Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and (2) the Issuer delivers to the Trustee: (i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and (ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor. (b) The foregoing restrictions shall not apply to: (1) transactions exclusively between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary; (2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements; (3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis; (4) any Permitted Investments; (5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof); (6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith); (7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates; (8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or (9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 6 contracts
Samples: Supplemental Indenture (Alere Inc.), Sixteenth Supplemental Indenture (Alere Inc.), Fifteenth Supplemental Indenture (Alere Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving payment or consideration in excess of $5.0 million (an “Affiliate Transaction”), unless:
(1) , as determined by the Issuer, such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more its Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (not involving any other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiaryAffiliate;
(2) as determined by the Issuer, reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, and stock option and other benefit compensation plans) and indemnification arrangements and insurance performance of such arrangements;
(3) the entering into any issuance of any tax sharing agreementsecurities, or other payments, awards or grants in cash, securities or otherwise, in each case pursuant to, or the making funding of, employment arrangements, stock options and stock ownership plans in the ordinary course of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisbusiness;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 4.06;
(including payments and transactions that would constitute Restricted Payments but for 6) (x) any agreement or arrangement in effect on the exclusions Issue Date, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement or arrangement as it was in effect on the Issue Date (1as determined in good faith by the Issuer) and or (2y) of any transaction pursuant to any agreement or arrangement referred to in the definition thereofimmediately preceding clause (x);
(67) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such joint venture or similar entity;
(8) ordinary overhead arrangements in which any Subsidiary participates;
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and b) the issuance or sale of any payments of cash in lieu of delivering fractional shares in connection therewith)Qualified Equity Interests;
(710) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with entered into by a joint venture in which Person prior to the time such Person becomes a Restricted Subsidiary or is merged or consolidated into the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, Subsidiary;
(11) the issuance or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers sale of any equity or ownership interests in any such joint venture Qualified Equity Interest of the Issuer to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; orPerson;
(9) without limiting clause (8) immediately above, (i12) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between employment agreements entered into by the Issuer or any of its Restricted Subsidiary Subsidiaries in the ordinary course of business and an Unrestricted Subsidiarythe transactions pursuant thereto; and
(13) any transactions made in connection with, or pursuant to agreements entered into in connection with, the Match Transactions and any amendment or replacement thereof in any manner, that, taken as a whole, is not more disadvantageous to the Issuer in any material respect than such agreement or arrangement (as determined in good faith by the Issuer).
Appears in 5 contracts
Samples: Indenture (Match Group, Inc.), Indenture (Iac/Interactivecorp), Indenture (Match Group, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate payments or consideration in excess of $1.0 million, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would could reasonably be expected to have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) Trustee with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 20.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including pursuant to any employment agreement or any retirement, health, stock option and or other benefit plansplan) and indemnification and insurance arrangements, in each case, as determined in good faith by the Issuer’s Board of Directors or senior management;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) any Restricted Payments which are made in accordance with Section 4.08 4.11;
(including payments and transactions that would constitute Restricted Payments but for 6) (x) any agreement in effect on the exclusions Issue Date, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests of the Issuer or (and b) the issuance or sale of any payments Qualified Equity Interests of cash in lieu of delivering fractional shares in connection therewith)the Issuer;
(79) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the sale ordinary course of business and otherwise in compliance with the 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 arm’s-length basis from a Person that is not an Affiliate of the Issuer;
(10) pledges by the Issuer or any Restricted Subsidiary of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not AffiliatesUnrestricted Subsidiaries;
(8) 11) any transaction with entered into by a joint venture in which Person prior to the time such Person becomes a Subsidiary or is merged or consolidated into the Issuer or a Restricted Subsidiary (provided that such transaction is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for not entered into in contemplation of such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint ventureevent); orand
(912) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant dividends and distributions to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any a Restricted Subsidiary and an by any Unrestricted Subsidiary.
Appears in 5 contracts
Samples: Indenture (Hercules Offshore, Inc.), Indenture (Hercules Offshore, Inc.), Indenture (Hercules Offshore, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) unless such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more its Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (not involving any other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiaryAffiliate;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plansStock Compensation Plans) and indemnification arrangements and insurance arrangementsreasonable payments to Affiliates in consideration for securities issued in connection therewith;
(3) the entering into of any tax sharing agreement, or the making of payments transactions pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, Tax Liability Allocation and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisIndemnification Agreement;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.07;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Offering Memorandum, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(8) ordinary overhead arrangements in which any Subsidiary participates; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 3 contracts
Samples: Indenture (ER Marks, Inc.), Indenture (ER Marks, Inc.), Indenture (QVC Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Parent or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Parent or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Parent or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Parent delivers to the Trustee:
: (ia) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million7,500,000, an Officers’ Certificate of the Parent certifying that such Affiliate Transaction complies with clause (1Section 4.07(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
and (iib) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million 25,000,000 or more, the certificates described in the preceding clause (i4.07(a)(2)(a) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Parent or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Parent and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Parent (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into allocation of employee services among the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basis;
Parent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent); (4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (1)(b), clause (14) or clause (15) of the definition of “Permitted Investments;
” to the extent that such Permitted Investment under clause (14) or clause (15) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Parent beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Parent)); (5) any agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (6) Restricted Payments which are made in accordance with Section 4.08 4.04(a) or Section 4.04(b)(1), (including payments 4)-(7); (7) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the definition thereofParent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent);
; or (6) any transaction with an Affiliate where the only consideration paid by the Issuer 8) issuances, sales or any Restricted Subsidiary is other dispositions of Qualified Equity Interests (and any payments of for cash in lieu of delivering fractional shares in connection therewith);
(7) by the sale Parent to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 3 contracts
Samples: Indenture (William Lyon Homes), Indenture (William Lyon Homes), Indenture (William Lyon Homes)
Limitations on Transactions with Affiliates. (a) The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer, the Co-Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer, the Co-Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer, the Co-Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent disinterested members of the Board of Directors of the Issuer approving such Affiliate TransactionTransaction and affirming the determination set forth in clause (1) above; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 20.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer, the Co-Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer, the Co-Issuer and one or more Guarantors, (b) Guarantors or (c) Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiaryare not Guarantors;
(2) the payment of reasonable and customary director, officer officer, employee and employee consultant compensation (including bonuses) ), reimbursement of expenses and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into issuance of any tax sharing agreement, or Equity Interests (other than Disqualified Equity Interests) of the making of payments pursuant Issuer to any such agreementdirector, between officer, employee or consultant of the Issuer, the Co-Issuer or one or more Subsidiaries, on its Subsidiaries in the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part ordinary course of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisbusiness;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 4.11;
