ii) above, and (ix) the Company from entering into agreements to employees sell polypropylene in the ordinary course of business and approved by consistent with past practices; provided that any such agreement complies with the Company’s Board provisions of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at clause (a) (1) above; provided further that if a Change of Control has occurred, any one timesuch agreement complies also with the provisions of Section 4.09(a) (2) (ii) above.
Appears in 2 contracts
Samples: Indenture (Pt Polytama Propindo), Indenture (Pt Polytama Propindo)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate value in excess of $5.0 million unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount aggregate value in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company Company. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in Section 3.8(a)(2) if such Affiliate Transaction is approved by a majority of the Disinterested Directors of the Company, if any.
(b) Section 3.8(a) shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment;
(2) any issuance or sale of Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, and the sale to an Affiliate of the Company of Indebtedness any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including Disqualified Stockvaluation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company in connection the ordinary course of business;
(3) any Management Advances and any waiver or transaction with an offering respect thereto;
(4) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such Indebtedness in a market transaction transaction), or between or among Restricted Subsidiaries;
(5) the payment of compensation, reasonable fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on terms substantially identical to those behalf of, directors, officers, consultants or employees of other purchasers in such market transaction, the Company or any Restricted Subsidiary of the Company (iii) transactions contemplated whether directly or indirectly and including through any Person owned or controlled by any employment agreement of such directors, officers or other compensation plan or arrangement existing on employees);
(6) the Issue Date or thereafter entered entry into by and performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not more disadvantageous to the Holders in any material respect;
(7) any customary transaction with a Securitization Entity effected as part of a Securitization;
(8) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business, (iv) which are fair to the payment Company or the relevant Restricted Subsidiary in the reasonable determination of reasonable fees to directors the Board of Directors or the management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(9) any transaction between or among the Company or any Restricted Subsidiary and its any Person that is an Affiliate of the Company or an Associate or similar entity solely because the Company or a Restricted Subsidiaries who are not employees Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(10) issuances or sales of Capital Stock (other than Disqualified Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary, ;
(v11) transactions between or among 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 Section 3.8(a)(1);
(12) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of its Restricted Subsidiaries, obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respects;
(vi13) transactions between any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries and the majority of which Indebtedness or Disqualified Stock is purchased by Persons that who are controlled (as defined in not the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”)Company’s Affiliates; provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates; and
(14) the provision of mortgage brokerage and servicing, asset management and similar services to Affiliates not prohibited by this Indenture that are fair to the Company and its Restricted Subsidiaries (as determined in good faith by the Board of Directors or the 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 (as determined in an aggregate principal amount not to exceed $2.5 million outstanding at any one timegood faith by the Board of Directors or the management of the Company).
Appears in 2 contracts
Samples: Indenture (Ladder Capital Finance Corp), Indenture (Ladder Capital Corp)
Limitation on Affiliate Transactions. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company or a Permitted Affiliate Parent (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of $50.0 million for such Affiliate Transactions in any fiscal year, unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable favorable, taken as a whole, to the Company Company, such Permitted Affiliate Parent or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate (or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company, such Permitted Affiliate Parent or such Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company, such Permitted Affiliate Parent or such Restricted Subsidiary has conclusively determined in good faith to be fair to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary); and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 100.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including either (i) a majority of the members of the Board of Directors having no personal stake in or (ii) senior management of the Company, such Permitted Affiliate TransactionParent, and (3) if or such Affiliate Transaction involves an amount in excess of $25.0 millionRestricted Subsidiary, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesas applicable.
(b) The provisions of Section 4.08(a4.11(a) shall will not prohibit apply to:
(i1) any Restricted Payment permitted to be made pursuant to Section 4.07 or any Permitted Investment;
(2) any issuance or sale of hydrocarbons Capital Stock, options, other equity-related interests or other mineral products to an Affiliate of the Company securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into into, or performance of Oil maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and Gas Hedging Contractsother compensation arrangements, gas gatheringoptions, transportation warrants or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate other rights to purchase Capital Stock of the Company, a Permitted Affiliate Parent, any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultant plans (including, without limitation, valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) and/or indemnities provided on behalf of officers, employees or directors or consultants, in each case, case in the ordinary course of business;
(3) loans or advances to employees, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement officers or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, (iv) the payment of reasonable fees to directors business of the Company and its Restricted Subsidiaries who are not employees of the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary, but in any event not to exceed $10.0 million in the aggregate amount outstanding at any one time with respect to all loans or advances made since the First Amendment Effective Date;
(v4) transactions (A) any transaction between or among the Company Company, a Permitted Affiliate Parent and its a Restricted Subsidiaries, Subsidiary (vior an entity that becomes a Restricted Subsidiary in connection with such transaction) transactions or between the Company or any of its among Restricted Subsidiaries and Persons (or an entity that are controlled (as defined becomes a Restricted Subsidiary 60 in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”connection with such transaction); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiB) loans any guarantees issued by the Company, a Permitted Affiliate Parent or advances to employees a Restricted Subsidiary for the benefit of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary (or an entity that becomes a Restricted Subsidiary in connection with such transaction), as the case may be, in accordance with Section 4.09;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and approved otherwise in compliance with the terms of this Agreement, which, taken as a whole, are fair to the Company, the relevant Permitted Affiliate Parent or Restricted Subsidiary, as applicable, or are on terms not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(6) loans or advances to any Affiliate of the Company or a Permitted Affiliate Parent by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, provided that the terms of such loan or advance are fair to the Company or the relevant Permitted Affiliate Parent or Restricted Subsidiary, as the case may be, or are on terms not materially less favorable than those that could reasonably have been obtained from an unaffiliated party;
(7) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors, executives or officers of any Parent, the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(8) the performance of obligations of the Company, any Permitted Affiliate Parent, or any of the Restricted Subsidiaries under (A) the terms of any agreement to which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries is a party as of or on the First Amendment Effective Date or (B) any agreement entered into after the First Amendment Effective Date on substantially similar terms to an agreement under Section 4.11(b)(8)(A), in each case, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any such agreement or amendment, modification, supplement, extension or renewal to such agreement, in each case, entered into after the First Amendment Effective Date will be permitted to the extent that its terms are not materially more disadvantageous to the Finance Parties than the terms of the agreements in effect on the First Amendment Effective Date;
(9) any transaction with (i) a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations or (ii) with an Affiliate in respect of Non-Recourse Indebtedness;
(10) the issuance of Capital Stock or any options, warrants or other rights to acquire Capital Stock (other than Disqualified Stock) of the Company or a Permitted Affiliate Parent to any Affiliate of the Company or such Permitted Affiliate Parent;
(11) the payment to any Permitted Holder of all reasonable expenses Incurred by any Permitted Holder in connection with its direct or indirect investment in the Company, a Permitted Affiliate Parent and their Subsidiaries and unpaid amounts accrued for prior periods;
(12) the payment to any Parent or Permitted Holder (1) of Management Fees (A) on a bona fide arm’s-length basis in the ordinary course of business or (B) of up to the greater of $35.0 million and 0.5% of Total Assets in any calendar year, (2) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including without limitation in connection with loans, capital market transactions, hedging and other derivative transactions, acquisitions or divestitures or (3) of Parent Expenses;
(13) guarantees of Indebtedness, hedging and other derivative transactions, and other obligations not otherwise prohibited under this Agreement;
(14) if not otherwise prohibited under this Agreement, the issuance of Capital Stock (other than Disqualified Stock) or Subordinated Shareholder Loans (including the payment of cash interest thereon; provided that, after giving pro forma effect to any such cash interest payment, the Consolidated Senior Secured Net Leverage Ratio would not exceed 4.00 to 1.00) of the Company or a Permitted Affiliate Parent to any Parent of the Company or a Permitted Affiliate Parent or any Permitted Holder;
(15) arrangements with customers, clients, suppliers, contractors, lessors or sellers of goods or services that are negotiated with an Affiliate, in each case, which are otherwise in compliance with the terms of this Agreement; provided that the terms and conditions of any such transaction or agreement as applicable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries, taken as a whole are fair to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries and are on terms not materially less favorable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries than those that could have reasonably been obtained in respect of an analogous transaction or agreement that would not constitute an Affiliate Transaction;
(16) (A) transactions with Affiliates in their capacity as holders of indebtedness or Capital Stock of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness or Capital Stock generally, and (B) transactions with Affiliates in their capacity as borrowers of indebtedness from the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness generally;
(17) any tax sharing agreement or arrangement and payments pursuant thereto between or among the Ultimate Parent, the Company, a Permitted Affiliate Parent or any other Person or a Restricted Subsidiary not otherwise prohibited by this Agreement and any payments or other transactions pursuant to a tax sharing agreement between the Company, a Permitted Affiliate Parent and any other Person or a Restricted Subsidiary and any other Person with which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries files a Consolidated tax return or with which the Company, a Permitted Affiliate Parent or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation;
(18) transactions relating to the provision of Intra-Group Services in the ordinary course of business;
(19) the 2015 Columbus Carve-Out and related transactions;
(20) [Reserved];
(21) the 2016 Transactions;
(22) any transaction reasonably necessary to effect the Post-Closing Reorganization and/or a Spin-Off;
(23) any transaction in the ordinary course of business between or among the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and any Affiliate of the Company or a Permitted Affiliate Parent that is an Unrestricted Subsidiary or a joint venture or similar entity (including a Permitted Joint Venture) that would constitute an Affiliate Transaction solely because the Company, a Permitted Affiliate Parent or a Restricted Subsidiary owns an equity interest in or otherwise controls such Unrestricted Subsidiary, joint venture or similar entity;
(24) commercial contracts entered into in the ordinary course of business between an Affiliate of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and the Company, a Permitted Affiliate Parent or any Restricted Subsidiary that are on arm’s Board length terms or on a basis that senior management of Directors the Company, a Permitted Affiliate Parent or a Restricted Subsidiary reasonably believes allocates costs fairly;
(25) transactions between any Restricted Subsidiary and C&W Communications and/or its Subsidiaries, or between the Company and C&W Communications and/or its Subsidiaries, in an aggregate principal amount not each case, to exceed $2.5 million outstanding at effect or facilitate the transfer of any one timeproperty or asset from the Company, any Permitted Affiliate Parent and/or any Restricted Subsidiary to another Restricted Subsidiary, any Permitted Affiliate Parent and/or the Company, as applicable;
(26) any Permitted Financing Action; and
(27) any transaction reasonably necessary to effect the Group Refinancing Transactions.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 5.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale to event such Affiliate Transaction involves an Affiliate aggregate consideration in excess of $10.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.3;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified Stockrestricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans, pension plans or similar plans and/or indemnity provided on behalf of directors, officers and employees approved by the sale Board of Directors of the Company;
(3) loans or advances to an Affiliate employees, officers or directors of the Company of Indebtedness (including Disqualified Stock) or any Restricted Subsidiary of the Company in connection the ordinary course of business consistent with past practices, in an offering aggregate amount outstanding at any time not in excess of $2.5 million (without giving effect to the forgiveness of any such Indebtedness loan);
(4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in a market transaction accordance with Section 3.2;
(5) the payment of reasonable and customary fees paid to, and indemnity provided on terms substantially identical to those behalf of, directors of other purchasers in such market transactionthe Company or any Restricted Subsidiary;
(6) the existence of, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on and the Issue Date or thereafter entered into by performance of obligations of the Company or any of its Restricted Subsidiaries in under the ordinary course terms of business, (iv) the payment of reasonable fees any agreement to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between which the Company or any of its Restricted Subsidiaries and Persons is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are controlled not more disadvantageous to the Holders of the Securities than the terms of the agreements in effect on the Issue Date;
(as defined 7) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees each case in the ordinary course of the business of the Company and approved by its Restricted Subsidiaries and otherwise in compliance with the Company’s terms of this Indenture; provided that in the reasonable determination of the members of the Board of Directors or senior management 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 aggregate principal amount not unrelated Person; and
(8) any issuance or sale of Capital Stock (other than Disqualified Stock) to exceed $2.5 million outstanding at any one timeAffiliates of the Company and the granting of registration and other customary rights in connection therewith.
Appears in 2 contracts
Samples: Indenture (Libbey Inc), Indenture (Libbey Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate value in excess of $5.0 million unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 35.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company Company. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.
(b) The provisions of Section 3.8(a) above shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment;
(2) any issuance or sale of Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company or any Restricted Subsidiary, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business or consistent with past practices;
(3) any transaction between or among the Company and any Restricted Subsidiary (or entity that does not constitute Disqualified Stockbecomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries;
(4) the payment of compensation, reasonable fees and reimbursement of expenses to, and the sale to an Affiliate customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees of the Company of Indebtedness (including Disqualified Stock) or any Restricted Subsidiary of the Company in connection with an offering (whether directly or indirectly and including through any Person owned or controlled by any of such Indebtedness in a market transaction directors, officers or employees);
(5) the entry into and on terms substantially identical to those performance of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by obligations of the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8(b) or to the extent not more disadvantageous to the Holders in any material respect;
(6) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practices, (iv) which are fair to the payment Company or the relevant Restricted Subsidiary in the reasonable determination of reasonable fees to directors the Board of Directors or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(7) any transaction between or among the Company or any Restricted Subsidiary and its any Affiliate of the Company or an Associate or similar entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiaries who are not employees Subsidiary owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(8) issuances or sales of Capital Stock (other than Disqualified Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary, ;
(v9) transactions between or among in which the Company and its or any Restricted SubsidiariesSubsidiary, 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 Section 3.8(a)(1);
(vi10) transactions between any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries and the majority of which Indebtedness or Disqualified Stock is purchased by Persons that who are controlled (as defined in not the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”)Company’s Affiliates; provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved purchases by the Company’s Board Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates; and
(11) transactions entered into by an Unrestricted Subsidiary, so long as not entered in contemplation of Directors in the redesignation as a Restricted Subsidiary, with an aggregate principal amount not Affiliate prior to exceed $2.5 million outstanding at the redesignation of any one timesuch Unrestricted Subsidiary as a Restricted Subsidiary as described under Section 3.15.
Appears in 2 contracts
Samples: Indenture (Cott Corp /Cn/), Indenture (Cott Corp /Cn/)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless: (1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 1.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in Section 3.8(a)(1)); and (3) in the sale to event such Affiliate Transaction involves an Affiliate aggregate consideration in excess of $5.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate.
(b) Section 3.8(a) shall not apply to: (1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.5; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the sale Board of Directors; (3) loans or advances to an Affiliate employees, officers or directors in the ordinary course of business of the Company or any of Indebtedness its Restricted Subsidiaries but in any event not to exceed $1.5 million in the aggregate outstanding at any one time with respect to all loans or advances made since the Issue Date; (including 4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.3; (5) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors of the Company or any Restricted Subsidiary; (6) the fees payable by the Company in connection with the Transaction; (7) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and identified on a schedule to this Indenture on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are not more disadvantageous to the holders of the Securities than the terms of the agreements in effect on the Issue Date; (8) the issuance of Capital Stock (other than Disqualified Stock) of the Company in connection with an offering to any Affiliate; and (9) entrance into and performance of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company business or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timegood faith.
Appears in 2 contracts
Samples: Indenture (NBC Acquisition Corp), Indenture (Nebraska Book Co)
Limitation on Affiliate Transactions. (a) The Company Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to, enter into directly or permit to exist indirectly, engage in any transaction (including or series of related transactions) involving in the purchase, sale, lease aggregate $5,000,000 or exchange of any property, employee compensation arrangements or the rendering of any service) more with any Affiliate unless such transaction (or series of related transactions) shall have been approved pursuant to a Committee Resolution rendered in good faith by the Executive Committee or, if applicable, a committee comprising the disinterested members of the Company (an “Affiliate Transaction”) unless the terms thereof (1) are no less favorable Executive Committee, which approval in each case shall be conclusive, to the Company effect that such transaction (or series of related transactions) is (a) in the best interest of Mediacom Broadband LLC or such Restricted Subsidiary than those that could and (b) upon terms which would be obtained at the time of obtainable by Mediacom Broadband LLC or such transaction Restricted Subsidiary in a comparable arm’s-length dealings transaction with a Person who which is not such an Affiliate, (2) if such Affiliate Transaction involves an amount except that the foregoing shall not apply in excess the case of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority any of the members following transactions (the “Specified Affiliate Transactions”): (i) the making of any Restricted Payment (including, without limitation, the Board making of Directors having no personal stake in such Affiliate Transaction, and any Restricted Payment that is permitted pursuant to subclauses (31) if such Affiliate Transaction involves an amount in excess through (14) of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
paragraph (b) The provisions of Section 4.08(a1007) shall not prohibit and the making of any Permitted Investment; (iii) any sale transaction or series of hydrocarbons transactions between Mediacom Broadband LLC and one or other mineral products more Restricted Subsidiaries or between two or more Restricted Subsidiaries; (iii) the payment of compensation (including, without limitation, amounts paid pursuant to an Affiliate employee benefit plans) for the personal services of, and indemnity provided on behalf of, officers, members, directors and employees of the Company Mediacom Broadband LLC or the entering into any Restricted Subsidiary, and management, consulting or performance advisory fees and reimbursements of Oil expenses and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, indemnity in each case, case so long as the Executive Committee in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; (iv) any payments for goods or services purchased in the ordinary course of business, so long as upon terms which would be obtainable by Mediacom Broadband LLC or a Restricted Subsidiary in a comparable arm’s-length transaction with a Person which is not an Affiliate; (v) any transaction pursuant to any agreement with any Affiliate in effect on the date of this Indenture (including, but not limited to, the Management Agreements, the Operating Agreement and other agreements relating to the payment of management fees, acquisition fees and expense reimbursements), including, without limitation, any amendments thereto entered into after the date of this Indenture, provided that the terms of any such transaction amendment are approved not less favorable to Mediacom Broadband LLC than the terms of the relevant agreement in effect prior to any such amendment, as determined in good faith by the Executive Committee whose determination shall be conclusive and evidenced by a majority Committee Resolution; (vi) any transaction or series of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company between Mediacom Broadband LLC or any of its Restricted Subsidiaries in Subsidiaries, on the ordinary course one hand, and Mediacom Communications or any of businessits direct or indirect Subsidiaries, on the other hand, which relate to (a) the sharing of centralized services, personnel, facilities, headends and plant, (ivb) the payment joint procurement of reasonable fees goods and services, (c) the allocation of costs and expenses (other than taxes based on income) and (d) matters reasonably related to directors any of the Company foregoing, in each case, which are undertaken pursuant to an established plan of Mediacom Communications the primary purpose of which is to result in cost savings and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiaryrelated synergies for Mediacom Broadband LLC, (v) transactions between or among the Company and its Restricted Subsidiaries, Mediacom Communications and each of Mediacom Communications’ other direct or indirect Subsidiaries involved in such transaction or series of transactions; provided that, in the case of this clause (vi), such plan shall have been approved pursuant to a Committee Resolution, rendered in good faith by the Executive Committee, which approval in each case shall be conclusive, to the effect that such plan is in the best interest of Mediacom Broadband LLC or such Restricted Subsidiary; and provided, further, that such transaction or series of related transactions is fair and reasonable to Mediacom Broadband LLC or such Restricted Subsidiary, on the one hand, and to Mediacom Communications and each such other Subsidiary of Mediacom Communications, on the other hand; and (vii) the receipt from any Affiliate of any payment, Investment, distribution, loan or other extension of credit or any other consideration if the payment or making thereof would, if made by Mediacom Broadband LLC or by any Restricted Subsidiary to an Affiliate thereof, constitute a Specified Affiliate Transaction under any of the foregoing clauses (i) through (vi) of this paragraph or would comply with the last two sentences of this Section 1009. Except in the case of a Specified Affiliate Transaction, Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, engage in any transaction (or series of related transactions) involving in the aggregate (y) $25,000,000 or more in all instances except in the case of Asset Sales or Asset Swaps and (z) $50,000,000 or more in the case of any Asset Sale or Asset Swap, in each case, with any Affiliate unless (i) such transaction (or series of related transactions) shall have been approved pursuant to a Committee Resolution rendered in good faith by the Executive Committee or, if applicable, a committee comprising the disinterested members of the Executive Committee to the effect set forth in clauses (a) and (b) above, which approval in each case shall be conclusive and evidenced by a Committee Resolution; and (ii) Mediacom Broadband LLC shall have received an opinion from an independent nationally recognized accounting, appraisal or investment banking firm experienced in the review of similar types of transactions between stating that the Company terms of such transaction (or series of related transactions) are fair to Mediacom Broadband LLC or such Restricted Subsidiary, as the case may be, from a financial point of view, which opinion shall be conclusive. Notwithstanding the foregoing, any transaction (or series of related transactions) entered into by Mediacom Broadband LLC or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control Subsidiary with any Affiliate without complying with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by foregoing provisions of this Section 1009 shall not constitute a violation of the provisions of this Section 4.05; and 1009 if Mediacom Broadband LLC or such Restricted Subsidiary would be permitted to make a Restricted Payment pursuant to paragraph (viiia) loans of Section 1007 at the time of the completion of such transaction (or advances series of related transactions) in an amount equal to employees the fair market value of such transaction (or series of related transactions), as determined in the ordinary course of business and approved good faith by the Company’s Board of Directors Executive Committee, whose determination shall be conclusive and evidenced by a Committee Resolution. In such a case, Mediacom Broadband LLC or such Restricted Subsidiary, as the case may be, shall be deemed to have made a Restricted Payment in an aggregate principal amount not equal to exceed $2.5 million outstanding at any one timethe fair market value of such transaction for purposes of the calculation of Restricted Payments pursuant to clause (iii) of paragraph (a) of Section 1007.
Appears in 2 contracts
Samples: Indenture (Mediacom Broadband Corp), Indenture (Mediacom Broadband Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or asset or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof ), if such Affiliate Transaction or series of related Affiliate Transactions involve aggregate consideration in excess of $5.0 million, unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary (as reasonably determined by the Company) than those that could be have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who that is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 50.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any, and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (ii1) of this Section 4.10(a); and
(3) in the sale to event such Affiliate Transaction involves an aggregate consideration in excess of $75.0 million, the Company has received a written opinion from an Independent Financial Advisor that such Affiliate Transaction is fair from a financial point of view.
(b) Section 4.10(a) shall not apply to:
(1) any transaction that is in the ordinary course of business and consistent with past practice between the Company or a Restricted Subsidiary and any Unrestricted Asian Subsidiary;
(2) any transaction involving the provision of services or the supply of goods or equipment between the Company or a Restricted Subsidiary and a Joint Venture in which the Company and/or a Restricted Subsidiary has a material ownership interest that is entered into in the ordinary course of business consistent with past practices of the Company and/or any of its Restricted Subsidiaries;
(3) any transaction between the Company and a Restricted Subsidiary (other than a Receivables Entity) or between Restricted Subsidiaries (other than a Receivables Entity or Receivables Entities) and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary in accordance with Section 4.03;
(4) (a) any Restricted Payment permitted to be made pursuant to Section 4.04 and (b) any Permitted Investments;
(5) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or as the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity or insurance provided on behalf of current or former officers and employees pursuant to any plans approved by the sale Board of Directors of the Company;
(6) the payment of reasonable and customary fees paid to an Affiliate and any indemnity and insurance provided on behalf of (x) current or former directors of the Company and any Restricted Subsidiary and (y) current or former directors of Indebtedness (including Disqualified Stock) of the Company any Unrestricted Subsidiary, provided that such fees, indemnity or insurance are similar in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical scope to those provided in clause (6)(x);
(7) loans or advances to employees, officers or directors of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business, in an aggregate amount not in excess of $10.0 million (ivwithout giving effect to the forgiveness of any such loan);
(8) any agreement as in effect as of the Issue Date, as such agreement may be amended, modified, supplemented, extended or renewed from time to time, so long as the terms of such agreement as so amended, modified, supplemented, extended or renewed are not more disadvantageous to the Holders in any material respect, when taken as a whole, than the terms of such agreement in effect on the Issue Date; provided that if such amendment, modification, supplement, extension or renewal involves an aggregate consideration in excess of $50.0 million, the terms thereof have been approved by the Board of Directors;
(9) any agreement between any Person and an Affiliate of such Person existing at the payment time such Person is acquired by or merged into the Company or a Restricted Subsidiary; provided that such agreement was not entered into contemplation of reasonable fees such acquisition or merger, and any amendment thereto (so long as any such agreement as so amended is not disadvantageous to directors the Holders, when taken as a whole, as compared to the applicable agreement as in effect on the date of such acquisition or merger, provided that if such amendment involves an aggregate consideration in excess of $50.0 million, the terms thereof have been approved by the Board of Directors);
(10) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Restricted Subsidiaries who and otherwise in compliance with the terms of the Indenture; provided that in the reasonable determination of the Board of Directors or Senior Management of the Company, such transactions are on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person;
(11) any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(12) sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction;
(13) transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not employees materially less favorable than those that could have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;
(14) transactions between and among the Company and Excluded Project Subsidiaries; and
(15) transactions between the Company 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 and such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Restricted Subsidiary; provided, (v) transactions between or among the Company and its Restricted Subsidiarieshowever, (vi) transactions between that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no matter involving such other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timePerson.
Appears in 2 contracts
Samples: Seventh Supplemental Indenture (Covanta Holding Corp), Sixth Supplemental Indenture (Covanta Holding Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make any transaction (including contract, agreement, understanding, loan, advance or Guarantee with, or for the purchasebenefit of, saleany Affiliate, lease any Partner or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of any Partner (each of the Company (foregoing, an “"Affiliate Transaction”) "), unless the terms thereof (1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sa comparable arm's-length dealings transaction with a Person who that is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or and (2) the entering into or performance Company delivers to the Trustee (a) with respect to any Affiliate Transaction involving aggregate consideration in excess of Oil and Gas Hedging Contracts$10 million, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate a resolution of the Company, Partnership Governance Committee set forth in each case, in the ordinary course of business, so long as the terms of any an Officers' Certificate certifying that such transaction are Affiliate Transaction complies with clause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors who are disinterested Partnership Governance Committee and (b) with respect to such transactionany Affiliate Transaction involving aggregate consideration in excess of $25 million, (ii) an opinion as to the sale fairness to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering or such Restricted Subsidiary of such Indebtedness in Affiliate Transaction from a market transaction and on terms substantially identical to those financial point of other purchasers in such market transaction, view issued by an investment banking firm of national standing; provided that:
(iiii) transactions contemplated by or payments pursuant to any employment agreement arrangements or other compensation plan employee, officer or arrangement existing on the Issue Date director benefit plans or thereafter arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (vii) transactions between or among the Company and and/or its Restricted Subsidiaries;
(iii) customary loans, advances, fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(viiv) transactions in the ordinary course of business between the Company or any of its Restricted Subsidiaries and Persons that are controlled any Partner or Affiliate of any Partner, provided that, with respect to any such Affiliate Transaction involving aggregate consideration in excess of $25 million, such Affiliate Transaction complies with clause (1) above and has been approved by the Partnership Governance Committee, including a majority of the disinterested members (if any);
(v) sales (including a sale in exchange for a promissory Note of or equity interest in such Accounts Receivable Subsidiary) of accounts receivable, related assets and the provision of billing, collection and other services in connection therewith, in each case, to an Accounts Receivable Subsidiary in connection with any Receivables Facility;
(vi) transactions pursuant to any contract or agreement in effect on the Issue Date, as the same may be amended, modified or replaced from time to time, so long as any such contract or agreement as so amended, modified or replaced is, taken as a whole, no less favorable to the Company and its Restricted Subsidiaries in any material respect than the contract or agreement as in effect on the Issue Date (as defined in conclusively evidenced by a resolution of the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”Partnership Governance Committee); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; ;
(vii) any transaction or series of transactions between the Company or any Restricted Payments Subsidiary and any of their Joint Ventures, provided that are permitted by the provisions (i) such transaction or series of Section 4.05; and (viii) loans or advances to employees transactions is in the ordinary course of business between the Company or such Restricted Subsidiary and such Joint Venture, and (ii) with respect to any such Affiliate Transaction involving aggregate consideration in excess of $25 million, such Affiliate Transaction complies with clause (1) above and such Affiliate Transaction has been approved by the Company’s Board Partnership Governance Committee, including a majority of Directors the disinterested members (if any); and
(viii) any Restricted Payment of the type described in an aggregate principal amount clause (1) or (2) of the first paragraph of Section 4.07 and any Permitted Dividend; in each case, shall not be deemed to exceed $2.5 million outstanding at any one timebe Affiliate Transactions and therefore (except as otherwise specified in such clauses) not subject to the requirements of clauses (1) and (2) of the initial paragraph above.
Appears in 2 contracts
Samples: Indenture (Equistar Chemicals Lp), Indenture (Lyondell Chemical Co)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”"AFFILIATE TRANSACTION") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 1.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines, or determine, that such Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $10.0 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate.
(b) The foregoing paragraph (a) will not apply to (i) any Restricted Payment permitted to be made pursuant to the covenant described under SECTION 3.4 of this Indenture, (ii) the sale any issuance of (A) securities to an Affiliate any of the Company Permitted Holders or (B) securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Capital Stock Directors of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries, (iv) any transaction between the Company and approved by a Wholly-Owned Subsidiary or between Wholly-Owned Subsidiaries, (v) any fees, indemnities, loans or advances to employees in the Company’s Board ordinary course of Directors business and consistent with past practices and (vi) payments under the Management Agreement as in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeeffect on the Issue Date.
Appears in 2 contracts
Samples: Indenture (Ne Restaurant Co Inc), Indenture (Bertuccis of White Marsh Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 25.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 75.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, on market terms and in the ordinary course of business, so long as the terms of any such transaction (or the arrangement or framework for establishing such terms) are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; (vii) sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with any Qualified Receivables Transaction; (viii) agreements between the Company and its Restricted Subsidiaries and CNX Gas that are disclosed in the Company’s annual report on Form 10-K for the year ended December 31, 2009; and (viiiix) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 7.5 million outstanding at any one time.
Appears in 2 contracts
Samples: Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of $10.0 million unless:
(1) the terms of such Affiliate Transaction are no less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 35.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above). The preceding paragraph will not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 4.12 or any Investment described in the sale definition of “Permitted Investments”;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to an Affiliate of the Company of purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, stock purchase, ownership or option plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee or director benefits plans provided on behalf of directors, officers, consultants and the sale to an Affiliate employees of the Company and its Subsidiaries, in each case, as approved by the Board of Indebtedness Directors of the Company;
(including Disqualified Stock3) loans or advances to employees, consultants, officers or directors in the ordinary course of business of the Company or any of its Restricted Subsidiaries (including for travel, entertainment, moving or relocation) or Guarantees in connection respect thereof or otherwise made on their behalf (including payment on any such Guarantees) made in compliance with an offering applicable law but in any event not to exceed $15.0 million in the aggregate outstanding (without giving effect to the forgiveness of any such Indebtedness loan) at any one time with respect to all loans or advances made since the Issue Date;
(4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company, a Restricted Subsidiary and/or a Special Purpose Licensed Entity and/or a Receivables Subsidiary, as the case may be, in accordance with Sections 4.10 and 4.13;
(5) the payment of reasonable and customary fees to directors, and indemnity provided on behalf of, directors, officers, employees or consultants, of the Company or any of its Subsidiaries;
(6) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a market transaction and on terms substantially identical to those party as of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are not, in the good faith judgment of the Company’s Board of Directors or thereafter Senior Management, more materially disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the Issue Date;
(7) transactions entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness (including, without limitation, management contracts and payments pursuant to management contracts) with any Person (ivincluding, without limitation, any joint venture, limited or general partnership, limited liability company or similar business entity) the payment that owns or has any rights to use property or assets used or useful in a Permitted Business;
(8) sales of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company Receivables, or participations therein, in connection with any Restricted Subsidiary, Qualified Receivables Transaction; and
(v9) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or relating to any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timecash pooling arrangement.
Appears in 2 contracts
Samples: Indenture (Davita Healthcare Partners Inc.), Indenture (Southwest Atlanta Dialysis Centers, LLC)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of $10.0 million unless:
(1) the terms of such Affiliate Transaction are no less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 35.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above). The preceding paragraph will not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 4.12 or any Investment described in the sale definition of “Permitted Investments”;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to an Affiliate of the Company of purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, stock purchase, ownership or option plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee or director benefits plans provided on behalf of directors, officers, consultants and the sale to an Affiliate employees of the Company and its Subsidiaries, in each case, as approved by the Board of Indebtedness Directors of the Company;
(including Disqualified Stock3) loans or advances to employees, consultants, officers or directors in the ordinary course of business of the Company or any of its Restricted Subsidiaries (including for travel, entertainment, moving or relocation) or Guarantees in connection respect thereof or otherwise made on their behalf (including payment on any such Guarantees) made in compliance with an offering applicable law but in any event not to exceed $15.0 million in the aggregate outstanding (without giving effect to the forgiveness of any such Indebtedness loan) at any one time with respect to all loans or advances made since the Issue Date;
(4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company, a Restricted Subsidiary and/or a Special Purpose Licensed Entity and/or a Receivables Subsidiary, as the case may be, in accordance with Sections 4.10 and 4.13;
(5) the payment of reasonable and customary fees to directors, and indemnity provided on behalf of directors, officers, employees or consultants, of the Company or any of its Subsidiaries;
(6) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a market transaction and on terms substantially identical to those party as of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are not, in the good faith judgment of the Company’s Board of Directors or thereafter Senior Management, materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the Issue Date;
(7) transactions entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness (including, without limitation, management contracts and payments pursuant to management contracts) with any Person (ivincluding, without limitation, any joint venture, limited or general partnership, limited liability company or similar business entity) the payment that owns or has any rights to use property or assets used or useful in a Permitted Business;
(8) sales of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company Receivables, or participations therein, in connection with any Restricted Subsidiary, Qualified Receivables Transaction; and
(v9) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or relating to any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timecash pooling arrangement.
Appears in 2 contracts
Samples: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company other than a Wholly Owned Subsidiary (an “"Affiliate Transaction”") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’s-arm's- length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 2.5 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are and by a majority of the disinterested with respect members of such Board of Directors, if any (and such majority or majorities, as the case may be, determine(s) that such Affiliate Transaction satisfies the criteria in clause (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $10.0 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair to the Company or such transactionSubsidiary, as the case may be, from a financial point of view.