(including payments 5) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods and transactions services, in each case in the ordinary course of business and otherwise not prohibited by this Indenture that would constitute are fair to the Issuer, the Co-Issuer or its Restricted Payments but for Subsidiaries, in the exclusions in clauses (1) and (2) reasonable determination of the definition thereof)members of the Board of Directors of the Issuer or the senior management of the Issuer, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(6) (x) any agreement in effect on the Issue Date and disclosed in the Offering Memorandum, as in effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (y) any transaction with an Affiliate where pursuant to any agreement referred to in the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests immediately preceding clause (and any payments of cash in lieu of delivering fractional shares in connection therewithx);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interestsexistence of, and the sale to an Affiliate of performance by the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii)Issuer, the charges for manufacturing such products are on a “costCo-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary of its obligations under the terms of, any limited liability company, limited partnership or other organizational document or securityholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party on the Issue Date and which is described in the Offering Memorandum, as in effect on the Issue Date, and similar agreements that it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer, the Co-Issuer or any of its Restricted Subsidiaries of obligations under, any amendment to any such existing agreement or any such similar agreement entered into after the date of this Indenture shall only be permitted by this clause (7) to the extent not more disadvantageous to the Holders in any material respect, when taken as a whole, than any of such documents and agreements as in effect on the Issue Date;
(8) the Transactions and the payment of all transaction, underwriting commitment and other fees and expenses incurred in connection with the Transactions;
(9) sales of Qualified Equity Interests to Affiliates of the Issuer not otherwise prohibited by this Indenture and the granting of registration and other customary rights in connection therewith;
(10) loans or advances to employees in the ordinary course of business consistent with past practice;
(11) any transaction between or among WML or any of its Subsidiaries, on the one hand, and the Issuer or any of its Subsidiaries other than WML and its Subsidiaries, on the other hand, that qualifies as a “Permitted Affiliate Transaction” under the WML Credit Agreements; provided, that, except with respect to the services to be provided and fees payable under the management agreement between WML and the Issuer, no such affiliate transaction shall constitute a “Permitted Affiliate Transaction” unless it is consummated on terms and conditions that are at fair market value and generally similar to the terms and conditions that would apply in a comparable arm’s length transaction with an Unrestricted Subsidiaryunrelated third party and the Issuer delivers to the Trustee the certificates referred to in Section 4.15(a)(2)(A), to the extent required by such provision; or
(12) Permitted Investments made in accordance with clause (19) of the definition thereof.
Appears in 2 contracts
Samples: Indenture (Westmoreland Energy LLC), Indenture (WESTMORELAND COAL Co)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of $60,000 (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would may have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer of $5.0 million or more, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above;
(b) with respect to any Restricted Subsidiary in a consecutive twelve-month period Affiliate Transaction involving aggregate value in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iic) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ib) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments”;
(4) any Permitted Investmentsagreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated thereby;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transaction with an Affiliate where the only consideration paid sales of Qualified Equity Interests for cash by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 2 contracts
Samples: Indenture (Meritage Homes CORP), Indenture (Meritage Homes CORP)
Limitations on Transactions with Affiliates. Until the Notes receive an Investment Grade rating from both Rating Agencies (a) The after which time this Section 4.10 shall no longer be in effect), the Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate consideration in excess of $2.0 million, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance loan or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that such Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries; provided, providedhowever, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case consistent with past practices;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments”;
(4) any Permitted Investmentsagreement as in effect as of the Issue Date and described in the Offering Memorandum or any extension, amendment or modification of such agreement (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated by such agreement;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transactions in the ordinary course of business with M/I Financial, LLC or other Unrestricted Subsidiaries that are engaged in the business of originating mortgages on behalf of new home customers of the Issuer and its homebuilding Subsidiaries; provided, however, that such transactions are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could be obtained in a comparable transaction with at such time on an Affiliate where the only consideration paid arm’s-length basis by the Issuer or any such Restricted Subsidiary from a Person that is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to not an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer in connection with an offering of or such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Indenture (M I Homes Inc), Indenture (M I Homes Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary (including the Issuer) to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), involving aggregate consideration or value in excess of $2.5 million, unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Parent or the Issuer or the relevant Restricted Subsidiary than those that would reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis by the Parent, the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Parent, the Issuer or that Restricted Subsidiary; and
(2) the Parent or the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate payments or value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate payments or value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 35.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Parent, the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) Advisor to the Board of Directors of the Parent or the Issuer. The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Indenture (Gsi Group Inc), Indenture (Gsi Group Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2ii) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1i) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 40.0 million or more, the certificates described in the preceding clause (iA) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1i) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiarySubsidiary unless otherwise required by applicable law;
(2ii) director, officer and employee compensation (including bonuses) and other benefits (including insurance policies, retirement, health, stock option equity compensation and other benefit plans) and indemnification and insurance arrangements;
(3iii) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4iv) any loans and advances permitted by clause (3) of the definition of “Permitted Investments;”
(5v) Restricted Payments of the type described in clause (1) or (2) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.11 hereof;
(including payments vi) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and transactions that would constitute Restricted Payments but for otherwise in compliance with the exclusions terms of this Supplemental Indenture;
(vii) (a) any agreement or transaction in clauses effect on the Issue Date and disclosed in the Prospectus Supplement (1through incorporation by reference or otherwise), as in effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (b) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofa);
(6viii) transactions between or among the Issuer or any Restricted Subsidiary participating in a Qualified Receivables Transaction, on the one hand, and/or any Receivables Subsidiary, on the other hand, or transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(ix) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such joint venture or similar entity; provided that, no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: First Supplemental Indenture (American Greetings Corp), First Supplemental Indenture (American Greetings Corp)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) unless such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more its Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (not involving any other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiaryAffiliate;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plansStock Compensation Plans) and indemnification arrangements and insurance arrangementsreasonable payments to Affiliates in consideration for securities issued in connection therewith;
(3) the entering into of any tax sharing agreement, or the making of payments transactions pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, Tax Liability Allocation and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisIndemnification Agreement;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.07;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Prospectus Supplement, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(8) ordinary overhead arrangements in which any Subsidiary participates;
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and b) the issuance or sale of any payments of cash in lieu of delivering fractional shares in connection therewith);Qualified Equity Interests; and
(710) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or and/or any of the Restricted Subsidiary Subsidiaries, on the one hand, and an Unrestricted SubsidiaryZulily, LLC and/or any of its Subsidiaries, on the other hand, if after giving pro forma effect to any such transaction, no Default shall have occurred and be continuing and the Consolidated Leverage Test would be satisfied.