(b) The provisions of Section 4.7(a) shall not prohibit (i) any Restricted Payment permitted to be made pursuant to Section 4.4, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale to an Affiliate funding of, employment arrangements, stock options and stock ownership plans approved by the Board of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionDirectors, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business of the Company or any of its Subsidiaries, (iv) any transaction between Wholly Owned Subsidiaries, (v) the payment of fees and approved indemnities to directors, officers and employees of the Company and its Subsidiaries in the ordinary course of business, (vi) transactions pursuant to agreements as in existence on the Issue Date, (vii) any employment agreements entered into by the Company’s Board Company or any of Directors its Subsidiaries in an aggregate principal amount not the ordinary course of business, (viii) the issuance of Capital Stock of the Company (other than Disqualified Stock) and (ix) any obligation of the Company pursuant to exceed $2.5 million outstanding at any one timethe Monitoring and Oversight Agreement.
Appears in 2 contracts
Samples: Indenture (Wire Harness Industries Inc), Indenture (International Wire Group Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1i) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2ii) if such Affiliate Transaction involves an amount in excess of $15.0 million1,000,000, (1) are set forth in writing and (2) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3iii) if such Affiliate Transaction involves an amount in excess of $25.0 million5,000,000, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of hydrocarbons securities, or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of or its Restricted Subsidiaries, but in any event not to exceed $1,000,000 in the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Wholly Owned Subsidiary or any of its Restricted between Wholly Owned Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions issuance or sale of Section 4.05; and any Capital Stock (viiiother than Disqualified Stock) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.
Appears in 2 contracts
Samples: Indenture (Northeast Optic Network Inc), Indenture (Northeast Optic Network Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above). The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 4.12;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale funding of, employment agreements and other compensation arrangements, options to an Affiliate of the Company of purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, stock purchase, ownership or option plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans provided on behalf of directors, officers, consultants and the sale to an Affiliate employees of the Company and its subsidiaries, in each case, as approved by the Board of Indebtedness (including Disqualified Stock) Directors of the Company Company;
(3) loans or advances to employees, consultants, officers or directors in connection with an offering the ordinary course of such Indebtedness in a market transaction and on terms substantially identical to those business of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries (including for travel, entertainment, moving or relocation) or Guarantees in respect thereof or otherwise made on their behalf (including payment on any such Guarantees) made in compliance with applicable law but in any event not to exceed $10.0 million in the ordinary course aggregate outstanding (without giving effect to the forgiveness of businessany such loan) at any one time with respect to all loans or advances made since the Issue Date;
(4) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company, a Restricted Subsidiary and/or a Special Purpose Licensed Entity, as the case may be, in accordance with Sections 4.10 and 4.13;
(iv5) the payment of reasonable and customary fees to directors of the Company directors, and its Restricted Subsidiaries who are not indemnity provided on behalf of, directors, officers, employees or consultants, of the Company or any Restricted Subsidiary, of its subsidiaries; and
(v6) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between performance of obligations of the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in under the definition terms of “Affiliate”) by any agreement to which the Company (an “Unrestricted Affiliate”)or any of its Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided provided, however, that no other Person any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that controls (its terms are not more materially disadvantageous, taken as so defined) or is under common control with a whole, to the Company holds any Investments Holders of the Notes than the terms of the agreements in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by effect on the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeIssue Date.
Appears in 2 contracts
Samples: Indenture (Davita Inc), Indenture (Davita Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless (1) the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2) if such Affiliate Transaction involves an amount in excess of $15.0 1.0 million but less than $5.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority an officer of the members of the Board of Directors having no personal stake in Company certifies that such Affiliate TransactionTransaction complies with clause (1) of this paragraph, and evidenced by an Officer's Certificate delivered to the Trustee; (3) if such Affiliate Transaction involves an amount equal to or in excess of $25.0 5.0 million but less than $20.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transactions have been 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 nationally recognized Board of Directors resolution; and (4) if such Affiliate Transaction involves an amount equal to or in excess of $20.0 million, the Board of Directors shall also have received a written opinion from an investment banking or accounting firm or other qualified independent appraiser of national prominence that is not an Affiliate of the Company to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.16(a) shall not prohibit (i1) any sale of hydrocarbons Investment or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the CompanyRestricted Payment, in each casecase permitted to be made pursuant to Section 4.14; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (3) loans or advances to officers, directors or employees in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate business of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, Subsidiaries; (iv4) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries; (5) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (v6) transactions between the issuance or among sale of any Capital Stock (other than Disqualified Stock) of the Company; (7) indemnities of officers, directors or employees of the Company or any Subsidiary consistent with such Person's charter, bylaws and its Restricted Subsidiaries, applicable statutory provisions; (vi) transactions between 8) any severance or employment agreement entered into by the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business business; and approved by (9) any transaction or series of transactions pursuant to any agreement or obligation of the Company’s Board Company or any of Directors its Restricted Subsidiaries in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeeffect on the Issue Date.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Pioneer Natural Resources Co), Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary to, Subsidiaries to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate value in excess of U.S.$5 million, unless:
(i) the terms thereof (1) of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2ii) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 millionU.S.$10 million (or the equivalent in other currencies), are set forth in writing and the terms of such transaction have been approved by either the Company’s shareholders or its Board of Directors, including a majority .
(b) The foregoing paragraphs do not apply to:
(i) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries of the members Company, or, in any case, any entity that becomes a Restricted Subsidiary as a result of such transaction;
(ii) the payment of reasonable and customary fees to directors of the Board Company who are not employees of Directors having no personal stake the Company;
(iii) any Restricted Payments permitted under Section 3.15;
(iv) transactions or payments pursuant to any employee, officer or manager compensation or benefit plans or any employment, consulting, service or termination agreements, other benefit-related arrangements or similar arrangements entered into in such Affiliate Transactionthe ordinary course of business and the payment of compensation to officers, managers and employees of the Company or any Restricted Subsidiary in respect thereof;
(3v) if such Affiliate Transaction involves an amount transactions pursuant to any contract or agreement in excess of $25.0 millioneffect on the Issue Date, have been determined by as amended, modified or replaced from time to time so long as the amended, modified or new agreements, taken as a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fairwhole, from a financial standpoint, are not materially less favorable to the Company and its Restricted Subsidiaries.Subsidiaries than the contract or agreement being amended, modified or replaced;
(bvi) The provisions of Section 4.08(a) shall not prohibit transactions with (i) any sale customers, clients, distributors, lessors, suppliers or purchasers or sellers of hydrocarbons goods or services or (ii) joint ventures or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Companysimilar arrangements, in each case, in the ordinary course of business, so long as the terms of business and on market terms; and
(vii) any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the issuance or sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute (other than Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.
Appears in 2 contracts
Limitation on Affiliate Transactions. (a) The Company From and after the Spin-Off Date, the Issuer shall not, and shall not permit any Restricted Subsidiary to, to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company Issuer (an “Affiliate Transaction”) unless involving value in excess of the terms thereof greater of (i) $25.0 million and (ii) 5.0% of LTM EBITDA unless:
(1) the terms of such Affiliate Transaction, taken as a whole, are no not materially less favorable to the Company Issuer or such Restricted Subsidiary Subsidiary, as applicable, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 million, are set forth in writing and have been approved by the Board greater of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale $75.0 million and (ii) 15.0% of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging ContractsLTM EBITDA, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested of the Issuer. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.08(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors of the Issuer, if any.
(b) The provisions of Section 3.08(a) above shall not apply to:
(1) any Restricted Payment or other transaction permitted to be made or undertaken pursuant to Section 3.03 (including Permitted Payments) or any Permitted Investment;
(2) any issuance, transfer or sale of (a) Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise to any Parent Entity or future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer or any of its Subsidiaries or any of its Parent Entities and (b) directors’ qualifying shares and shares issued to foreign nationals as required under applicable law;
(3) any Management Advances and any waiver or transaction with respect to thereto;
(4) (a) any transaction between or among the Issuer and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (iib) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the sale to an Affiliate of the Company of Capital Stock of the Company that does Issuer and such merger, amalgamation or consolidation is otherwise not constitute Disqualified Stockprohibited under this Indenture;
(5) the payment of compensation, fees, costs, reimbursements and expenses to, and the sale to an Affiliate of the Company of Indebtedness indemnities (including Disqualified Stockunder insurance policies) and reimbursements, employment and severance arrangements, and employee benefit and pension expenses provided on behalf of, or for the benefit of, future, current or former employees, directors, officers, managers, contractors, consultants, distributors or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company in connection with an offering Issuer, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through their Controlled Investment Affiliates or Immediate Family Members);
(6) the entry into and performance of such Indebtedness in a market transaction and on terms substantially identical to those obligations of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company Issuer or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Spin-Off Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.08 or to the extent not disadvantageous in any material respect in the reasonable determination of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Spin-Off Date;
(7) any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practice, (iv) which are fair to the payment of Issuer or its Restricted Subsidiaries, in the reasonable fees to directors determination of the Company and its Restricted Subsidiaries who Issuer, or are on terms, taken as a whole, that are not employees of the Company or materially less favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) any Restricted Subsidiary, (v) transactions transaction between or among the Company Issuer or any Restricted Subsidiary (or any entity that becomes a Restricted Subsidiary as a result of such transaction) or joint venture (regardless of the form of legal entity) in which the Issuer or any Subsidiary has invested (and its Restricted Subsidiarieswhich Subsidiary or joint venture would not be an Affiliate of the Issuer but for the Issuer’s or a Subsidiary’s ownership of Equity Interests in such joint venture or Subsidiary);
(10) any issuance, sale or transfer of Capital Stock (viother than Disqualified Stock or Designated Preferred Stock) transactions between of the Company Issuer, any Parent Entity or any of its Restricted Subsidiaries or options, warrants or other rights to acquire such Capital Stock and Persons the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Issuer or any Restricted Subsidiary;
(11) [reserved];
(12) [reserved];
(13) the Transactions and the payment of all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related to the Transactions, including Transaction Costs;
(14) transactions in which the Issuer or any Restricted Subsidiary, as applicable, delivers to the Trustee a letter from an Independent Financial Advisor stating that are controlled such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.08(a)(1);
(as defined in 15) the definition of “Affiliate”) existence of, or the performance by the Company Issuer or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (an “Unrestricted Affiliate”)including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Spin-Off Date and any similar agreement that it (or any Parent Entity) may enter into thereafter; provided that no the existence of, or the performance by the Issuer or any Restricted Subsidiary (or any Parent Entity) of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Spin-Off Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise, when taken as a whole, more disadvantageous to the Holders in any material respect in the reasonable determination of the Issuer than those in effect on the Spin-Off Date;
(16) any purchases by Affiliates of the Issuer of Indebtedness or Disqualified Stock of the Issuer or any of the Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not Affiliates of the Issuer; provided that such purchases by Affiliates of the Issuer are on the same terms as such purchases by such Persons who are not Affiliates of the Issuer;
(17) (i) investments by Affiliates in securities or loans of the Issuer or any of its Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Issuer or such Restricted Subsidiary generally to other Person that controls non-affiliated third party investors on the same or more favorable terms and (as so definedii) payments to Affiliates in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (i) or is under common control that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the Company holds terms of such securities or loans;
(18) payments by any Investments Parent Entity, the Issuer or its Subsidiaries pursuant to any tax sharing agreements or other agreements in respect of Permitted Tax Amounts among any such Parent Entity, the Issuer and/or its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Issuer and its Subsidiaries;
(19) payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Issuer 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 (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any of its 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 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 (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Issuer in good faith;
(20) 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 or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement between the Issuer or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable determination of the Issuer or entered into in connection with the Transactions;
(21) 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 3.05 or entered into with any Business Successor, in each case, that the Issuer determines in good faith is either fair to the Issuer or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(22) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Affiliate; Subsidiary is redesignated as a Restricted Subsidiary as described in Section 3.20 and pledges of Capital Stock of Unrestricted Subsidiaries;
(vii23) (i) any lease entered into between the Issuer or any Restricted Payments that are permitted Subsidiary, as lessee, and any Affiliate of the Issuer, as lessor and (ii) any operational services or other arrangement entered into between the Issuer or any Restricted Subsidiary and any Affiliate of the Issuer, in each case, which is approved by the provisions reasonable determination of Section 4.05; the Issuer;
(24) intellectual property licenses and (viii) loans or advances to employees research and development agreements in the ordinary course of business or consistent with past practice;
(25) payments to or from, and approved transactions with, any Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements or activities related thereto);
(26) the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant to equityholders, investor rights, registration rights or similar agreements;
(27) transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(28) Permitted Intercompany Activities, Permitted Tax Restructurings, Intercompany License Agreements and related transactions. In addition, if the Issuer or any of its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the purchase or acquisition by an Affiliate of the Issuer 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’s Board Issuer or such Restricted Subsidiary to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of Directors assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an Affiliate of the Issuer of an interest in all or a portion of the assets or properties sold shall not be deemed an aggregate principal amount not Affiliate Transaction (or cause such sale or other disposition by the Issuer or such Restricted Subsidiary to exceed $2.5 million outstanding at any one timebe deemed an Affiliate Transaction).
Appears in 2 contracts
Samples: Indenture (Embecta Corp.), Indenture (Embecta Corp.)
Limitation on Affiliate Transactions. (a) The ------------------------------------ Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless (1) the terms thereof (1) are no less favorable to ---------------------- the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2) if such Affiliate Transaction involves an amount in excess of $15.0 2.5 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, ; and (3) if such Affiliate Transaction involves an amount in excess of $25.0 10.0 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate be made pursuant to Section 4.04; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors; (3) loans or advances to employees or consultants in the ordinary course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the entering into aggregate outstanding at any one time; (4) the payment of reasonable fees and compensation to, or performance the pro- vision of Oil employee benefit arrangements and Gas Hedging Contractsindemnity for the benefit of, gas gatheringdirectors, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate officers, employees and consultants of the Company, in each case, Company and its Restricted Subsidiaries in the ordinary course of business; (5) any transaction between or among the Company, so long as any Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the terms Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (6) the issuance or sale of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including other than Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany; (7) the existence of, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into performance by the Company or any of its Restricted Subsidiaries in of its obligations under the ordinary course terms of business, any stockholders agreement (ivincluding any registration rights agreement or purchase agreement related thereto) the payment of reasonable fees or warrant agreement to directors which it is a party as of the Company Issue Date and its Restricted Subsidiaries who are not employees of any similar agreements which it may enter into thereafter; provided, however, -------- ------- that the Company existence of, or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between 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 disadvantageous to the Holders in any material respect; (8) the payment of fees and Persons that are controlled (as defined in the definition of “Affiliate”) other expenses to be paid by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control any of its Subsidiaries in connection with the Company holds any Investments in such Unrestricted AffiliateMerger; (vii9) any agreement as in effect on the Issue Date and described in the Offering Circular or any renewals, extensions or amendments of any such agreement (so long as such renewals, extensions or amendments are not less favorable to the Company or the Restricted Payments that are permitted by Subsidiaries)and the provisions of Section 4.05transactions evidenced thereby; and (viii10) loans transactions with customers, clients, suppliers or advances to employees purchasers or sellers of goods or services in each case in the ordinary course of business and approved by otherwise in compliance with the Company’s terms of the applicable Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors in 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 aggregate principal amount not to exceed $2.5 million outstanding at any one timeunaffiliated party.
Appears in 2 contracts
Samples: Indenture (Fs Equity Partners Iii Lp), Indenture (Blum Capital Partners Lp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 1 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $5 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate.
(b) The foregoing paragraph (a) shall not apply to (i) any Restricted Payment permitted to be made pursuant to Section 3.5 of this Indenture, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale to an Affiliate funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved of the Company or any of its Restricted Subsidiaries, (iv) the fees payable by the Company’s Board of Directors Company in an aggregate principal amount not to exceed $2.5 million outstanding at connection with the Recapitalization, or (v) any one time.transaction between the Company and a Wholly-Owned Subsidiary or between Wholly-Owned Subsidiaries. 54 48
Appears in 2 contracts
Samples: Indenture (Nebraska Book Co), Indenture (NBC Acquisition Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate value in excess of $5.0 million unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect Directors. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in Section 3.8(a)(2) if such transaction, (ii) the sale to an Affiliate Transaction is approved by a majority of the Company Disinterested Directors, if any.
(b) The provisions of Section 3.8(a) shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment;
(2) any issuance or sale of Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business;
(3) any Management Advances and any waiver or transaction with respect thereto;
(4) any transaction between or among the Company and any Restricted Subsidiary (or an entity that does not constitute Disqualified Stockbecomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries;
(5) the payment of compensation, reasonable fees and reimbursement of expenses to, and the sale to an Affiliate customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees of the Company of Indebtedness (including Disqualified Stock) or any Restricted Subsidiary of the Company in connection with an offering (whether directly or indirectly and including through any Person owned or controlled by any of such Indebtedness in a market transaction directors, officers or employees);
(6) the entry into and on terms substantially identical to those performance of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by obligations of the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or to the extent not more disadvantageous to the Holders in any material respect;
(7) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business, (iv) which are fair to the payment Company or the relevant Restricted Subsidiary in the reasonable determination of reasonable fees to directors the Board of Directors or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(8) any transaction between or among the Company or any Restricted Subsidiary, on the one hand, and its any Affiliate of the Company (other than a Restricted Subsidiaries who are not employees Subsidiary), on the other hand, that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Affiliate;
(9) issuances or sales of Capital Stock of the Company or options (in each case, other than Disqualified Stock or Designated Preferred Stock), warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(10) without duplication in respect of payments made pursuant to clause (11) hereof, (vi) transactions payments by the Company or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly) of annual customary management, consulting, monitoring or advisory fees and related expenses in accordance with the Financial Advisory Agreement between the Company and Avista as in effect on the Issue Date (or among any amendment thereto (so long as any such amendment is not materially disadvantageous, in the good faith judgment of the Board of Directors of the Company, to the Holders when taken as a whole as compared to such Financial Advisory Agreement in effect on the Issue Date) and (ii) customary payments by the Company or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly, including through any Parent) for 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 in good faith;
(11) payment to any Permitted Holder of all reasonable out of pocket expenses Incurred by such Permitted Holder in connection with its direct or indirect investment in the Company and its Restricted Subsidiaries, ;
(vi12) the Transactions and the payment of all fees and expenses related to the Transactions;
(13) transactions between 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 Section 3.8(a)(1);
(14) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause (14) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respects;
(15) any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries and the majority of which Indebtedness or Disqualified Stock is purchased by Persons that who are controlled (as defined in not the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”)Company’s Affiliates; provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved purchases by the Company’s Board of Directors Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates; and
(16) transactions in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeconnection with a Permitted Distribution.
Appears in 2 contracts
Samples: Indenture (Valley Telephone Co., LLC), Indenture (Valley Telephone Co., LLC)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, enter into into, renew or permit to exist extend any transaction (or arrangement, including the purchase, sale, lease or exchange of any propertyproperty or assets, employee compensation arrangements or the rendering of any service) , with any Affiliate of the Company or any Restricted Subsidiary (an a “Affiliate Related Party Transaction”) unless the ), except upon fair and reasonable terms thereof (1) are no less favorable favorable, taken as a whole, to the Company or such the Restricted Subsidiary than those that could be obtained at the time of such transaction in a comparable arm’s-length dealings transaction with a Person who that is not such an Affiliate, Affiliate of the Company.
(2b) if such Affiliate Any Related Party Transaction involves or series of Related Party Transactions with an amount aggregate value in excess of $15.0 million, are set forth in writing and have been 50,000,000 must first be approved by the Board of Directors, including a majority of the Board of Directors of the Company who are disinterested in the subject matter of the transaction pursuant to a Board Resolution, unless there are no members of the Board of Directors having no personal stake of the Company that are disinterested in the subject matter of the transaction, in which case such Affiliate Transactiontransaction must be approved by a majority of the Board of Directors of the Company.
(c) The foregoing paragraphs do not apply to
(i) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries of the Company;
(ii) the payment of reasonable and customary regular fees to, and the reimbursement of expenses of, directors of the Company who are not employees of the Company;
(3iii) if such Affiliate Transaction involves an amount in excess any Restricted Payments of $25.0 milliona type permitted under Section 4.07(a);
(iv) transactions or payments pursuant to any employee, have been determined by a nationally recognized investment banking officer or accounting firm director compensation, benefit plans, collective bargaining agreement or other qualified independent appraiser similar arrangements (including vacation, health, insurance, deferred compensation, retirement, savings, severance, change of control payments and incentive arrangements or other similar plans) entered into in the ordinary course of business;
(v) transactions entered into as part of a Permitted Receivables Financing;
(vi) transactions pursuant to be fairany contract or agreement in effect on the date of this Indenture, as amended, modified or replaced from time to time so long as the amended, modified or new agreements, taken as a financial standpointwhole, are not materially less favorable to the Company and its Restricted Subsidiaries.Subsidiaries than those in effect on the date of this Indenture;
(bvii) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons indemnification or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness similar arrangements (including Disqualified Stockdirector and officer liability insurance) for officers, directors, employees or agents of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businesspursuant to charter, bylaw, contractual or statutory provisions;
(ivviii) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that any Affiliate of the Company the Equity Interests of which Affiliate are controlled (as defined in the definition of “Affiliate”) owned solely by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with one of its Restricted Subsidiaries, on the one hand, and by persons who are not Affiliates of the Company holds any Investments in such Unrestricted Affiliate; or Restricted Subsidiaries, on the other hand;
(vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiix) loans or and advances to directors, employees or officers made in the ordinary course of business in compliance with applicable laws, provided that such loans and approved by advances do not exceed $25,000,000 in the aggregate at any one time outstanding;
(x) transactions with persons who are Affiliates of the Company solely as a result of the Company’s Board or a Restricted Subsidiary’s Investment in such Person;
(xi) any transactions as to which the Company has obtained a favorable written opinion from a nationally recognized investment banking firm as to the fairness of Directors in an aggregate principal amount not the transaction to exceed $2.5 million outstanding at the Company and its Restricted Subsidiaries from a financial point of view; and
(xii) any one timeSpecified Transaction.
Appears in 2 contracts
Samples: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Limitation on Affiliate Transactions. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company or a Permitted Affiliate Parent (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of €50.0 million for such Affiliate Transactions in any fiscal year, unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable favorable, taken as a whole, to the Company Company, such Permitted Affiliate Parent or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate (or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company, such Permitted Affiliate Parent or such Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company, such Permitted Affiliate Parent or such Restricted Subsidiary has conclusively determined in good faith to be fair to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary); and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 €100.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including either (i) a majority of the members of the Board of Directors having no personal stake in or (ii) senior management of the Company, such Permitted Affiliate TransactionParent, and (3) if or such Affiliate Transaction involves an amount in excess of $25.0 millionRestricted Subsidiary, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesas applicable.
(b) The provisions of Section 4.08(a4.11(a) shall will not prohibit apply to:
(i1) any Restricted Payment permitted to be made pursuant to Section 4.07 or any Permitted Investment;
(2) any issuance or sale of hydrocarbons Capital Stock, options, other equity-related interests or other mineral products to an Affiliate of the Company securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into into, or performance of Oil maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and Gas Hedging Contractsother compensation arrangements, gas gatheringoptions, transportation warrants or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate other rights to purchase Capital Stock of the Company, a Permitted Affiliate Parent, any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultant plans (including, without limitation, valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) and/or indemnities provided on behalf of officers, employees or directors or consultants, in each case, case in the ordinary course of business;
(3) loans or advances to employees, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement officers or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, (iv) the payment of reasonable fees to directors business of the Company and its Restricted Subsidiaries who are not employees of the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary, Subsidiary but in any event not to exceed €10.0 million in the aggregate amount outstanding at any one time with respect to all loans or advances made since the 2017 Amendment Effective Date;
(v4) transactions (A) any transaction between or among the Company Company, a Permitted Affiliate Parent and its a Restricted Subsidiaries, Subsidiary (vior an entity that becomes a Restricted Subsidiary in connection with such transaction) transactions or between the Company or any of its among Restricted Subsidiaries and Persons (or an entity that are controlled (as defined becomes a Restricted Subsidiary in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”connection with such transaction); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiB) loans any guarantees issued by the Company, a Permitted Affiliate Parent or advances to employees a Restricted Subsidiary for the benefit of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary (or an entity that becomes a Restricted Subsidiary in connection with such transaction), as the case may be, in accordance with Section 4.09;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and approved otherwise in compliance with the terms of this Agreement, which, taken as a whole, are fair to the Company, the relevant Permitted Affiliate Parent or Restricted Subsidiary, as applicable, or are on terms not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(6) loans or advances to any Affiliate of the Company or a Permitted Affiliate Parent by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, provided that the terms of such loan or advance are fair to the Company or the relevant Permitted Affiliate Parent or Restricted Subsidiary, as the case may be, or are on terms not materially less favorable than those that could reasonably have been obtained from an unaffiliated party;
(7) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors, executives or officers of any Parent, the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(8) the performance of obligations of the Company, any Permitted Affiliate Parent, or any of the Restricted Subsidiaries under (A) the terms of any agreement to which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries is a party as of or on the 2017 Amendment Effective Date or (B) any agreement entered into after the 2017 Amendment Effective Date on substantially similar terms to an agreement under Section 4.11(b)(8)(A), in each case, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any such agreement or amendment, modification, supplement, extension or renewal to such agreement, in each case, entered into after the 2017 Amendment Effective Date will be permitted to the extent that its terms are not materially more disadvantageous to the Finance Parties than the terms of the agreements in effect on the 2017 Amendment Effective Date;
(9) any transaction with (i) a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations or (ii) with an Affiliate in respect of Non-Recourse Indebtedness;
(10) the issuance of Capital Stock or any options, warrants or other rights to acquire Capital Stock (other than Disqualified Stock) of the Company or a Permitted Affiliate Parent to any Affiliate of the Company or such Permitted Affiliate Parent;
(11) the payment to any Permitted Holder of all reasonable expenses Incurred by any Permitted Holder in connection with its direct or indirect investment in the Company, a Permitted Affiliate Parent and their Subsidiaries and unpaid amounts accrued for prior periods;
(12) the payment to any Parent or Permitted Holder (1) of Management Fees (A) on a bona fide arm’s-length basis in the ordinary course of business or (B) of up to the greater of €15.0 million and 0.5% of Total Assets in any calendar year, (2) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including without limitation in connection with loans, capital market transactions, hedging and other derivative transactions, acquisitions or divestitures or (3) of Parent Expenses;
(13) guarantees of Indebtedness, hedging and other derivative transactions and other obligations not otherwise prohibited under this Agreement;
(14) if not otherwise prohibited under this Agreement, the issuance of Capital Stock (other than Disqualified Stock) or Subordinated Shareholder Loans (including the payment of cash interest thereon; provided that, after giving pro forma effect to any such cash interest payment, the Consolidated Net Leverage Ratio would not exceed 4.00 to 1.00) of the Company or a Permitted Affiliate Parent to any Parent of the Company or a Permitted Affiliate Parent or any Permitted Holder;
(15) arrangements with customers, clients, suppliers, contractors, lessors or sellers of goods or services that are negotiated with an Affiliate, in each case, which are otherwise in compliance with the terms of this Agreement; provided that the terms and conditions of any such transaction or agreement as applicable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries, taken as a whole are fair to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries and are on terms not materially less favorable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries than those that could have reasonably been obtained in respect of an analogous transaction or agreement that would not constitute an Affiliate Transaction;
(16) (A) transactions with Affiliates in their capacity as holders of indebtedness or Capital Stock of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness or Capital Stock generally, and (B) transactions with Affiliates in their capacity as borrowers of indebtedness from the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness generally;
(17) any tax sharing agreement or arrangement and payments pursuant thereto between or among the Ultimate Parent, the Company, a Permitted Affiliate Parent or any other Person or a Restricted Subsidiary not otherwise prohibited by this Agreement and any payments or other transactions pursuant to a tax sharing agreement between the Company, a Permitted Affiliate Parent and any other Person or a Restricted Subsidiary and any other Person with which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries files a Consolidated tax return or with which the Company, a Permitted Affiliate Parent or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation;
(18) transactions relating to the provision of Intra-Group Services in the ordinary course of business;
(19) any transaction reasonably necessary to effect the Unitymedia Management Merger, the Post-Closing Reorganization and/or Spin-Off;
(20) any transaction in the ordinary course of business between or among the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and any Affiliate of the Company or a Permitted Affiliate Parent that is an Unrestricted Subsidiary or a joint venture or similar entity that would constitute an Affiliate Transaction solely because the Company, a Permitted Affiliate Parent or a Restricted Subsidiary owns an equity interest in or otherwise controls such Unrestricted Subsidiary, joint venture or similar entity;
(21) commercial contracts entered into in the ordinary course of business between an Affiliate of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and the Company, a Permitted Affiliate Parent or any Restricted Subsidiary that are on arm’s Board length terms or on a basis that senior management of Directors the Company, a Permitted Affiliate Parent or a Restricted Subsidiary reasonably believes allocates costs fairly;
(22) transactions between any Restricted Subsidiary and the Common Holding Company or any Parent and/or their Subsidiaries, in an aggregate principal amount not each case, to exceed $2.5 million outstanding at effect or facilitate the transfer of any one timeproperty or asset from the Company, any Permitted Affiliate Parent and/or any Restricted Subsidiary to another Restricted Subsidiary, any Permitted Affiliate Parent and/or the Company, as applicable; and (23) any Permitted Financing Action.
Appears in 2 contracts
Samples: Super Senior Facilities Agreement (Liberty Global PLC), Senior Facilities Agreement (Liberty Global PLC)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; and
(2) if such Affiliate Transaction involves an amount in excess of $15.0 2.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and ; and
(3) if such Affiliate Transaction involves an amount in excess of $25.0 7.5 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction (i) is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or (ii) is not less favorable to the Company and its 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.
(b) The provisions of Section 4.08(athe preceding paragraph (a) shall will not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the CompanyRestricted Payment, in each casecase permitted to be made pursuant to Section 4.04;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors;
(3) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, ;
(ii4) the sale to an Affiliate payment of the Company reasonable and customary directors’ fees, indemnification and similar arrangements, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries Subsidiary entered into in the ordinary course of business, ;
(iv5) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of any transaction with a Subsidiary or Permitted Joint Venture which would constitute an Affiliate Transaction solely because the Company or any Restricted a Subsidiary owns an equity interest in or otherwise controls such Subsidiary, or Permitted Joint Venture;
(v6) transactions between the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company;
(7) any agreement as in effect as of the Issue Date and set forth on Schedule 4.07(b)(7) or any amendment to any such agreement (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; and
(8) payments with respect to, or amendments, modifications, waivers or refinancing of, (i) this Indenture (or any certificate or document executed and delivered in connection herewith), (ii) the Stockholders Agreement, dated as of the date hereof, among the Company and its Restricted Subsidiaries, (vi) transactions between each of the stockholders of the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; party thereto and (viiiiii) loans the certificate of incorporation or advances to employees in the ordinary course bylaws of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.
Appears in 2 contracts
Samples: Indenture (Wolverine Tube Inc), Indenture (Wt Holding Company, Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company 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 permit to exist make or amend any transaction (including transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company Company, in each case, in excess of US$25.0 million (an “Affiliate Transaction”) unless unless:
(i) the terms thereof (1) of the Affiliate Transaction are no not less favorable in any material respect to the Company or such Restricted Subsidiary than those that could reasonably be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who that is not such an Affiliate, ; and
(2ii) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $15.0 US$100.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal financial stake in such transaction, if any (and such majority or majorities of the Board of Directors, as the case may be, determines that such Affiliate Transaction satisfies the criteria in Section 4.13(a)(i) above), as evidenced by a resolution of the Board of Directors of the Company.
(b) The foregoing restrictions shall not apply to:
(i) any Restricted Payment made pursuant to Section 4.09 and any Permitted Investment;
(ii) any transaction among only the sale to an Affiliate Company and/or any Restricted Subsidiary or Restricted Subsidiaries of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, Company;
(iii) transactions contemplated by any employment agreement issuance of securities or other compensation plan payments, awards or arrangement existing on grants in cash, securities or otherwise pursuant to, or the Issue Date funding of, employment arrangements, stock options and stock ownership plans and other fair and reasonable compensation, benefits and indemnities paid or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness by the Company or its Restricted Subsidiaries to or with officers, (iv) the payment of reasonable fees to directors or employees of the Company and its Restricted Subsidiaries, in their capacity as such, approved by the Board of Directors of the Company;
(iv) loans or advances to officers, directors, consultants or employees of the Company, any of its Restricted Subsidiaries who or any direct or indirect parent entity of the Company, or guarantees in respect thereof, made on its behalf or their behalf (or the cancellation of such loans, advances or guarantees) in the ordinary course of business and employment agreements, stock option plans and other similar arrangements with such officers, directors, consultants or employees which, in each case, are approved by the Company in good faith; provided that such loans or advances do not exceed US$25.0 million outstanding at any one time;
(v) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and on market terms;
(vi) the issuance or sale of any Capital Stock (other than Disqualified Capital Stock) of, and any contribution of capital to, the Company;
(vii) any transaction with a Person (other than an Unrestricted Subsidiary) that is an Affiliate solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(viii) any transaction on arm’s-length terms with any Person that is not an Affiliate prior to such transaction but becomes an Affiliate as a result of such transaction;
(ix) any agreement as in effect on the Issue Date and described in the Offering Memorandum, and any renewals, amendments or extensions of any such agreement (so long as such renewals, amendments or extensions are not employees materially less favorable, taken as a whole, to the Company and its Restricted Subsidiaries) and the transactions evidenced thereby;
(x) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(xi) sales of livestock in the ordinary course of business and on arm’s length terms, as determined in good faith by the senior management of the Company;
(xii) transactions under the Australian Cattle Inventory Arrangements as in effect on the Issue Date, and any renewals, amendments or extensions of any such agreement (so long as such renewals, amendments or extensions are not materially less favorable, taken as a whole, to the Company and its Restricted Subsidiaries) and the transactions evidenced thereby;
(xiii) any transaction entered into by the Company with JBS S.A. or any of its Affiliates in the ordinary course of business or permitted pursuant to clause (21) of the definition of “Permitted Debt”; and
(xiv) any Affiliate Transaction with a Person in its capacity as a holder of Debt or Capital Stock of the Company or any Restricted Subsidiary where such Person is treated no more favorably than the other holders of Debt or Capital Stock of the Company or any Restricted Subsidiary.
(c) For the avoidance of doubt, (v) transactions the Company shall not be prohibited by this Section 4.13 from maintaining arrangements with or among its Affiliates to share the benefits of economies of scale or other similar benefits in an equitable manner between or among the Company and and/or its Restricted SubsidiariesAffiliates, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) reasonably determined by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in and such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeAffiliates.