Appears in 2 contracts
Samples: Third Supplemental Indenture (QVC Inc), Second Supplemental Indenture (QVC Inc)
Limitations on Transactions with Affiliates. (ai) The Issuer From and after the Effective Date, so long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, in one enter into or permit to exist any transaction or a series of related transactionstransactions (including, sellwithout limitation, leasethe purchase, transfer sale, lease or otherwise dispose exchange of any property or the rendering of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee service) with, or for the benefit of, any Affiliate of its Affiliates (each an “Affiliate Transaction”), unless:
having a value greater than $10,000,000 other than (1x) such Affiliate Transaction is Transactions permitted under Section 5.02(f)(ii) and (y) Affiliate Transactions on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Borrower or that such Restricted Subsidiary; and.
(2ii) the Issuer delivers to the Trustee:
All Affiliate Transactions (iand each series of related Affiliate Transactions which are similar or part of a common plan) with respect to any Affiliate Transaction involving aggregate payments or other property with a fair market value expended in excess of $50,000,000 shall be approved by the Issuer Board of Directors of the Borrower or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Borrower or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, the Borrower enters into an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1or a series of related Affiliate Transactions related to a common plan) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority involves an aggregate fair market value of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of more than $50.0 million or more50,000,000, the certificates described in Borrower or such Restricted Subsidiary, as the preceding clause (i) and case may be, shall, prior to the consummation thereof, obtain a written favorable opinion as to the fairness of such Affiliate Transaction transaction or series of related transactions to the Issuer Borrower or such the relevant Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view issued by view, from an Independent Financial AdvisorAdvisor and file the same with the Administrative Agent.
(biii) The foregoing restrictions set forth in this Section 5.02(f) shall not apply to:
(1A) loans, advances and payments of reasonable fees and compensation paid (whether in cash or the issuance of Capital Stock of the Borrower) to and indemnity provided on behalf of, officers, directors, employees or consultants of the Borrower or any Restricted Subsidiary of the Borrower in the ordinary course of business or as determined in good faith by the Borrower’s Board of Directors or senior management;
(B) transactions exclusively between or among (i) the Issuer Borrower and one or more any of its Restricted Subsidiaries or (ii) exclusively between or among such Restricted Subsidiaries, provided, in each case, ; provided that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiarytransactions are not otherwise prohibited by this Agreement;
(2C) director, officer and employee compensation any agreement as in effect as of the Effective Date or any amendment thereto or any transaction contemplated thereby (including bonusespursuant to any amendment thereto) and other benefits (including retirementin any replacement agreement thereto so long as any such amendment or replacement agreement, healthtaken as a whole, stock option and other benefit plans) and indemnification and insurance arrangementsis not materially more disadvantageous to the Lenders than the original agreement as in effect on the Effective Date;
(3D) the entering into any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a result of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basistransaction;
(4E) any Permitted Investmentsemployment, consulting and severance arrangements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(5F) Restricted Payments which are made in accordance with Section 4.08 (including payments the issuance and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) sale of the definition thereof)Qualified Capital Stock;
(6G) any transaction with an Affiliate where the only consideration paid Permitted Investments and Restricted Payments permitted by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);this Agreement; and
(7H) the sale to an Affiliate payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of the Issuer Borrower and the Restricted Subsidiaries in the ordinary course of Equity Interests business to the extent attributable to the ownership or operation of the Issuer that do not constitute Disqualified Equity Interests, Borrower and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiarySubsidiaries.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Equinix Inc), Bridge Credit Agreement (Equinix Inc)
Limitations on Transactions with Affiliates. (a) The Issuer Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5.0 million, other than transactions with entities on an arm’s-length basis existing on the Issue Date and disclosed in the Offering Memorandum, unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 20.0 million, an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) transactions exclusively between or among (ia) the Issuer Company and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, consultant and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Independent Directors;
(3) payments to the entering into Sponsor and any of any tax sharing agreement, or its Affiliates (a) for the making of payments management fee pursuant to any such agreement, between the Issuer Management Agreement or one or more Subsidiaries, on the one hand, and (b) for any other Person financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with which the Issuer acquisitions or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other handdivestitures, which payments payments, in the case of this clause (b), are approved by the Issuer and the Subsidiaries are not materially in excess a majority of the tax liabilities Independent Directors of the Company in good faith not to exceed, with respect to this clause (3), $5.0 million in the aggregate in any calendar year; provided that would no Default shall have been payable by them on occurred and be continuing or occur as a stand-alone basisconsequence thereof;
(4) any Permitted InvestmentsPayments to Parent;
(5) loans and advances permitted by clause (3) of the definition of “Permitted Investment”;
(6) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.07;
(including payments 7) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Offering Memorandum, as in clauses effect on the Issue Date, or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Company in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(68) any transaction with a joint venture or similar entity, including any entity in which the Company owns a minority interest, that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(9) transactions between a Securitization Subsidiary and any Person in which the Securitization Subsidiary has an Investment; and
(10) (a) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer or of any Restricted Subsidiary (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period payments in excess of $15.0 2.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period payments of $50.0 5.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) Advisor to the Board of Directors of the Issuer. The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Independent Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.12;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions disclosed in or expressly contemplated by the Offering Memorandum, as in effect on the Issue Date or any date that would constitute Restricted Payments but for it is disclosed in the exclusions Offering Memorandum that such agreement shall become effective or as thereafter amended or replaced in clauses any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate of the Issuer or of a Restricted Subsidiary where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Seitel Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) Advisor to the Board of Directors of the Issuer. The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) ), travel expense and entertainment reimbursements and advances, and indemnification and insurance arrangements, in each case approved by the Board of Directors or senior management of the Issuer;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess Restricted Payments of the tax liabilities that would have been payable by them on a stand-alone basis;