Appears in 2 contracts
Samples: Indenture (JBS Holding Luxembourg S.A R.L.), Indenture (JBS Holding Luxembourg S.A R.L.)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or permit to exist any transaction (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate (each of the Company (foregoing, an “"Affiliate Transaction”) unless the terms thereof "), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Company or such the relevant Restricted Subsidiary than those that could be would have been obtained at in a comparable transaction by the time of Company or such transaction in arm’s-length dealings Restricted Subsidiary with a Person who is not such an Affiliate, unrelated Person; and
(2) if such the Company delivers to the Trustee (i) with respect to any Affiliate Transaction involves an amount involving aggregate payments in excess of $15.0 2.0 million, are a Board Resolution set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if an Officers' Certificate certifying that such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company complies with clause (1) above and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an such Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are Transaction is approved by a majority of the members of the Board of Directors who are disinterested and by a majority of the members of such Board having no personal stake in such transaction and (ii) with respect to any Affiliate Transaction involving aggregate payments in excess of $10.0 million, an opinion as to the fairness to the Company or such transactionRestricted Subsidiary from a financial point of view issued by an investment banking firm of national standing; provided, however, that each of the following shall not be deemed Affiliate Transactions:
(ii1) any employment, stock option, stock purchase or stock grant agreement entered into by the sale to an Affiliate Company or any of its Restricted Subsidiaries with directors, officers and employees 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;
(3) transactions permitted by the provisions of Capital Stock this Indenture described in Section 3.3 or pursuant to clause (4) or (5) of the definition of "Permitted Investments;"
(4) the payment of compensation, and indemnity provided on behalf of, directors or employees of the Company that does not constitute Disqualified Stock, or any Restricted Subsidiary in the ordinary course of business;
(5) loans and the sale advances to an Affiliate officers and employees of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees business in an amount not to directors of exceed $1.5 million at any one time outstanding; provided that the Company and its Restricted Subsidiaries who are not employees will comply in all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated in connection therewith in connection with such loans or advances;
(6) the issuance of Capital Stock (other than Disqualified Stock) of the Company to any Affiliate; and
(7) the provision by Persons who may be deemed Affiliates or any Restricted Subsidiary, (v) transactions between or among stockholders of the Company (other than such provision by JPMorgan Partners 23A and its Restricted SubsidiariesPersons directly or indirectly controlled by JPMorgan Partners 23A) of investment banking, (vi) transactions between commercial banking, trust, lending or financing, investment, underwriting, placement agent, financial advisory or similar services to the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in performed after the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeIssuance Date.
Appears in 2 contracts
Samples: Indenture (Portola Packaging Inc), Indenture (Portola Packaging, Inc. Mexico, S.A. De C.V.)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof involving aggregate value in excess of $12.5 million unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 50.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company Company. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.
(b) The provisions of Section 3.8(a) above shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment;
(2) any issuance or sale of Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company or any Restricted Subsidiary, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business or consistent with past practices;
(3) any transaction between or among the Company and any Restricted Subsidiary (or entity that does not constitute Disqualified Stockbecomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries;
(4) the payment of compensation, reasonable fees and reimbursement of expenses to, and the sale to an Affiliate customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, contractors, consultants, distributors or employees of the Company of Indebtedness (including Disqualified Stock) or any Restricted Subsidiary of the Company in connection with an offering (whether directly or indirectly and including through any Controlled Investment Affiliate of such Indebtedness in a market transaction directors, officers, contractors, consultants, distributors or employees);
(5) the entry into and on terms substantially identical to those performance of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by obligations of the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not more disadvantageous to the Holders in any material respect;
(6) transactions with customers, clients, joint ventures, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practices, (iv) which are fair to the payment Company or the relevant Restricted Subsidiary in the reasonable determination of reasonable fees to directors the Board of Directors or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(7) any transaction between or among the Company or any Restricted Subsidiary and its any Affiliate of the Company or an Associate or similar entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiaries who are not employees Subsidiary owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(8) issuances or sales of Capital Stock (other than Disqualified Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary, ;
(v9) transactions between or among in which the Company and its or any Restricted SubsidiariesSubsidiary, as the case may be, delivers to the Trustees 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 Section 3.8(a)(1);
(vi10) transactions between any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries and the majority of which Indebtedness or Disqualified Stock is purchased by Persons that who are controlled (as defined in not the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”)Company’s Affiliates; provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted purchases by the provisions of Section 4.05; and Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(viii11) loans or advances to employees intellectual property licenses in the ordinary course of business and approved business; and
(12) transactions entered into by an Unrestricted Subsidiary, so long as not entered in contemplation of the Company’s Board redesignation as a Restricted Subsidiary, with an Affiliate prior to the redesignation of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timesuch Unrestricted Subsidiary as a Restricted Subsidiary as described under Section 3.15.
Appears in 2 contracts
Samples: Indenture (Primo Water Corp /CN/), Indenture (Primo Water Corp /CN/)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 10.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction have been 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, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and ; and
(3) if such Affiliate Transaction involves an amount in excess of $25.0 20.0 million, the Board of Directors shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the CompanyRestricted Payment, in each casecase permitted to be made pursuant to Section 4.04;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors;
(3) loans or advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries Subsidiaries, but in any event not to exceed $1.0 million in the ordinary course of business, aggregate outstanding at any one time;
(iv4) the payment of reasonable fees and reimbursements of expenses to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries;
(5) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(v6) transactions between the issuance or among sale of any Capital Stock (other than Disqualified Stock) of the Company Company;
(7) indemnities of officers, directors and its Restricted Subsidiaries, (vi) transactions between employees of the Company or any of its Restricted Subsidiaries and Persons that are controlled permitted or required by charter, bylaw, contractual or statutory provisions; and
(as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control 8) any transaction with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances a Receivables Subsidiary pursuant to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timea Qualified Receivables Transaction.
Appears in 1 contract
Samples: Indenture (Columbus McKinnon Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with or for the benefit of any Affiliate of the Company Company, other than a Wholly-Owned Subsidiary (an “"Affiliate Transaction”") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 1.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are of the Company and by a majority of the disinterested with respect members of such Board, if any (and such majorities each determine that such Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $2.0 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair to the Company or such transactionRestricted Subsidiary, as the case may be, from a financial point of view.
(b) The foregoing paragraph (a) shall not apply to (i) any Restricted Payment permitted to be made pursuant to Section 4.07, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale to an Affiliate funding of, employment arrangements, or any stock options and stock ownership plans for the benefit of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by of the Company’s Board Company or any of Directors its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $2.5 million outstanding 250,000 to any employee or $500,000 in the aggregate at any one time, (iv) any transaction between Wholly-Owned Subsidiaries, (v) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business, (vi) transactions pursuant to agreements in existence on the Issue Date which are (x) described in the Offering Memorandum or (y) otherwise, in the aggregate, immaterial to the Company and its Restricted Subsidiaries taken as a whole, (vii) any employment, non-competition or confidentiality agreements entered into by the Company or any of its Restricted Subsidiaries with its employees in the ordinary course of business, (viii) the issuance of Capital Stock of the Company (other than Disqualified Stock), (ix) the payment of reasonable and customary fees to directors of the Company who are not employees of the Company (including, without limitation, the grant of stock options), and (x) Affiliate Transactions between either the Company or a Restricted Subsidiary and a Receivables Subsidiary involving the transfer or sale of Vacation Ownership Interests Receivable.
Appears in 1 contract
Samples: Indenture (Resort Investment LLC)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including for the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company involving aggregate consideration in excess of $40.0 million (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, when taken as a whole, than those that could be would have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at the time of such transaction in on an arm’s-length dealings basis with a Person who is not such an Affiliate, Affiliate (as determined in good faith by the Company); and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 100.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors having no personal stake of the Company and the Board of Directors of the Company shall have determined in such Affiliate Transaction, and (3) if good faith that such Affiliate Transaction involves an amount satisfies the criteria in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesclause (1) above.
(b) The provisions of Section 4.08(a4.11(a) shall not prohibit apply to:
(1) (i) any sale transaction between or among the Company and/or any of hydrocarbons its Restricted Subsidiaries (or other mineral products to an Affiliate entity that becomes a Restricted Subsidiary as a result of such transaction); or (ii) guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary in compliance with Section 4.09, as applicable;
(2) any Restricted Payments permitted by this Indenture or any Permitted Investments;
(3) any employment, consulting, service or termination agreement, or indemnification arrangement, entered into by the entering into Company or performance a Restricted Subsidiary with a future, current or former director, officer, employee, manager, consultant or independent contractor of Oil the Company or a Restricted Subsidiary (or any direct or indirect parent of the Company to the extent such agreements or arrangements are in respect of services performed for the Company or any of its Restricted Subsidiaries); the payment of compensation or expense reimbursement to any future, current or former director, officer, employee, manager, consultant or independent contractor of the Company or a Restricted Subsidiary (including amounts paid pursuant to any benefit plan or arrangement, any health, disability or similar insurance plan or any stock option, employee stock purchase or similar plans); or any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and Gas Hedging Contractsother compensation arrangements, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate options to purchase Capital Stock of the Company, subscription agreements, restricted stock plans, restricted stock unit plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of future, current or former directors, officers, employees, managers, consultants or independent contractors of the Company or a Restricted Subsidiary, in each casecase in the ordinary course of business or as otherwise approved by the Board of Directors of the Company or any direct or indirect parent of the Company;
(4) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to employees, officers, directors, managers, consultants or independent contractors for bona fide business purposes or in the ordinary course of business, in an aggregate amount not in excess of $25.0 million outstanding at any time;
(5) any agreement or arrangement as in effect as of the Issue Date (as such agreement or arrangement may be amended, modified, supplemented, extended, renewed or replaced from time to time, so long as any such amendment, modification, supplement, extension, renewal or replacement, when taken as a whole, is not materially more disadvantageous to the Holders (as determined in good faith by the Company) than the terms of the original agreement or arrangement in effect on the Issue Date) or any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, contemplated thereby;
(ii6) the sale to any agreement between any Person and an Affiliate of such Person existing at the Company of Capital Stock of the Company that does not constitute Disqualified Stocktime such Person is acquired by or merged, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection amalgamated or consolidated with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders than the applicable agreement as in effect on the date of its Restricted Subsidiaries such acquisition, merger or consolidation (as determined in good faith by the Company);
(7) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture, in each case which are fair to the Company and its Restricted Subsidiaries or are on terms that are not materially less favorable, when taken as a whole, 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 unaffiliated party (ivas determined in good faith by the Company);
(8) any transaction with a Permitted Joint Venture or Unrestricted Subsidiary that is (i) in the payment ordinary course of reasonable fees to directors business or (ii) in the best interests of the Company and its Restricted Subsidiaries who are and does not employees affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined in good faith by the Company);
(9) any joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements with respect to any Permitted Joint Venture;
(10) any transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns Capital Stock of or otherwise controls such Person; provided that no Affiliate of the Company or any of its Subsidiaries (other than the Company or a Restricted Subsidiary, ) shall have a beneficial interest or otherwise participate in such Person;
(v) transactions between or among the Company and its Restricted Subsidiaries, (vi11) transactions between the Company or any of its Restricted Subsidiaries and Persons any Person that would constitute an Affiliate Transaction solely because such Person is a director, or such Person has a director who 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 of the Company, as the case may be, on any matter involving such other Person;
(12) any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights with respect thereto;
(13) transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter or opinion 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 controlled (not materially less favorable, when taken as defined in the definition of “Affiliate”) a whole, than those that might reasonably have been obtained by the Company (or such Restricted Subsidiary in a comparable transaction at such time on an “Unrestricted Affiliate”); provided that no other arms-length basis from a Person that controls is not an Affiliate; and
(as so defined14) or is under common control with intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Company holds and the Restricted Subsidiaries and not for the purpose of circumventing any Investments covenant set forth in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timethis Indenture.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million1,000,000, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3) if such Affiliate Transaction (other than chartering contracts or contracts for the transportation of cargo not in excess of 13 months) involves an amount in excess of $25.0 million4,000,000, have been determined by a nationally recognized investment banking or accounting firm or other reasonably appropriate independent qualified independent appraiser given the size and nature of the transaction to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale Permitted Investment or Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of hydrocarbons securities, or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock ownership and other employee benefit plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of or its Restricted Subsidiaries, but in any event not to exceed $1,000,000 in the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Restricted Subsidiary or any of its between Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; Subsidiaries, (vii) Restricted Payments that are permitted by any management agreement for the provisions provision of Section 4.05; and (viii) loans Vessel agency or advances to employees management services in the ordinary course of business and approved by in line with industry standards or otherwise consistent with past practice, (viii) any Permitted Investment, non-Mortgaged Vessel sale, non-Mortgaged Vessel repurchase or other transaction in connection with a Local National Flag Arrangement in line with industry standards or otherwise consistent with past practice and (ix) any agreement as in effect on the Company’s Board Issue Date or any amendments, renewals or extensions of Directors in an aggregate principal amount any such agreement (so long as such amendments, renewals or extensions are not less favorable to exceed $2.5 million outstanding at any one timethe Securityholders than on the Issue Date).
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 5.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale to event such Affiliate Transaction involves an Affiliate aggregate consideration in excess of $10.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate. The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.3;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the sale Board of Directors;
(3) loans or advances to an Affiliate employees, officers or directors in the ordinary course of business of the Company or any of Indebtedness its Restricted Subsidiaries, in each case only as permitted by applicable law, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time with respect to all loans or advances made since the Issue Date;
(including Disqualified Stock4) any transaction between the Company and a Restricted Subsidiary (other than a Receivables Entity) or between Restricted Subsidiaries (other than a Receivables Entity or Receivables Entities);
(5) Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in connection accordance with an offering Section 3.2;
(6) the payment of such Indebtedness in a market transaction reasonable and customary compensation and fees paid to, and indemnity provided on terms substantially identical to those behalf of, officers, directors, and employees of other purchasers in such market transaction, the Company or any Restricted Subsidiary;
(iii7) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by performance of obligations of the Company or any of its Restricted Subsidiaries in under the ordinary course terms of business, (iv) the payment of reasonable fees any agreement to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and Persons identified on Schedule 3.8 to this Indenture on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue 77 Date will be permitted to the extent that its terms are controlled not more disadvantageous to the Holders of the Securities than the terms of the agreements in effect on the Issue Date; and
(as defined 8) sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in the definition an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Permitted Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeconnection with a Qualified Receivables Transaction.
Appears in 1 contract
Samples: Indenture (Imco Recycling Inc)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “"Affiliate”") by the Company (an “"Unrestricted Affiliate”"); provided that no other Person that controls (as so defined) or is under common control (as so defined) with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s 's Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time; and (ix) purchase and supply transactions with Genesis Energy, L.P. or its Affiliates in the ordinary course of business consistent with past practice.
Appears in 1 contract
Samples: Indenture (Denbury Resources Inc)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (transaction, including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) , with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such the Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained by the Company or such Restricted Subsidiary in a comparable transaction at the time of such the transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 1.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such the transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock and by a majority of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate disinterested members of the Board of Directors of the Company, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in Section 4.7(a)(1) above); and
(3) in the event the Affiliate Transaction involves aggregate consideration in excess of $5.0 million, the Company has received a written opinion from an independent accounting, appraisal, financial advisory or investment banking firm of Indebtedness national standing that such Affiliate Transaction is fair to the Company or the Restricted Subsidiary, as the case may be, from a financial point of view.
(including Disqualified Stockb) The provisions of Section 4.7(a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to the covenant described under Section 4.4 hereof (and in the case of Permitted Investments, only those described in clauses (5), (6), (9) and (10) of the Company in connection with an offering definition of such Indebtedness in a market transaction and on terms substantially identical to those Permitted Investments);
(2) the performance of other purchasers in such market transaction, (iii) transactions contemplated by the Company's or its Restricted Subsidiary's obligations under any employment contract, collective bargaining agreement, employee benefit plan, related trust agreement or any other compensation plan similar arrangement heretofore or arrangement existing on the Issue Date or thereafter hereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(iv3) the payment of reasonable fees to compensation to, and indemnity provided on behalf of, employees, officers, directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined consultants in the definition ordinary course of “Affiliate”business;
(4) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees maintenance in the ordinary course of business of benefit programs or arrangements for employees, officers or directors, including vacation plans, health and approved life insurance plans, deferred compensation plans, and retirement or savings plans and similar plans;
(5) any transaction between the Company and a Wholly Owned Restricted Subsidiary or between Wholly Owned Restricted Subsidiaries; or
(6) the provision by Persons (including J.P. Morgan Partners (BHCA), L.P. and DLJ Merchant Banking Paxxxxxx, X.X. and Persons directly or indirectly controlled by such entities) who may be deemed Affiliates or stockholders of the Company’s Board Company of Directors in an aggregate principal amount not investment banking, commercial banking, trust, lending or financing, investment, underwriting, placement agent, financial advisory or similar services, to exceed $2.5 million outstanding at any one timethe Company or its Restricted Subsidiaries, on customary terms.
Appears in 1 contract
Samples: Indenture (Doane Pet Care Co)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange 51 45 of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1i) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2ii) if such Affiliate Transaction involves an amount in excess of $15.0 1 million, (1) are set forth in writing and (2) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3iii) if such Affiliate Transaction involves an amount in excess of $25.0 7.5 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i) any sale transaction permitted pursuant to Section 4.04, or explicitly excluded from the definition of hydrocarbons "Restricted Payment", (ii) any issuance of securities, or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of or its Restricted Subsidiaries, but in any event not to exceed $1 million in the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions any Affiliate Transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries; provided, however, that no Affiliate of the Company (other than another Restricted Subsidiary) owns the Capital Stock of any such Restricted Subsidiary, (vii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company or (viii) the amendment or extension or renewal of any transaction in effect on the Issue Date on terms no less favorable to the Company and its Restricted Subsidiaries and Persons that are controlled (as defined than the terms in effect on the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeIssue Date.