type described in clause (41) any Permitted Investments;
or (52) of the definition of “Restricted Payments Payment” and which are made in accordance with Section 4.08 4.13;
(including payments 4) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Offering Memorandum, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(65) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiarySubsidiary unless otherwise required by applicable law;
(2) director, officer and employee compensation (including bonuses) and other benefits (including insurance policies, retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case determined to be reasonable by the Independent Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1) or (2) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.11 of this Indenture;
(including payments 6) (x) any agreement in effect on the Reference Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions registration statement (through incorporation by reference or otherwise), of which the prospectus supplement dated May 19, 2006 is a part, relating to the 7 3/8% Senior Notes, as in clauses effect on the Reference Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Reference Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) transactions between or among the Issuer or any Restricted Subsidiary participating in a Qualified Receivables Transaction, on the one hand, and/or any Receivables Subsidiary, on the other hand, or transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(8) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that, other than with respect to the Hatchery, no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (American Greetings Corp)
Limitations on Transactions with Affiliates. (a) The Issuer Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”)) if such Affiliate Transaction involves aggregate consideration in excess of $2.0 million, unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 30.0 million or more, the certificates certificate described in the preceding clause (iA) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (iA) the Issuer Company and one or more Restricted Subsidiaries or (iiB) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or Company and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer Company or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer Company and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) 4.11 of the definition thereof)this Indenture;
(6) any transaction with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns Equity Interests in such Person, provided that no other Affiliate of the Company (other than a Restricted Subsidiary) owns Equity Interests in such Person; or
(7) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Phi Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiarySubsidiary unless otherwise required by applicable law;
(2) director, officer and employee compensation (including bonuses) and other benefits (including insurance policies, retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case determined to be reasonable by the Independent Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1) or (2) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.11 of this Indenture;
(including payments 6) (x) any agreement in effect on the Reference Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions registration statement (through incorporation by reference or otherwise), of which the prospectus supplement dated May 19, 2006 is a part relating to the 7 3/8% Senior Notes, as in clauses effect on the Reference Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Reference Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) transactions between or among the Issuer or any Restricted Subsidiary participating in a Qualified Receivables Transaction, on the one hand, and/or any Receivables Subsidiary, on the other hand, or transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(8) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that, other than with respect to the Hatchery, no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (American Greetings Corp)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above of the first paragraph of this Section 4.09 and a Secretary’s Certificate which that sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 20.0 million or more, the certificates certificate described in the preceding clause (ia) of this Section 4.09 and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Board of Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of "Permitted Investments";
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof)4.07;
(6) any transaction with an Affiliate where to the only consideration paid by extent involving Qualified Equity Interests;
(7) transactions with suppliers or purchasers for the sale or purchase of goods which are fair to the Issuer and its Restricted Subsidiaries and, in the judgment of the Board of Directors, are on terms at least as favorable as might reasonably have been obtained from an unaffiliated third party;
(8) transactions with a Person that is an Affiliate solely because the Issuer or any Restricted Subsidiary is Qualified owns Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an such Person; provided that no Affiliate of the Issuer of (other than a Restricted Subsidiary) owns Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not AffiliatesPerson;
(8) 9) purchases and sales of raw materials or inventory in the ordinary course of business on market terms;
(10) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other an Affiliate is a joint venturer, or with entered into during any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint ventureSuspension Period; or
(911) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiaryany Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “"Affiliate Transaction”"), unless:: ---------------------
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer Company or that such Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that such Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period consideration in excess of $15.0 10.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s 's Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period consideration of $50.0 25.0 million or more, the certificates described in the preceding clause (iA) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (iA) the Issuer Company and one or more Restricted Subsidiaries or (iiB) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company -------- (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) employment contracts, "know-how" agreements, compensation (including stay-on and incentive bonus) arrangements and loans to officers and employees, in each case in the form existing on the Issue Date or representing one or more amendments, modifications, restatements, supplements, extensions, renewals, refinancings, refunds or replacements thereof on terms not materially less favorable to the Company or Restricted Subsidiary, as applicable, than those contained in such contracts, agreements, arrangements or loans in the form existing as of the Issue Date;
(3) indemnities of officers, directors and employees of the Company or any of its Subsidiaries permitted by its certificate of incorporation, bylaws or statutory provisions;
(4) other director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other incentive or benefit plans) and indemnification and insurance arrangements, in each case approved by the Independent Directors;
(35) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or Company and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer Company or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer Company and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(46) any loans and advances permitted by clause (3) of the definition of "Permitted Investments";
(57) Restricted Payments of the type described in clause (1), (2), (3) or (4) of the definition of "Restricted Payment" and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof)4.11.;
(6) 8) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith)Interests;
(79) the any other issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness ;
(including Disqualified Equity Interests10) of the Issuer transactions 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venturePermitted Receivables Financings; or
(9) without limiting clause (8) immediately above, (i11) any transaction with a P&G JV Company agreement as disclosed in the Offering Memorandum as in effect on the Issue Date or any Subsidiary extensions or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiaryrenewals thereof.
Appears in 1 contract
Samples: Indenture (Us Oncology Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which that sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25 million or more, the certificates certificate described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Board of Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of "Permitted Investments;"
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof)4.07;
(6) any transaction with an Affiliate where to the only consideration paid by extent involving Qualified Equity Interests;
(7) transactions with a Person that is an Affiliate solely because the Issuer or any Restricted Subsidiary is Qualified owns Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an such Person; provided that no Affiliate of the Issuer of (other than a Restricted Subsidiary) owns Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not AffiliatesPerson;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other an Affiliate is a joint venturer, or with entered into during any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; orSuspension Period;
(9) without limiting clause sales of Qualified Equity Interests for cash by the Issuer to an Affiliate;
(8) immediately above, (i10) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to agreement as in effect as of the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for Issue Date and disclosed in the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely Offering Memorandum with respect to the consumer diagnostic businessinitial Notes (including agreements disclosed by incorporation by reference therein) or any extension, amendment or modification thereto (so long asas such extension, with respect to this amendment or modification satisfies the requirements set forth in clause (ii), 1) of the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in first paragraph of this Section 4.11(a)(24.09) shall not apply to ordinary course or any transaction contemplated thereby;
(11) transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiaryany Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture;
(12) purchases and sales of raw materials or inventory in the ordinary course of business which satisfy the requirements set forth in clause (1) of the first paragraph of this Section 4.09; or
(13) transactions with suppliers or purchasers for the sale or purchase of goods in the ordinary course of business which satisfy the requirements set forth in clause (1) of the first paragraph of this Section 4.09.
Appears in 1 contract
Samples: Indenture (Massey Energy Co)
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Parent or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Parent or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Parent or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Parent delivers to the Trustee:
Administrative Agent: (ia) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million7,500,000, an Officers’ Certificate of the Parent certifying that such Affiliate Transaction complies with clause (1Section 7.7(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
and (iib) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million 25,000,000 or more, the certificates described in the preceding clause (iSection 7.7(a)(2)(a) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Parent or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 7.7(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Parent and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Parent (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into allocation of employee services among the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basis;
Parent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent); (4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (a)(ii), clause (n) or clause (o) of the definition of “Permitted Investments;
” to the extent that such Permitted Investment under clause (n) or clause (o) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Parent beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Parent)); (5) any agreement as in effect as of the Closing Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 7.7(a)(1)) or any transaction contemplated thereby; (6) Restricted Payments which are made in accordance with Section 4.08 7.4(a) or Section 7.4(b)(1), (including payments 4)-(7); (7) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the definition thereofParent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent);
; or (6) any transaction with an Affiliate where the only consideration paid by the Issuer 8) issuances, sales or any Restricted Subsidiary is other dispositions of Qualified Equity Interests (and any payments of for cash in lieu of delivering fractional shares in connection therewith);
(7) by the sale Parent to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one enter into or conduct any transaction or a series of related transactionstransactions (including the purchase, sellsale, lease, transfer lease or otherwise dispose exchange of any property or the rendering of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, service) with any Affiliate of the Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of the greater of $50,000,000 and 3.50% of Consolidated Tangible Assets unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of the greater of $100,000,000 and 6.50% of Consolidated Tangible Assets, the terms of such Affiliate Transaction have been approved by a majority of the Board of Directors. For purposes of this Subsection 8.5(a), unless:
any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Subsection 8.5(a) if (1x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Subsection 8.5(a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director or consultant of or to the Borrower, any Restricted Subsidiary or any Parent Entity or IPO Vehicle heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle (as determined in good faith by the Borrower, such Subsidiary or such Parent Entity or IPO Vehicle, which determination shall be conclusive), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction between or among any of the Borrower, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Closing Date and set forth on Schedule 8.5 (other than any Transaction Agreements referred to in Subsection 8.5(b)(vii)), or any amendment, supplement, waiver or other modification thereto (so long as such amendment, supplement, waiver or other modification is not disadvantageous in any material respect in the good faith judgment of the Borrower, whose determination shall be conclusive, to the Lenders when taken as a whole as compared to the applicable agreement or instrument as in effect on the Closing Date), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are no fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Issuer Borrower or the relevant Restricted Subsidiary than those that would have been could be obtained at the time in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from with a Person that who is not an Affiliate of the Issuer or that Restricted Subsidiary; andBorrower,
(2vi) any transaction in the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer ordinary course of business, or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted approved by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by Board of Directors, between the Issuer Borrower or any Restricted Subsidiary in and any Affiliate of the Borrower controlled by the Borrower that is a consecutive twelve-month period joint venture or similar entity,
(vii) (1) the execution, delivery and performance of $50.0 million any obligations under any Tax Sharing Agreement or more, payments by the certificates described Borrower or any Restricted Subsidiary to any Parent Entity or IPO Vehicle to pay or permit any Parent Entity or IPO Vehicle to pay any amount pursuant to the Tax Receivables Agreements (excluding the payment of any accelerated lump sum amount payable upon an early termination of a Tax Receivables Agreement to the extent such amount exceeds the amount that would have been payable under such agreement in the preceding clause absence of such acceleration) and any Transaction Agreement, and (2) payments to CD&R or any of its Affiliates (x) for any management, consulting or advisory services pursuant to the CD&R Consulting Agreement or as may be approved by a majority of the Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the Transaction Agreements or are approved by a majority of the Board of Directors in good faith, which determination shall be conclusive, and (z) of all out-of-pocket expenses incurred in connection with such services or activities,
(viii) the Transactions and the Tranche B Effective Date Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions and the Tranche B Effective Date Transactions, including the fees and out-of-pocket expenses of CD&R and its Affiliates,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower,
(x) (i) any investment by any CD&R Investor in securities or loans of the Borrower or any of its Restricted Subsidiaries (and a written opinion payment of out-of-pocket expenses incurred by any CD&R Investor in connection therewith) so long as to such investments are being offered by the fairness of such Affiliate Transaction to Borrower or the Issuer or such applicable Restricted Subsidiary from a financial point generally to investors (other than CD&R Investors) on the same or more favorable terms and (ii) payments to any CD&R Investor in respect of view issued by an Independent Financial Advisor.
(b) The securities or loans of the Borrower or any of its Restricted Subsidiaries contemplated in the foregoing restrictions shall not apply to:
(1) transactions exclusively between or among subclause (i) or that were acquired from Persons other than the Issuer Borrower and one or more Restricted Subsidiaries or (ii) its Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) terms of the definition thereof);such securities or loans, and
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7xi) the sale pledge of Capital Stock, Indebtedness or other securities of any Unrestricted Subsidiary or joint venture to an Affiliate of lenders to support the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer in connection with an offering or other obligations of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer Unrestricted Subsidiary or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any respectively, owed to such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiarylenders.