Appears in 1 contract
Samples: Indenture (Phoenix Racing Inc)
Limitation on Affiliate Transactions. (a) The Company ------------------------------------- shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1i) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2ii) if such Affiliate Transaction involves an amount in excess of $15.0 1 million, (1) are set forth in writing writing, (2) comply with clause (i), and (3) have been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3iii) if such Affiliate Transaction involves an amount in excess of $25.0 5 million, (1) comply with clause (ii) and (2) have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of hydrocarbons securities, or other mineral products to an Affiliate of the Company payments, awards or grants in cash, securities or otherwise pursuant to, or the entering into or performance of Oil funding of, employment arrangements, stock options and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, stock ownership plans in the ordinary course of business, so long as the terms of any such transaction are business and approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionDirectors, (iii) transactions contemplated by any employment agreement the grant of stock options or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by similar rights to employees and directors of the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness pursuant to plans approved by the Board of Directors, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by of the Company’s Board of Directors Company or its Restricted Subsidiaries, but in an aggregate principal amount any event not to exceed $2.5 1 million in the aggregate outstanding at any one time, (v) fees, compensation or employee benefit arrangements paid to and indemnity provided for the benefit of directors, officers or employees of Holdings, the Company or any Subsidiary in the ordinary course of business, subject in the case of Holdings, to the limitation set-forth in Section 4.04(b)(6), (vi) the payment of interest, principal and other amounts under the Junior Subordinated Notes when due in accordance with the terms thereof, (vii) any Affiliate Transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries in the ordinary course of business (so long as the other stockholders of any participating Restricted Subsidiaries which are not Wholly Owned Restricted Subsidiaries and are not themselves Affiliates of the Company), (viii) transactions with B&D pursuant to the B&D Licensing Agreement or (ix) transactions with a Receivables Subsidiary pursuant to any Permitted Receivables Financing.
Appears in 1 contract
Samples: Indenture (Glenoit Asset Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless: (1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ; (2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 1.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in Section 3.8(a)(1)); and (3) in the sale to event such Affiliate Transaction involves an Affiliate aggregate consideration in excess of $5.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(b) Section 3.8(a) shall not apply to: (1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.5; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the sale Board of Directors; (3) loans or advances to an Affiliate employees, officers or directors in the ordinary course of the Company business of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries but in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount event not to exceed $2.5 1.5 million in the aggregate outstanding at any one time.time with respect to all loans or advances made since the Issue Date;
Appears in 1 contract
Samples: Indenture (NBC Acquisition Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary Group Member to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Group Member than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $15.0 12.5 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including either (A) a majority of the members committee of the Board of Directors having no personal stake in a majority of whose members are disinterested with respect to such transaction or (B) a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction, Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and that the relevant Affiliate Transaction is in the best interest of the Company or such Restricted Group Member and have approved the relevant Affiliate Transaction as evidenced by a Board Resolution; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves an amount in excess of $25.0 million, the Board of Directors shall also have been determined by received a nationally recognized written opinion from an investment banking or firm, accounting firm or other qualified independent appraiser appraisal firm of national prominence that is not an Affiliate of the Company to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesGroup Members.
(b) The provisions of Section 4.08(a4.07(a) shall will not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate of the Company or be made pursuant to Section 4.04;
(2) the entering into into, maintaining or performance of Oil and Gas Hedging Contractsany employment contract, gas gatheringcollective bargaining agreement, transportation benefit plan, program or processing contracts arrangement, related trust agreement or oil any other similar arrangement for or natural gas marketing with any employee, officer or exchange contracts with an Affiliate of the Company, in each case, director heretofore or hereafter entered into in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transactionincluding vacation, health, insurance, deferred compensation, retirement, savings or other similar plans;
(ii3) the sale to payment of compensation, performance of indemnification or contribution obligations, or an Affiliate issuance, grant or award of the Company of Capital Stock of the Company that does not constitute Disqualified Stockstock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionoptions, (iii) transactions contemplated by any employment agreement or other compensation plan equity-related interests or arrangement existing on the Issue Date other securities, to employees, officers or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, ;
(iv4) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries Group Members who are not employees of the Company or its Restricted Group Members;
(5) any transaction with a Restricted SubsidiaryGroup Member or joint venture or similar entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Group Member owns an equity interest in or otherwise controls such Restricted Group Member, joint venture or similar entity;
(v6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company; and
(7) transactions between with respect to the provision of Telecommunications Business services, including wireline or among wireless transmission capacity, the Company and its Restricted Subsidiarieslease or sharing or other use of cable or fiber optic lines, (vi) transactions equipment, rights-of-way or other access rights between the Company or any of its Restricted Subsidiaries Group Member and Persons that are controlled (as defined any other Person; provided, however, that, in the definition case of “Affiliate”) by the Company this clause (an “Unrestricted Affiliate”7); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in , such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.transaction complies with
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof thereof: (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves (or series of related Affiliate Transactions) involve aggregate payments in an amount in excess of $15.0 million1.0 million in any one year, (i) are set forth in writing writing, (ii) comply with clause (1) of this Section 4.7 and (iii) have been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors having no personal stake in such Affiliate TransactionDirectors, and (3) if such Affiliate Transaction (or series of related Affiliate Transactions) involves aggregate payments in an amount in excess of $25.0 million5.0 million in any one year, (i) comply with clause (2) and (ii) have been determined by a nationally recognized consulting, accounting, appraisal or investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a4.7(a) shall not prohibit (i) any sale Restricted Payment permitted to be paid pursuant to Section 4.4, (ii) any issuance of hydrocarbons securities, or other mineral products to an Affiliate of the Company payments, awards or grants in cash, securities or otherwise, pursuant to, or the entering into or performance of Oil funding of, employment arrangements, stock options and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, stock ownership plans in the ordinary course of business, so long as the terms of any such transaction are business and approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionDirectors, (iii) transactions contemplated by any employment agreement the grant of stock options or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by similar rights to employees and directors of the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and pursuant to plans approved by the Board of Directors, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business of the Company or its Restricted Subsidiaries, (v) fees, compensation or employee benefit arrangements paid to and approved by indemnity provided for the Company’s Board benefit of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.directors, officers or employees of the Company or any
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless unless:
(i) the terms thereof (1) of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2ii) if in the event such Affiliate Transaction involves an amount in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount aggregate consideration in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determine that such Affiliate Transaction satisfies the criteria in clause (i) above); and
(iii) in the event such Affiliate Transaction involves an aggregate consideration in excess of $50.0 million, the Company has received a written opinion from an Independent Financial Advisor that such Affiliate Transaction is fair, from a financial point of view, to the Company and its Restricted Subsidiaries or not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(b) The provisions of Section 3.8(a) shall not apply to:
(i) (x) any Restricted Payment permitted to be made pursuant to Section 3.4 and (y) any Permitted Investment;
(ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale funding of, employment agreements and other compensation arrangements, options to an Affiliate of the Company of purchase Capital Stock of the Company that does not constitute Disqualified Stockpursuant to restricted stock plans, and long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefit plans, pension plans or similar plans or agreements or arrangements, in each case entered into in the sale ordinary course of business;
(iii) loans or advances to an Affiliate employees, officers or directors of the Company or any Restricted Subsidiary in the ordinary course of Indebtedness business consistent with past practices;
(including Disqualified Stockiv) transactions among the Company and/or any Restricted Subsidiary and/or any entity that is an Affiliate solely as a result of any Investment by the Company and/or such Restricted Subsidiary in such entity;
(v) the payment of reasonable and customary fees and compensation to, and employee benefit arrangements, including, without limitation, split-dollar insurance policies, and indemnity provided on behalf of, directors, officers and employees of the Company in connection with an offering or any of such Indebtedness in a market transaction its Restricted Subsidiaries;
(vi) the existence of and on terms substantially identical to those the performance of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by obligations of the Company or any of its Restricted Subsidiaries in under the ordinary course terms of business, (iv) the payment of reasonable fees any agreement to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between which the Company or any of its Restricted Subsidiaries and Persons is a party as of or on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date shall be permitted to the extent that its terms, taken as a whole, are controlled (as defined in the definition of “Affiliate”) by not more disadvantageous to the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with and its Restricted Subsidiaries in any material respect than the Company holds any Investments terms of the applicable agreement in such Unrestricted Affiliate; effect on the Issue Date;
(vii) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Company or any of its Restricted Payments Subsidiaries (provided that are permitted by such agreement was not entered into in contemplation of such acquisition or merger), or any amendment, modification, supplement, extension or renewal thereto (so long as any such amendment, modification, supplement, extension or renewal, taken as a whole, is not disadvantageous in any material respect to the provisions Company and its Restricted Subsidiaries as compared to the applicable agreement as in effect on the date of Section 4.05; and such acquisition or merger);
(viii) loans transactions with customers, clients, suppliers, joint venture partners or advances to employees purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and approved its Restricted Subsidiaries; provided that as determined in Good Faith by the Company, such transactions are on terms, taken as a whole, that are 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;
(ix) any purchases by the Company’s Board Affiliates of Directors Indebtedness of the Company or any of its Restricted Subsidiaries the majority of which Indebtedness is placed with Persons who are not Affiliates;
(x) any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in an aggregate principal amount not connection therewith or any contribution to exceed $2.5 million the Capital Stock of the Company or any of its Restricted Subsidiaries;
(xi) any Permitted Receivables Financing; and
(xii) so long as any GM Second Lien Indebtedness is outstanding at or any one timeof the GM Agreements, Second Lien Documents or GM Intercreditor Agreement is in full force and effect, any transactions contemplated by the terms of such agreements between the Company or any Restricted Subsidiary and GM and/or any of its Affiliates.
Appears in 1 contract
Samples: Indenture (American Axle & Manufacturing Holdings Inc)
Limitation on Affiliate Transactions. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company or a Permitted Affiliate Parent (an “Affiliate Transaction”) unless the terms thereof involving aggregate consideration in excess of €50.0 million for such Affiliate Transactions in any fiscal year, unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable favorable, taken as a whole, to the Company Company, such Permitted Affiliate Parent or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an AffiliateAffiliate (or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company, such 63529049_1 Permitted Affiliate Parent or such Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company, such Permitted Affiliate Parent or such Restricted Subsidiary has conclusively determined in good faith to be fair to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary); and
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 €100.0 million, are set forth in writing and the terms of such transaction have been approved by the Board of Directors, including either (i) a majority of the members of the Board of Directors having no personal stake in or (ii) senior management of the Company, such Permitted Affiliate TransactionParent, and (3) if or such Affiliate Transaction involves an amount in excess of $25.0 millionRestricted Subsidiary, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiariesas applicable.
(b) The provisions of Section 4.08(a4.11(a) shall will not prohibit apply to:
(i1) any Restricted Payment permitted to be made pursuant to Section 4.07 or any Permitted Investment;
(2) any issuance or sale of hydrocarbons Capital Stock, options, other equity-related interests or other mineral products to an Affiliate of the Company securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into into, or performance of Oil maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and Gas Hedging Contractsother compensation arrangements, gas gatheringoptions, transportation warrants or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate other rights to purchase Capital Stock of the Company, a Permitted Affiliate Parent, any Restricted Subsidiary or any Parent, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultant plans (including, without limitation, valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) and/or indemnities provided on behalf of officers, employees or directors or consultants, in each case, case in the ordinary course of business;
(3) loans or advances to employees, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement officers or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries directors in the ordinary course of business, (iv) the payment of reasonable fees to directors business of the Company and its Restricted Subsidiaries who are not employees of the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary, Subsidiary but in any event not to exceed €10.0 million in the aggregate amount outstanding at any one time with respect to all loans or advances made since the 2017 Amendment Effective Date;
(v4) transactions (A) any transaction between or among the Company Company, a Permitted Affiliate Parent and its a Restricted Subsidiaries, Subsidiary (vior an entity that becomes a Restricted Subsidiary in connection with such transaction) transactions or between the Company or any of its among Restricted Subsidiaries and Persons (or an entity that are controlled (as defined becomes a Restricted Subsidiary in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”connection with such transaction); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiB) loans any guarantees issued by the Company, a Permitted Affiliate Parent or advances to employees a Restricted Subsidiary for the benefit of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary (or an entity that becomes a Restricted Subsidiary in connection with such transaction), as the case may be, in accordance with Section 4.09;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and approved otherwise in compliance with the terms of this Agreement, which, taken as a whole, are fair to the Company, the relevant Permitted Affiliate Parent or Restricted Subsidiary, as applicable, or are on terms not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(6) loans or advances to any Affiliate of the Company or a Permitted Affiliate Parent by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, provided that the terms 63529049_1 of such loan or advance are fair to the Company or the relevant Permitted Affiliate Parent or Restricted Subsidiary, as the case may be, or are on terms not materially less favorable than those that could reasonably have been obtained from an unaffiliated party;
(7) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, directors, executives or officers of any Parent, the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(8) the performance of obligations of the Company, any Permitted Affiliate Parent, or any of the Restricted Subsidiaries under (A) the terms of any agreement to which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries is a party as of or on the 2017 Amendment Effective Date or (B) any agreement entered into after the 2017 Amendment Effective Date on substantially similar terms to an agreement under Section 4.11(b)(8)(A), in each case, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any such agreement or amendment, modification, supplement, extension or renewal to such agreement, in each case, entered into after the 2017 Amendment Effective Date will be permitted to the extent that its terms are not materially more disadvantageous to the Finance Parties than the terms of the agreements in effect on the 2017 Amendment Effective Date;
(9) any transaction with (i) a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations or (ii) with an Affiliate in respect of Non-Recourse Indebtedness;
(10) the issuance of Capital Stock or any options, warrants or other rights to acquire Capital Stock (other than Disqualified Stock) of the Company or a Permitted Affiliate Parent to any Affiliate of the Company or such Permitted Affiliate Parent;
(11) the payment to any Permitted Holder of all reasonable expenses Incurred by any Permitted Holder in connection with its direct or indirect investment in the Company, a Permitted Affiliate Parent and their Subsidiaries and unpaid amounts accrued for prior periods;
(12) the payment to any Parent or Permitted Holder (1) of Management Fees (A) on a bona fide arm’s-length basis in the ordinary course of business or (B) of up to the greater of €15.0 million and 0.5% of Total Assets in any calendar year, (2) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including without limitation in connection with loans, capital market transactions, hedging and other derivative transactions, acquisitions or divestitures or (3) of Parent Expenses;
(13) guarantees of Indebtedness, hedging and other derivative transactions and other obligations not otherwise prohibited under this Agreement;
(14) if not otherwise prohibited under this Agreement, the issuance of Capital Stock (other than Disqualified Stock) or Subordinated Shareholder Loans (including the payment of cash interest thereon; provided that, after giving pro forma effect to any such cash interest payment, the Consolidated Net Leverage Ratio would not exceed 4.00 to 1.00) of the Company or a Permitted Affiliate Parent to any Parent of the Company or a Permitted Affiliate Parent or any Permitted Holder; 63529049_1
(15) arrangements with customers, clients, suppliers, contractors, lessors or sellers of goods or services that are negotiated with an Affiliate, in each case, which are otherwise in compliance with the terms of this Agreement; provided that the terms and conditions of any such transaction or agreement as applicable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries, taken as a whole are fair to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries and are on terms not materially less favorable to the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries than those that could have reasonably been obtained in respect of an analogous transaction or agreement that would not constitute an Affiliate Transaction;
(16) (A) transactions with Affiliates in their capacity as holders of indebtedness or Capital Stock of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness or Capital Stock generally, and (B) transactions with Affiliates in their capacity as borrowers of indebtedness from the Company, a Permitted Affiliate Parent or any Restricted Subsidiary, so long as such Affiliates are not treated materially more favorably than holders of such indebtedness generally;
(17) any tax sharing agreement or arrangement and payments pursuant thereto between or among the Ultimate Parent, the Company, a Permitted Affiliate Parent or any other Person or a Restricted Subsidiary not otherwise prohibited by this Agreement and any payments or other transactions pursuant to a tax sharing agreement between the Company, a Permitted Affiliate Parent and any other Person or a Restricted Subsidiary and any other Person with which the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries files a Consolidated tax return or with which the Company, a Permitted Affiliate Parent or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation;
(18) transactions relating to the provision of Intra-Group Services in the ordinary course of business;
(19) any transaction reasonably necessary to effect the Unitymedia Management Merger, the Post-Closing Reorganization and/or Spin-Off;
(20) any transaction in the ordinary course of business between or among the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and any Affiliate of the Company or a Permitted Affiliate Parent that is an Unrestricted Subsidiary or a joint venture or similar entity that would constitute an Affiliate Transaction solely because the Company, a Permitted Affiliate Parent or a Restricted Subsidiary owns an equity interest in or otherwise controls such Unrestricted Subsidiary, joint venture or similar entity;
(21) commercial contracts entered into in the ordinary course of business between an Affiliate of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary and the Company, a Permitted Affiliate Parent or any Restricted Subsidiary that are on arm’s Board length terms or on a basis that senior management of Directors the Company, a Permitted Affiliate Parent or a Restricted Subsidiary reasonably believes allocates costs fairly;
(22) transactions between any Restricted Subsidiary and the Common Holding Company or any Parent and/or their Subsidiaries, in an aggregate principal amount not each case, to exceed $2.5 million outstanding at effect or facilitate the transfer 63529049_1 of any one timeproperty or asset from the Company, any Permitted Affiliate Parent and/or any Restricted Subsidiary to another Restricted Subsidiary, any Permitted Affiliate Parent and/or the Company, as applicable; and
(23) any Permitted Financing Action.
Appears in 1 contract
Samples: Additional Facility Accession Agreement (Liberty Global PLC)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any serviceARRANGEMENTS OR THE RENDERING OF ANY SERVICE) with any Affiliate of the Company WITH, OR FOR THE BENEFIT OF, ANY AFFILIATE OF THE COMPANY IN AN AMOUNT GREATER THAN $1.0 MILLION IN ANY TRANSACTION OR SERIES OF RELATED TRANSACTIONS (an AN “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of the Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary than those that could reasonably be expected to be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 5.0 million, the terms of the Affiliate Transaction are set forth in writing and have been approved by the Board of Directors, including a majority of the members directors of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if Company disinterested with respect to such Affiliate Transaction involves an amount have determined in excess of $25.0 million, good faith that the criteria set forth in clause (1) are satisfied and have been determined approved the relevant Affiliate Transaction as evidenced by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.Board Resolution; and
(b) The provisions of Section 4.08(a4.05(a) shall not prohibit prohibit:
(i1) any sale of hydrocarbons employment agreement or other mineral products to an Affiliate of employee compensation plan or arrangement in existence on the Company Issue Date or the entering entered into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, thereafter in the ordinary course of businessbusiness including any issuance of securities, so long as or other payments, awards or grants in cash, securities or otherwise pursuant to, or the terms of any such transaction are funding of, employment arrangements, stock options and stock ownership plans approved by a majority of the members of the Board of Directors who are disinterested Directors;
(2) loans or advances to employees (or cancellations thereof) in the ordinary course of business in accordance with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company or its Subsidiaries, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time;
(3) advances to or reimbursements of Capital Stock employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case in the ordinary course of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate business of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, Subsidiaries;
(iv4) the payment of reasonable compensation and fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Subsidiaries;
(5) any Restricted Subsidiarytransaction between the REIT, the Company, the Operating Partnership and/or their respective Subsidiaries;
(v6) transactions between or among indemnities of officers, directors and employees of the Company or any Subsidiary consistent with applicable charter, by-law or statutory provisions;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company or the receipt by the Company of a cash capital contribution from its stockholders;
(8) transactions with Joint Ventures, customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and its Restricted Subsidiariesotherwise in compliance with the terms of this Indenture, provided that in the reasonable determination of the Board of Directors or the senior management of the Company, such transactions are on terms not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(vi9) transactions between the Company or any Subsidiary and any Person, a director of its Restricted Subsidiaries which is also a director of the Company or any director or indirect parent company of the Company, and Persons such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Subsidiary; provided, however, that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any matter involving such other Person;
(10) any transaction with Affiliates pursuant to arrangements in existence on the Issue Date pursuant to which those Affiliates own, or are controlled (as defined entitled to acquire, working, overriding royalty or other similar interests in the definition of “Affiliate”) particular properties operated by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with any Subsidiary or in which any of the Company holds any Investments in such Unrestricted Affiliate; or one or more Subsidiaries also own an interest;
(vii11) Restricted Payments that are mergers, consolidations or sales of all or substantially all assets permitted by by, and complying with, the provisions of Section 4.05; 5.01, 5.02 and 5.03;
(viii12) loans the execution of the restructuring transactions pursuant to the Plan of Reorganization and the payment of all fees and expenses related thereto or advances to employees in the ordinary course of business and approved required by the Company’s Board Plan of Directors Reorganization; and
(13) transactions undertaken in an aggregate principal amount good faith by the Company for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not to exceed $2.5 million outstanding at for the purpose, or with the effect, of circumventing any one timeprovision set forth in this Indenture.
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof (1) are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of $15.0 2.0 million, (i) are set forth in writing and (ii) have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, Transaction and (3) if such Affiliate Transaction involves an amount in excess of $25.0 10.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale Restricted Payment permitted to be made pursuant to Section 4.05 or any Permitted Investment, (ii) any issuance of hydrocarbons securities, or other mineral products payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to an Affiliate employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, advances to employees in the ordinary course of business, so long as business in accordance with the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate past practices of the Company of Capital Stock of the Company that does or its Restricted Subsidiaries, but in any event not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company exceed $10 million in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionaggregate principal amount outstanding at any one time, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (ivv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) any Affiliate Transaction between the Company and a Consolidated Restricted Subsidiary or between Consolidated Restricted Subsidiaries and (vii) transactions pursuant to any agreement as in existence as of the Issue Date between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition Continental Grain or one of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeits Subsidiaries.
Appears in 1 contract
Samples: Indenture (Contifinancial Corp)
Limitation on Affiliate Transactions. (a) The Company Parent shall not, and shall not permit any Restricted Subsidiary to, to enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company Parent (an “Affiliate Transaction”) unless involving aggregate value in excess of the terms thereof greater of $35.0 million and 10.0% of LTM EBITDA, unless:
(1) the terms of such Affiliate Transaction taken as a whole are no not materially less favorable to the Company Parent or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s-arm’s length dealings with a Person who is not such an Affiliate, ; and
(2) if in the event such Affiliate Transaction involves an amount aggregate value in excess of $15.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess greater of $25.0 million50.0 million and 15.0% of LTM EBITDA, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect Directors. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if such transaction, (ii) the sale to an Affiliate Transaction is approved by a majority of the Company Disinterested Directors, if any.
(b) The provisions of this Section 3.8(a) above shall not apply to:
(1) any Restricted Payment or other transaction permitted to be made or undertaken pursuant to Section 3.3 (including Permitted Payments), or any Permitted Investment;
(2) any issuance or sale of Capital Stock other than Disqualified Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company Parent, any Restricted Subsidiary or any Parent Entity, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Parent, in each case in the ordinary course of business or consistent with past practice;
(3) any Management Advances and any waiver or transaction with respect thereto;
(4) (a) any transaction between or among the Parent and any Restricted Subsidiary (or entity that does not constitute Disqualified Stockbecomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (b) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Parent and such merger, amalgamation or consolidation is otherwise consummated in compliance with this Indenture;
(5) the payment of compensation, fees, costs and reimbursement of expenses to, and the sale to an Affiliate of the Company of Indebtedness customary indemnities (including Disqualified Stockunder customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company in connection with an offering Parent, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through any Controlled Investment Affiliate or Immediate Family Member of such Indebtedness in a market transaction directors, officers or employees);
(6) the entry into and on terms substantially identical to those performance of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on obligations of the Issue Date or thereafter entered into by the Company Parent or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Completion Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or to the extent not more disadvantageous to the Holders in any material respect;
(7) any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness or consistent with past practice, which are fair to the Parent or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or the senior management of the Parent or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(iv9) any transaction between or among the Parent or any Restricted Subsidiary and any Person that is an Affiliate of the Parent or an Associate or similar entity solely because the Parent or a Restricted Subsidiary or any Affiliate of the Parent or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(10) issuances, transfers or sales of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Parent or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Parent or any Restricted Subsidiary;
(11) (a) payments by the Parent or any Restricted Subsidiary (or distributions or dividends by the Parent in lieu of such payments) to any Permitted Holder (whether directly or indirectly), including to its affiliates or its designees, of management, consulting, monitoring, refinancing, transaction, advisory, indemnities and other fees, costs and expenses (plus any unpaid management, consulting, monitoring, transaction, advisory, indemnities and other fees, costs and expenses accrued in any prior year) and any exit and termination fees (including any such cash lump sum or present value fee upon the consummation of a corporate event, including an initial public offering) pursuant to any management services or similar agreements or the management services or other relevant provisions in an investor rights agreement, limited partnership agreement, limited liability company agreement or other equityholders’ agreement, as the case may be and (b) payments by the Parent or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly, including through any Parent Entity) for 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 in the case of each of clauses (a) and (b) in the reasonable determination of the Parent;
(12) payment to any Permitted Holder of all out of pocket expenses Incurred by such Permitted Holder in connection with its direct or indirect investment in the Parent and its Subsidiaries;
(13) the Transactions and the payment of reasonable fees all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related to directors of the Company and its Restricted Subsidiaries who are not employees of Transactions, in each case as disclosed in the Company Offering Memorandum;
(14) transactions in which the Parent 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 Parent or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1);
(v15) transactions between the existence of, or among the Company performance by the Parent or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Completion Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Parent or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Completion Date will only be permitted under this clause (15) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect;
(16) any purchase by the Parent’s Affiliates of Indebtedness or Disqualified Stock of the Parent or any of their Restricted Subsidiaries, Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Parent’s Affiliates; provided that such purchases by the Parent’s Affiliates are on the same terms as such purchases by such Persons who are not the Parent’s Affiliates;
(vi17) transactions between (i) investments by Affiliates in securities or loans of the Company Parent or any of its Restricted Subsidiaries (and Persons that are controlled payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Parent or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (as defined ii) payments to Affiliates in respect of securities or loans of the Parent or any of its Restricted Subsidiaries contemplated in the definition foregoing subclause (i) or that were acquired from Persons other than the Parent and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(18) payments by the Parent (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements or other similar agreements in respect of “Affiliate”Related Taxes” among the Parent (and any such Parent Entity) and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Parent and its Subsidiaries;
(19) payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Parent 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 or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Company board of directors of the Parent in good faith;
(an “Unrestricted Affiliate”20) 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 or arrangements thereto); provided that no other Person that controls , employment, termination or severance agreement, or any stock subscription or equityholder agreement between the Parent or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (as so definedor their respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable determination of the Parent or is under common control entered into in connection with the Company holds Transactions;
(21) any Investments transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of the disposition of assets or equity interests in any Restricted Subsidiary permitted under Section 3.5 or entered into with any Business Successor, in each case, that the Parent determines in good faith is either fair to the Parent or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(22) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Affiliate; Subsidiary is redesignated as a Restricted Subsidiary as described under Section 3.16 and pledges of Capital Stock of Unrestricted Subsidiaries;
(vii23) (i) any lease entered into between the Parent or any Restricted Payments that are permitted Subsidiary, as lessee, and any Affiliate of the Parent, as lessor and (ii) any operational services or other arrangement entered into between the Parent or any Restricted Subsidiary and any Affiliate of the Parent, in each case, which is approved as being on arm’s length terms by the provisions reasonable determination of Section 4.05; the Parent;
(24) intellectual property licenses and (viii) loans or advances to employees research and development agreements in the ordinary course of business or consistent with past practice;
(25) payments to or from, and approved transactions with, any Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements or activities related thereto);
(26) the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant to equityholders, investor rights, registration rights or similar agreements;
(27) transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(28) Permitted Intercompany Activities, Permitted Tax Restructurings, Intercompany License Agreements and related transactions. In addition, if the Parent or any of its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the purchase or acquisition by an Affiliate of the Parent 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’s Board Parent or a Restricted Subsidiary to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of Directors assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an Affiliate of the Parent of an interest in all or a portion of the assets or properties sold shall not be deemed an aggregate principal amount not Affiliate Transaction (or cause such sale or other disposition by the Parent or a Restricted Subsidiary to exceed $2.5 million outstanding at any one timebe deemed an Affiliate Transaction).
Appears in 1 contract
Samples: Indenture (RBC Bearings INC)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sarm's-length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 5 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company having no personal stake in such transaction, if any (and such majority determines that such Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $10 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate.
(b) The foregoing paragraph (a) will not apply to (i) any Restricted Payment permitted to be made pursuant to Section 3.5, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale funding of, 53 45 employment arrangements or bonuses (whether or not pursuant to an Affiliate employment agreement), stock options and stock ownership plans approved by the Board of Directors of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany, (iii) transactions contemplated by any employment agreement loans or other compensation plan or arrangement existing on advances to employees in the Issue Date or thereafter entered into by ordinary course of business of the Company or any of its Restricted Subsidiaries in the ordinary course of businessSubsidiaries, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company Issuer or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (v) any payments to the Company by the Restricted Subsidiaries pursuant to a tax sharing agreement, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business between the Company or any Restricted Subsidiary with Selfix Europe L.L.C. or its successors and approved by (vii) any transaction between the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeCompany and a Wholly-Owned Subsidiary or between Wholly-Owned Subsidiaries.
Appears in 1 contract
Samples: Indenture (Selfix Inc /De/)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or permit suffer to exist any transaction or series of related transactions (including the purchase, sale, lease transfer, assignment, lease, conveyance or exchange of any property, employee compensation arrangements Property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”"), unless:
(i) unless the terms thereof (1) of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’sa comparable arm's-length dealings transaction with a Person who that is not such an Affiliate, Affiliate of the Company;
(2ii) if such Affiliate Transaction involves an amount aggregate payments or value in excess of $15.0 10.0 million, are set forth in writing and have been approved by the Board of Directors, Directors (including at least a majority of the disinterested members of the Board of Directors having no personal stake in Directors) approves such Affiliate TransactionTransaction and, and in its good faith judgment, believes that such Affiliate Transaction complies with clause (3a)
(i) of this Section as evidenced by a Board Resolution promptly delivered to the Trustee; and
(iii) if such Affiliate Transaction involves an amount aggregate payments or value in excess of $25.0 million, have been determined by the Company obtains a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Financial Advisor to the effect that the consideration to be paid or received in connection with such Affiliate Transaction is fair, from a financial standpointpoint of view, to the Company and its Restricted Subsidiaries, taken as a whole.
(b) The provisions of Section 4.08(a) shall not prohibit Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary may enter into or suffer to exist the following Affiliate Transactions:
(i) any sale transaction or series of hydrocarbons or other mineral products to an Affiliate of transactions between the Company and one or the entering into more Restricted Subsidiaries or performance of Oil and Gas Hedging Contracts, gas gathering, transportation between two or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its more Restricted Subsidiaries in the ordinary course of business, ;
(ivii) any Restricted Payment permitted to be made pursuant to Section 4.10 hereof or any Permitted Investment;
(iii) the payment of reasonable fees to compensation (including awards or grants in cash, securities or other payments) for the personal services of officers and directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among of the Company and its Restricted Subsidiaries, so long as the Board of Directors in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation to be fair consideration therefor;
(viiv) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees payments in the ordinary course of business pursuant to employment agreements, collective bargaining agreements, employee benefit plans, or arrangements for officers or directors, including health and approved by life insurance plans, deferred compensation plans, directors' and officers' indemnification agreements and retirement or savings plans, stock option, stock ownership and similar plans;
(v) loans and advances to officers and directors (or guarantees of third-party loans to officers or directors) made in the Company’s Board ordinary course of Directors in an aggregate principal amount business; provided that such loans and advances do not to exceed $2.5 million outstanding at any one time.
Appears in 1 contract
Samples: Indenture (Polyone Corp)
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the or series of related transactions for(the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with or for the benefit of any Affiliate of the Company Company, other than a Wholly-Owned Subsidiary (an “"Affiliate Transaction”") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’s-arm's length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 million100,000, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction, (ii) the sale to an Affiliate of the Company of Capital Stock and by a majority of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering disinterested members of such Indebtedness Board, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in a market transaction (i) above); and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on in the Issue Date or thereafter entered into by event such Affiliate Transaction involves an aggregate amount in excess of $10,000,000, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair to the Company or any such Restricted Subsidiary, as the case may be, from a financial point of its Restricted Subsidiaries view; provided, however, that (X) advertising contracts entered into in the ordinary course of business, (iv) the payment of reasonable fees to directors of business between the Company and its Restricted Subsidiaries who are ANY OF ITS AFFILIATES AND (Y) LICENSING AND OTHER COMMERCIAL ARRANGEMENTS BETWEEN THE COMPANY AND OTIS XXXVATOR COMPANY AND/OR ITS AFFILIATES need only be approved in the manner contemplated in (A)(I) AND (a)(ii) above.
(b) The foregoing paragraph (a) shall not employees apply to (i) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, or any stock options and stock ownership plans for the benefit of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Company or any Restricted SubsidiaryCompany, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viiiii) loans or advances to employees in the ordinary course of business and approved by of the Company’s Board Company or any of Directors its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $2.5 million outstanding 100,000 at any one time, (iii) any transaction between Wholly-Owned Subsidiaries, (iv) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business, (v) transactions pursuant to agreements in existence on the Issue Date which are (x) described in the Offering Memorandum or (y) otherwise, in the aggregate, immaterial to the Company and its Restricted Subsidiaries taken as a whole, (vi) any employment, non-competition or confidentiality agreements entered into by the Company or any of its Restricted Subsidiaries with its employees in the ordinary course of business, (vii) THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 28, 2000 AMONG THE COMPANY AND CERTAIN OF ITS SECURITY HOLDERS, THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT DATED AS OF JANUARY 28, 2000 AMONG THE COMPANY AND CERTAIN OF ITS SECURITY HOLDERS, THE WARRANT AGREEMENT BETWEEN THE COMPANY AND UNITED STATES TRUST COMPANY OF NEW YORK DATED AS OF FEBRUARY 18, 1998, AND THE COMMON STOCK REGISTRATION RIGHTS AND STOCKHOLDERS AGREEMENT BETWEEN THE COMPANY AND NATWEST CAPITAL MARKETS LIMITED, AS INITIAL PURCHASER, IN EACH CASE AS THE SAME MAY BE AMENDED FROM TIME TO TIME and (viii) the issuance of Capital Stock of the Company (other than Disqualified Stock).