Appears in 1 contract
Samples: Credit Agreement (Core & Main, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction is on terms that are no less favorable to the Issuer Parent or the relevant Restricted Subsidiary than those that would may have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Parent or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Parent or that Restricted Subsidiary; and
(2ii) the Issuer Parent delivers to the Note Trustee:
(i1) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 2.0 million, an Officers’ Certificate of the Parent certifying that such Affiliate Transaction complies with clause (1a)(i) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii2) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause (ia)(ii)(1) and (A) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Parent or such Restricted Subsidiary from a financial point of view or (B) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1i) transactions exclusively between or among (i1) the Issuer Parent and one or more Restricted Subsidiaries or (ii2) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Parent (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2ii) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3iii) the entering into allocation of employee services among the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basisParent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent);
(4iv) any loans and advances permitted by clause (c) of the definition of “Permitted Investments”;
(5v) any agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (a)(i) of the first paragraph of this Section 4.09) or any transaction contemplated thereby;
(vi) Restricted Payments which are made in accordance with Section 4.08 4.07 and Permitted Investments (including payments and transactions that would constitute Restricted Payments but for the exclusions other than any Permitted Investment made in clauses accordance with clause (1) and (2m) of the definition thereofof “Permitted Investments” to the extent that such Permitted Investment is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Parent beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Parent));
(6vii) licensing of trademarks to, and allocation of overhead, sales and marketing, travel and like expenses among, the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any transaction with an Affiliate where such Subsidiary or Joint Venture, no officer, director or stockholder of the only consideration paid by the Issuer or Parent beneficially owns any Restricted Subsidiary is Qualified Equity Interests in such Subsidiary or Joint Venture (and any payments other than indirectly through ownership of cash Equity Interests in lieu of delivering fractional shares in connection therewiththe Parent);
(7viii) sales or other dispositions of Qualified Equity Interests for cash by the sale Parent to an Affiliate of Affiliate;
(ix) an agreement under which the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity InterestsIssuer, and the sale to an Affiliate of the Issuer or, as applicable, a Joint Venture, incurs no more than $60 million of Indebtedness (including Disqualified Equity Interests) of in the Issuer aggregate 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms development of the agreements governing such joint ventureXxxxxxxx Property; or
(9x) without limiting clause (8) immediately above, (i) any a transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to contemplated by the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryRMV Purchase Agreement.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, with or for the benefit of, any Affiliate involving aggregate consideration in excess of $2.5 million (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
, and (2) the Issuer delivers to the Trustee:
Trustee (i) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate of the Issuer certifying that such Affiliate Transaction complies with clause Section 4.07(a)(1), and either (1x) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority the Board of the Independent Directors approving such Affiliate TransactionTransaction or (y) a written opinion or appraisal of the type described in clause (ii) of this Section 4.07(a); and
and (ii) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of exceeding $50.0 million or more25.0 million, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into of any tax sharing agreement, or the making of payments pursuant to Permitted Investment (other than any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person Permitted Investment made in accordance with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (2) of the tax liabilities that would have been payable by them on a stand-alone basis;
definition of “Permitted Investments” ); (4) any Permitted Investments;
agreement as in effect as of the Issue Date or any extension, amendment, modification, restatement or renewal thereof (so long as any such extension, amendment, modification, restatement or renewal satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
4.04; (6) any issuances, sales or other dispositions of Qualified Equity Interests by the Issuer to an Affiliate; (7) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and the Restricted Subsidiaries (including pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the disinterested members of the Board of Directors of the Issuer, such transactions are on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction with an Affiliate where the only consideration paid by the Issuer or any such Restricted Subsidiary with an unrelated Person; (8) any agreement between any Person and an Affiliate of such Person existing at the time such Person is Qualified Equity Interests (acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, and any payments amendment thereto, so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of cash the Board of Directors of the Issuer, when taken as a whole, as compared to the applicable agreement as in lieu effect on the date of delivering fractional shares in connection therewith);
such acquisition or merger; and (79) transactions with a Person (other than an Unrestricted Subsidiary of the sale to Issuer) that is an Affiliate of the Issuer of Equity Interests of solely because the Issuer that do not constitute Disqualified owns, directly or through a Restricted Subsidiary, an Equity InterestsInterest in, and the sale to an Affiliate of the Issuer of Indebtedness or controls (including Disqualified Equity Interests) of the Issuer in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical pursuant to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basisshareholders agreement), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryPerson.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Parent or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Parent or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Parent or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Parent delivers to the Trustee:
: (ia) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million2,000,000, an Officers’ Certificate of the Parent certifying that such Affiliate Transaction complies with clause (1Section 4.07(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
and (iib) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million 20,000,000 or more, the certificates described in the preceding clause (i4.07(a)(2)(a) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Parent or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Parent and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Parent (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into allocation of employee services among the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basis;
Parent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent); (4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (1)(b) or with clause (13) of the definition of “Permitted Investments;
” to the extent that such Permitted Investment under clause (13) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Parent beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Parent)); (5) any agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (6) Restricted Payments which are made in accordance with Section 4.08 4.04(a) or Section 4.04(b)(1), (including payments 4)-(8); (7) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the definition thereofParent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent);
; or (6) any transaction with an Affiliate where the only consideration paid by the Issuer 8) issuances, sales or any Restricted Subsidiary is other dispositions of Qualified Equity Interests (and any payments of for cash in lieu of delivering fractional shares in connection therewith);
(7) by the sale Parent to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), ) involving aggregate value in excess of $5,000,000 unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Parent or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Parent or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Parent or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Parent delivers to the Trustee:
: (ia) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million7,500,000, an Officers’ Certificate of the Parent certifying that such Affiliate Transaction complies with clause (1Section 4.07(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
and (iib) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million 25,000,000 or more, the certificates described in the preceding clause (i4.07(a)(2)(a) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Parent or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Parent and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Parent (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into allocation of employee services among the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basis;
Parent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent); (4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (1)(b), clause (15) or clause (16) of the definition of “Permitted Investments;
” to the extent that such Permitted Investment under clause (15) or clause (16) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Parent beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Parent)); (5) any agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (6) Restricted Payments which are made in accordance with Section 4.08 4.04(a) or Section 4.04(b)(1), (including payments 4)-(12); (7) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the definition thereofParent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent);
; or (6) any transaction with an Affiliate where the only consideration paid by the Issuer 8) issuances, sales or any Restricted Subsidiary is other dispositions of Qualified Equity Interests (and any payments of for cash in lieu of delivering fractional shares in connection therewith);
(7) by the sale Parent to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Transactions with Affiliates. (a) The Issuer will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”)) involving aggregate value expended or received by the Company or any Restricted Subsidiary in excess of $3,000,000, unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Company delivers to the Trustee:
(i) , with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Company or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million10,000,000, an Officers’ Certificate of the Company certifying that such Affiliate Transaction complies with clause (1Section 4.07(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a the majority of the Independent members of the Board of Directors of the Company approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Company and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) ), reimbursements of expenses and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into of any tax sharing agreement, or the making of payments pursuant to Permitted Investment (other than any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person Permitted Investment made in accordance with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (2) of the tax liabilities that would have been payable by them on a stand-alone basis;
definition of “Permitted Investments”); (4) any Permitted Investments;
agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (5) Restricted Payments which are made pursuant to Section 4.04; (6) issuances, sales or other dispositions of Qualified Equity Interests of the Company to an Affiliate or the making of any contribution to the common equity of the Company by an Affiliate; (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 the business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the 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 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; (8) the allocation of employee services among the Company, its Subsidiaries and the joint ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case a director or stockholder of the Company beneficially owns Equity Interests in such Subsidiary or joint venture (other than indirectly through ownership of Equity Interests in the Company), the principal transaction with or formation of the joint venture has been approved in accordance with the procedures described in Section 4.08 4.07 (including payments other than this Section 4.07(b)(8)); (9) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Company, its Subsidiaries and the joint ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case a director or stockholder of the definition thereof);
(6) any Company beneficially owns Equity Interests in such Subsidiary or joint venture, the principal transaction with or formation of the joint venture has been approved in accordance with the procedures described in Section 4.07 (other than this Section 4.07(b)(9)); (10) transactions with a Person (other than an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary Unrestricted Subsidiary) that is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interests of the Issuer that do not constitute Disqualified Equity InterestsInterest in, or controls, such Person; and the sale to (11) any agreement between any Person and an Affiliate of such Person existing at the Issuer of Indebtedness (including Disqualified Equity Interests) of time such Person is acquired by or merged into the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer Company or a Restricted Subsidiary is a joint venturer Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic businessamendment thereto, so long asas any such amendment is not disadvantageous to the Holders in the good faith judgment of the Board of Directors of the Company, with respect when taken as a whole, as compared to this clause (ii), the charges for manufacturing applicable agreement as in effect on the date of such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer acquisition or any Restricted Subsidiary and an Unrestricted Subsidiarymerger.
Appears in 1 contract
Samples: Indenture (New Home Co Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, with or for the benefit of, any Affiliate involving aggregate consideration in excess of $1.0 million (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying the Independent Directors determine in good faith that such Affiliate Transaction complies with clause Section 4.07(a)(1); and (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in Issuer or the preceding clause applicable Restricted Subsidiary obtains (ix) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including employee discounts, retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into allocation of employee services among the Issuer, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business (as determined in good faith by the Issuer); provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making Affiliate of payments pursuant to any such agreement, between the Issuer beneficially owns any Equity Interests in such Subsidiary or one or more Subsidiaries, on Joint Venture (other than indirectly through ownership of Equity Interests in the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
Issuer); (4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (l)(b) or with clause (20), (21) or (22) of the definition of “Permitted Investments;
” to the extent that such Permitted Investment under clause (20), (21) or (22) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or Affiliate of the Issuer beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Issuer)); (5) any agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (6) Restricted Payments which are made in accordance with Section 4.08 4.04; (7) licensing of trademarks to, and allocation of overhead, sales and marketing, travel and like expenses among the Issuer, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business (as determined in good faith by the Issuer); provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or Affiliate of the Issuer beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Issuer); (8) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and its Restricted Subsidiaries (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1pursuant to joint venture agreements) and (2) otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the definition thereof);
members of the Board of Directors or Senior Management of the Issuer, such transactions are on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person; (69) 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, or controls, such Person so long as such transaction complies with Section 4.07(a)(1) in the reasonable determination of the Board of Directors or Senior Management of the Issuer; (10) any transaction with agreement between any Person and an Affiliate where of such Person existing at the only consideration time such Person is acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, and any amendment thereto, so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of the Board of Directors or senior management of the Issuer, when taken as a whole, as compared to the applicable agreement as in effect on the date of such acquisition or merger; (11) reimbursements of sales tax amounts paid on the Issuer’s behalf by purchasing entities or agents in the ordinary course of business of the Issuer and its Restricted Subsidiaries (as determined in good faith by the Issuer); (12) the redemption of the 2017 Notes as described in the Final Offering Memorandum under the heading “Use of Proceeds”; (13) any employment, consultancy, advisory or other compensatory agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments with current, former or future directors, officers or employees of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary in the ordinary course of business and payments pursuant thereto; or (14) issuances, sales or other dispositions of Qualified Equity Interests by the Issuer to an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Samples: Indenture (WCI Communities, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”)) involving aggregate value expended or received by the Company or any Restricted Subsidiary in excess of $1,000,000, unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Company delivers to the Trustee:
(i) , with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Company or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million7,500,000, an Officers’ Certificate of the Company certifying that such Affiliate Transaction complies with clause (1Section 4.07(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a the majority of the Independent members of the Board of Directors of the Company approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Company and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) ), reimbursements of expenses and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into of any tax sharing agreement, or the making of payments pursuant to Permitted Investment (other than any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person Permitted Investment made in accordance with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (2) of the tax liabilities that would have been payable by them on a stand-alone basis;
definition of “Permitted Investments”); (4) any Permitted Investments;
agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (5) Restricted Payments which are made pursuant to Section 4.04; (6) issuances, sales or other dispositions of Qualified Equity Interests of the Company to an Affiliate or the making of any contribution to the common equity of the Company by an Affiliate; (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 the business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the 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 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; (8) the allocation of employee services among the Company, its Subsidiaries and the joint ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case a director or stockholder of the Company beneficially owns Equity Interests in such Subsidiary or joint venture (other than indirectly through ownership of Equity Interests in the Company), the principal transaction with or formation of the joint venture has been approved in accordance with the procedures described in Section 4.08 4.07 (including payments other than this Section 4.07(b)(8)); (9) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Company, its Subsidiaries and the joint ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case a director or stockholder of the definition thereof);
(6) any Company beneficially owns Equity Interests in such Subsidiary or joint venture, the principal transaction with or formation of the joint venture has been approved in accordance with the procedures described in Section 4.07 (other than this Section 4.07(b)(9)); (10) transactions with a Person (other than an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary Unrestricted Subsidiary) that is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interests of the Issuer that do not constitute Disqualified Equity InterestsInterest in, or controls, such Person; or (11) any agreement between any Person and the sale to an Affiliate of such Person existing at the Issuer of Indebtedness (including Disqualified Equity Interests) of time such Person is acquired by or merged into the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer Company or a Restricted Subsidiary is a joint venturer Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic businessamendment thereto, so long asas any such amendment is not disadvantageous to the Holders in the good faith judgment of the Board of Directors of the Company, with respect when taken as a whole, as compared to this clause (ii), the charges for manufacturing applicable agreement as in effect on the date of such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer acquisition or any Restricted Subsidiary and an Unrestricted Subsidiarymerger.
Appears in 1 contract
Samples: Indenture (New Home Co Inc.)
Limitations on Transactions with Affiliates. Until the Notes receive an Investment Grade rating from both Rating Agencies (a) The after which time this Section 4.10 shall no longer be in effect), the Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would may have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case consistent with past practices;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments”;
(4) any Permitted Investments;agreement as in effect as of the Issue Date and described in the Offering Memorandum or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated thereby; or
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary4.08.
Appears in 1 contract
Samples: Indenture (M I Homes Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of $60,000 (an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would may have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer of $1.0 million or more, an Officers' Certificate certifying that such Affiliate Transaction complies with clause (1) above;
(b) with respect to any Restricted Subsidiary in a consecutive twelve-month period Affiliate Transaction involving aggregate value in excess of $15.0 2.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s 's Certificate 66 -59- which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iic) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause (ib) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of "Permitted Investments";
(4) any Permitted Investmentsagreement as in effect as of the Issue Date (including the Wellx Xxxgo Credit Agreement) or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated thereby;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of "Restricted Payment" and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transaction with an Affiliate where the only consideration paid sales of Qualified Equity Interests for cash by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Samples: Indenture (Meritage Corp)
Limitations on Transactions with Affiliates. Until the Notes receive an Investment Grade rating from both Rating Agencies (a) The after which time this Section 4.10 shall no longer be in effect), the Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate consideration in excess of $10.0 million, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance loan or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that such Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 20.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 30.0 million or more, the certificates described in the preceding clause (ia) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries; provided, providedhowever, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case consistent with past practices;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments”;
(4) any Permitted Investmentsagreement as in effect as of the Issue Date and described in the Offering Memorandum or any extension, amendment or modification of such agreement (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated by such agreement;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transactions with The M/I Homes Foundation or other transactions in the ordinary course of business with M/I Financial, LLC or other Unrestricted Subsidiaries that are engaged in the business of originating mortgages on behalf of, or providing title services with respect to, new home customers of the Issuer and its homebuilding Subsidiaries; provided, however, that such transactions are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could be obtained in a comparable transaction with at such time on an Affiliate where the only consideration paid arm’s-length basis by the Issuer or any such Restricted Subsidiary from a Person that is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to not an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer in connection with an offering of or such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (M/I Homes, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would may have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 1.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s 's Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 5.0 million or more, the certificates described in the preceding clause (ia) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of "Permitted Investments";
(4) any Permitted Investmentsagreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated thereby;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of "Restricted Payment" and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transaction with an Affiliate where the only consideration paid sales of Qualified Equity Interests for cash by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Samples: Indenture (Matria Healthcare Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate ({an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 1 0.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above of the first paragraph of this Section 4.09 and a Secretary’s Certificate which that sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 of$20.0 million or more, the certificates certificate described in the preceding clause (ia) of this Section 4.09 and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, provided, ; provided in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Board of Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments Payments, which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof)4.07;
(6) any transaction with an Affiliate where to the only consideration paid by extent involving Qualified Equity Interests;
(7) transactions with suppliers or purchasers for the sale or purchase of goods which are fair to the Issuer and its Restricted Subsidiaries and, in the judgment of the Board of Directors, are on terms at least as favorable as might reasonably have been obtained from an unaffiliated third party;
(8) transactions with a Person that is an Affiliate solely because the Issuer or any Restricted Subsidiary is Qualified owns Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an such Person; provided that no Affiliate of the Issuer of (other than a Restricted Subsidiary) owns Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not AffiliatesPerson;
(8) 9) purchases and sales of raw materials or inventory in the ordinary course of business on market terms;
(10) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other an Affiliate is a joint venturer, or with entered into during any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint ventureSuspension Period; or
(911) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiaryany Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that such Restricted Subsidiary from a Person that is not with an Affiliate of the Issuer or that Restricted Subsidiaryunrelated Person; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period consideration in excess of $15.0 5.0 million, a resolution of the Board of Directors of the Issuer set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above this Section 4.14 and a Secretary’s Certificate which sets forth and authenticates a resolution that such Affiliate Transaction has been adopted approved by a majority of the Independent Directors approving such Affiliate Transactiondisinterested members of the Board of Directors; and
(iib) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value expended by the Issuer or any Restricted Subsidiary consideration in a consecutive twelve-month period excess of $50.0 million or more10.0 million, the certificates described in the preceding clause (i) and a written an opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisoraccounting, appraisal or investment banking firm of national standing.
(b) The foregoing restrictions following items shall not apply to:be deemed to be Affiliate Transactions and, therefore, will not be subject to Section 4.14(a):
(1) transactions exclusively between or among (i) reasonable director, officer, employee and consultant compensation, benefit, reimbursement and indemnification agreements, plans and arrangements entered into by the Issuer and one or more any of its Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate the ordinary course of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiarybusiness;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangementstransactions between or among the Issuer and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the entering into Issuer) that is an