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with or for the benefit of any Affiliate of the Company (an “"Affiliate Transaction”") unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’sarm's-length dealings with a Person who that is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 million2,000,000, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are of the Company and by a majority of the disinterested with respect to members of such transactionBoard of Directors, if any (iiand such majority or majorities, as the case may be, determine that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale to event such Affiliate Transaction involves an aggregate amount in excess of $15,000,000, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate. The preceding paragraph will not apply to:
(1) transactions exclusively between or among the Company and/or any of its Restricted Subsidiaries; provided, however, in each case, such transaction is not otherwise prohibited by the indenture and that no Affiliate of the Company of (other than another Restricted Subsidiary) owns Capital Stock of in any such Restricted Subsidiary;
(2) any agreement in effect on the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company Issue Date as in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing effect on the Issue Date or as thereafter entered into by amended in a manner which is, taken as a whole, in the good faith judgment of the Board of Directors of the Company not materially less favorable to the Company or such Restricted Subsidiary than the original agreement as in effect on the Issue Date;
(3) any directors' fees, employment, compensation, benefit, incentive, indemnity or similar agreements, arrangements or plans in respect of its Restricted Subsidiaries in the ordinary course of businessany officer, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees director, employee or consultant of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees Subsidiary entered into in the ordinary course of business and approved by the Company’s Board of Directors of the Company;
(4) loans and advances permitted by clause (7) of the definition of "Permitted Investment";
(5) any transaction with a Unrestricted Subsidiary in the ordinary course of business that complies with the requirements of clause (1) of the first paragraph of this Section 4.14;
(6) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party on the Issue Date and identified on a schedule to the indenture on the Issue Date, as these agreements may be amended, modified or supplemented from time to time in compliance with the first paragraph of this Section 4.14;
(7) customary commercial banking, investment banking, underwriting, placement agent or financial advisory fees paid in connection with services rendered to the Company or the Restricted Subsidiaries in the ordinary course of business that complies with the requirements of clause (1) of the first paragraph of this Section 4.14;
(8) the Advisory Agreement;
(9) purchase, lease, supply or similar agreements entered into in the ordinary course of business between the Company or any Restricted Subsidiaries and any Unrestricted Subsidiary or any Affiliate, so long as a majority of the disinterested directors determine that any such agreement is on terms no less favorable to the Company or the Restricted Subsidiary, as applicable, than those that could have been obtained in a comparable arm's-length transaction with Person that is not an aggregate principal amount not Affiliate;
(10) the issuance and sale of Qualified Stock;
(11) any Restricted Payment (other than a Restricted Investment) permitted to exceed $2.5 million outstanding at any one timebe made pursuant to Section 4.11; and
(12) transactions effected as part of a Permitted Securitization Transaction.
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 5.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale event such Affiliate Transaction involves an aggregate consideration in excess of $15.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(b) The provisions of Section 3.8(a) will not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to an Affiliate be made pursuant to Section 3.3, any Permitted Investments (other than those Investments described under clauses (1), (2) or (10) of the Company definition of Permitted Investment), and any transactions specifically excluded from the definition of Restricted Payment;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the Board of Directors of the Company;
(3) loans or advances to employees, officers or directors in the ordinary course of business of the Company or any of its Restricted Subsidiaries but in any event not to exceed $3.0 million in the aggregate outstanding (without giving effect to the forgiveness of any such loan) at any one time with respect to all loans or advances made since the Issue Date provided, however, that does not constitute Disqualified Stockthe Company and its Subsidiaries shall comply in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith that would be applicable to an issuer with debt securities registered under the Securities Act relating to such loans;
(4) any transaction between the Company and a Restricted Subsidiary (other than a Receivables Entity) or between Restricted Subsidiaries (other than a Receivables Entity or Receivables Entities) and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.2;
(5) the payment of reasonable and customary fees or compensation paid to, and indemnity provided on behalf of, directors, officers, employees or consultants of the Company, Holdings or any Restricted Subsidiary;
(6) the existing of, and the sale to an Affiliate performance of, obligations of the Company or any of Indebtedness (including Disqualified Stock) its Restricted Subsidiaries under the terms of the Company Designated Agreements; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date will be permitted to the extent that its terms are, taken as a whole, not materially more disadvantageous to the Holders of the Securities than the terms of the agreements in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing effect on the Issue Date or thereafter entered into (as determined in good faith by the disinterested members of the Board of Directors of the Company); provided further that no payments may be made by the Company or any of its Restricted Subsidiaries prior to August 15, 2006, in respect of annual management fees payable under the Advisory Agreements (other than such fees paid on the Closing Date) as described in the ordinary course of businessOffering Memorandum; provided further that prior to February 15, (iv) the payment of reasonable fees to directors of 2007, the Company and its Restricted Subsidiaries who are shall not employees pay annual management fees under the Advisory Agreements during any 12-month period in excess of the lesser of (a) $1.0 million and (b) 1.0% of Consolidated EBITDA (excluding amounts otherwise added to Consolidated EBITDA pursuant to clause (6) of the definition of Consolidated EBITDA) for the most recently completed four fiscal quarter period for which financial statements are in existence; provided further that on or after February 15, 2007, the Company or and its Restricted Subsidiaries shall not pay annual management fees under the Advisory Agreements during any Restricted Subsidiary, 12-month period in excess of the lesser of (va) $2.0 million and (b) 2.0% of Consolidated EBITDA (excluding amounts otherwise added to Consolidated Net Income in calculating Consolidated EBITDA pursuant to clause (6) of the definition of Consolidated EBITDA) for the most recently completed four fiscal quarter period for which financial statements are in existence;
(7) transactions between with affiliated suppliers or among other purchasers or distributors for the sale or purchase of goods in the ordinary course of business and otherwise in accordance with the terms of this Indenture which are fair to the Company and its Restricted Subsidiaries, in the good faith determination of the disinterested members of the Board of Directors of the Company and are on terms at least as favorable as might reasonably have been obtained from an unaffiliated party;
(vi8) sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction;
(9) the issuance of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting and performance of registration and other customary rights in connection therewith; and
(10) transactions between with a Person that is an Affiliate of the Company, other than a Subsidiary of the Company, solely due to the fact that the Company owns, directly or any of its through a Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”)Subsidiary, Capital Stock in, or controls, such Person; provided provided, however, that no other Person that controls (as so defined) Affiliate of the Company, other than a Restricted Subsidiary, owns, directly or is under common control with the Company holds indirectly, any Investments Capital Stock in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timePerson.
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or asset or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof ), if such Affiliate Transaction or series of related Affiliate Transactions involve aggregate consideration in excess of $5.0 million, unless:
(1) the terms of such Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary (as reasonably determined by the Company), than those that could be have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who that is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 50.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any, and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (ii1) of this Section 4.10(a); and
(3) in the sale to event such Affiliate Transaction involves an aggregate consideration in excess of $75.0 million, the Company has received a written opinion from an Independent Financial Advisor that such Affiliate Transaction is fair from a financial point of view.
(b) Section 4.10(a) shall not apply to:
(1) any transaction that is in the ordinary course of business and consistent with past practice between the Company or a Restricted Subsidiary and any Unrestricted Asian Subsidiary;
(2) any transaction involving the provision of services or the supply of goods or equipment between the Company or a Restricted Subsidiary and a Joint Venture in which the Company and/or a Restricted Subsidiary has a material ownership interest that is entered into in the ordinary course of business consistent with past practices of the Company and/or any of its Restricted Subsidiaries;
(3) any transaction between the Company and a Restricted Subsidiary (other than a Receivables Entity) or between Restricted Subsidiaries (other than a Receivables Entity or Receivables Entities) and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary in accordance with Section 4.03;
(4) any Restricted Payment permitted to be made pursuant to Section 4.04 and the definition of “Permitted Investments”;
(5) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or as the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity or insurance provided on behalf of current or former officers and employees pursuant to any plans approved by the sale Board of Directors of the Company;
(6) the payment of reasonable and customary fees paid to an Affiliate and any indemnity and insurance provided on behalf of (x) current or former directors of the Company and any Restricted Subsidiary and (y) current or former directors of Indebtedness (including Disqualified Stock) of the Company any Unrestricted Subsidiary, provided that such fees, indemnity or insurance are similar in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical scope to those provided in clause (6)(x);
(7) loans or advances to employees, officers or directors of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business, in an aggregate amount not in excess of $10.0 million (ivwithout giving effect to the forgiveness of any such loan);
(8) any agreement as in effect as of the Issue Date, as such agreement may be amended, modified, supplemented, extended or renewed from time to time, so long as the terms of such agreement as so amended, modified, supplemented, extended or renewed are not more disadvantageous to the Holders in any material respect, when taken as a whole, than the terms of such agreement in effect on the Issue Date; provided that if such amendment, modification, supplement, extension or renewal involves an aggregate consideration in excess of $50.0 million, the terms thereof have been approved by the Board of Directors;
(9) any agreement between any Person and an Affiliate of such Person existing at the payment time such Person is acquired by or merged into the Company or a Restricted Subsidiary; provided that such agreement was not entered into contemplation of reasonable fees such acquisition or merger, and any amendment thereto (so long as any such agreement as so amended is not disadvantageous to directors the Holders, when taken as a whole, as compared to the applicable agreement as in effect on the date of such acquisition or merger, provided that if such amendment involves an aggregate consideration in excess of $50.0 million, the terms thereof have been approved by the Board of Directors);
(10) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Restricted Subsidiaries who and otherwise in compliance with the terms of the Indenture; provided that in the reasonable determination of the Board of Directors or Senior Management of the Company, such transactions are on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person;
(11) any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(12) sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction;
(13) transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not employees materially less favorable than those that could have been obtained by the Company or such Restricted Subsidiary in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;
(14) transactions between and among Excluded Project Subsidiaries; and
(15) transactions between the Company 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 and such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Restricted Subsidiary; provided, (v) transactions between or among the Company and its Restricted Subsidiarieshowever, (vi) transactions between that such director shall abstain from voting as a director of the Company or such direct or indirect parent company, as the case may be, on any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no matter involving such other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timePerson.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Covanta Holding Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof unless:
(1) the terms of such Affiliate Transaction are no less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if in the event such Affiliate Transaction involves an amount aggregate consideration in excess of $15.0 10.0 million, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are disinterested with respect to of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (iiand such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and
(3) in the sale to event such Affiliate Transaction involves an Affiliate aggregate consideration in excess of $20.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that such Affiliate Transaction is fair, from a financial standpoint, to the Company or its Restricted Subsidiaries or is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. The preceding paragraph shall not apply to:
(1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.4;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company that does not constitute Disqualified StockCompany, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans provided on behalf of officers and employees approved by the sale to an Affiliate Board of Directors of the Company Company;
(3) loans or advances to employees, officers or directors in the ordinary course of Indebtedness (including Disqualified Stock) business of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries but in any event not to exceed $3.0 million in the ordinary course aggregate outstanding (without giving effect to the forgiveness of businessany such loan) at any one time with respect to all loans or advances made since the Issue Date; provided, however, that the Company and its Subsidiaries shall comply in all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith that would be applicable to an issuer with debt securities registered under the Securities Act relating to such loans and advances;
(iv4) any transaction between the Company and a Restricted Subsidiary (other than a Receivables Entity) or between Restricted Subsidiaries (other than a Receivables Entity) and Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.3;
(5) the payment of reasonable and customary fees paid to directors of the Company directors, and its Restricted Subsidiaries who are not indemnity provided on behalf of, directors, officers and employees of the Company or any Restricted Subsidiary, ;
(v6) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between performance of obligations of the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in under the definition terms of “Affiliate”) by any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and identified in an annex to this Indenture on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date shall be permitted to the extent that its terms are not more disadvantageous to the Holders of the Securities than the terms of the agreements in effect on the Issue Date;
(an “Unrestricted Affiliate”); provided that no 7) sales or other Person that controls transfers or dispositions of Receivables and other related assets to a Receivables Entity in a Qualified Receivables Transaction, and Permitted Investments made in connection with a Qualified Receivables Transaction;
(as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees 8) transactions in the ordinary course of the business of the Company and approved its Restricted Subsidiaries; provided that 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; and
(9) any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one time.
Appears in 1 contract
Limitation on Affiliate Transactions. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or permit to exist conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee compensation arrangements property or the rendering of any service) with or for the benefit of any Affiliate of the Company Company, other than a Wholly-Owned Subsidiary (an “"Affiliate Transaction”") unless unless: (i) the terms thereof (1) of such Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm’s-arm's length dealings with a Person who is not such an Affiliate, ; (2ii) if in the event such Affiliate Transaction involves an aggregate amount in excess of $15.0 million500,000, are set forth in writing and have been approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, and (3) if such Affiliate Transaction involves an amount in excess of $25.0 million, have been determined by a nationally recognized investment banking or accounting firm or other qualified independent appraiser to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any sale of hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate of the Company, in each case, in the ordinary course of business, so long as the terms of any such transaction are have been approved by a majority of the members of the Board of Directors who are of the Company and by a majority of the disinterested with respect members of such Board, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the event such Affiliate Transaction involves an aggregate amount in excess of $1.0 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair to the Company or such transactionRestricted Subsidiary, as the case may be, from a financial point of view.
(b) The foregoing paragraph (a) shall not apply to (i) any Restricted Payment permitted to be made pursuant to the covenant described under Section 4.4, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the sale to an Affiliate funding of, employment arrangements, or any stock options and stock ownership plans for the benefit of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Company of Capital Stock of the Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transactionCompany, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between the Company or any of its Restricted Subsidiaries and Persons that are controlled (as defined in the definition of “Affiliate”) by the Company (an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by of the Company’s Board Company or any of Directors its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $2.5 250,000 to any employee or $1.0 million outstanding in the aggregate at any one time, (iv) any transaction between Wholly-Owned Subsidiaries, (v) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business, (vi) transactions pursuant to agreements in existence on the Issue Date which are (x) described in the Offering Memorandum or (y) otherwise, in the aggregate, immaterial to the Company and its Restricted Subsidiaries taken as a whole, (vii) any employment, non-competition or confidentiality agreements entered into by the Company or any of its Restricted Subsidiaries with its employees in the ordinary course of business, (viii) the issuance of Capital Stock of the Company (other than Disqualified Stock).
Appears in 1 contract
Samples: Indenture (Comforce Corp)
Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless the terms thereof if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate consideration in excess of $2.5 million, unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of such transaction the Affiliate Transaction in arm’s-length dealings with a Person who is not such an Affiliate, ;
(2) if such Affiliate Transaction involves an amount in excess of $15.0 million, are the Board of Directors of the Company has determined in good faith that the criteria set forth in writing Section 4.07(a)(1) are satisfied and have been approved the relevant Affiliate Transaction as evidenced by the Board of Directors, including a majority of the members resolution of the Board of Directors having no personal stake in such Affiliate Transaction, and of the Company; and
(3) if such Affiliate Transaction involves an amount in excess of $25.0 50.0 million, the Board of Directors of the Company shall also have been determined by received a nationally recognized investment banking or accounting firm or other qualified independent appraiser written opinion from an Independent Qualified Party to be the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted SubsidiariesSubsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.08(a4.07(a) shall not prohibit prohibit:
(i1) any sale of hydrocarbons Investment (other than a Permitted Investment) or other mineral products Restricted Payment, in each case permitted to an Affiliate be made pursuant to Section 4.04;
(2) any issuance of the Company securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the entering into funding of, employment arrangements, severance agreements, indemnification agreements, employee benefit plans, stock options, stock ownership plans or performance any similar arrangement approved by the Board of Oil and Gas Hedging Contracts, gas gathering, transportation or processing contracts or oil or natural gas marketing or exchange contracts with an Affiliate Directors of the Company, in each case, ;
(3) loans or advances to employees made in the ordinary course of business, so long as the terms of any such transaction are approved by a majority of the members of the Board of Directors who are disinterested business for bona fide business purposes and consistent with respect to such transaction, past practices;
(ii4) the sale to an Affiliate payment of the Company of Capital Stock of the Company that does not constitute Disqualified Stockreasonable fees and compensation to, and indemnities provided for the sale to an Affiliate benefit of, former, current or future officers, directors or managers, employees or consultants of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction, (iii) transactions contemplated by any employment agreement or other compensation plan or arrangement existing on the Issue Date or thereafter entered into by the Company or any of its Restricted Subsidiaries Subsidiaries;
(5) any transaction with the Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(6) the issuance or sale of any Qualified Equity Interests of the Company;
(7) any agreement as in effect on the Issue Date and described in the Offering Memorandum or any amendments, renewals or extensions of any such agreement (so long as such renewals or extensions are not disadvantageous to the Company in any material respect when taken as a whole as compared to the applicable agreement as in effect on the Issue Date) and the transactions evidenced thereby; or
(8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture, (iv) the payment of reasonable fees which are fair to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or any Restricted Subsidiary, (v) transactions between or among the Company and its Restricted Subsidiaries, (vi) transactions between in the reasonable determination of the Board of Directors of the Company or any of its Restricted Subsidiaries and Persons that the senior management thereof, or are controlled (on terms at least as defined in the definition of “Affiliate”) by the Company (favorable as might be reasonably obtained at such time from an “Unrestricted Affiliate”); provided that no other Person that controls (as so defined) or is under common control with the Company holds any Investments in such Unrestricted Affiliate; (vii) Restricted Payments that are permitted by the provisions of Section 4.05; and (viii) loans or advances to employees in the ordinary course of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $2.5 million outstanding at any one timeunaffiliated party.
Appears in 1 contract
Samples: Indenture (EnergySolutions, Inc.)
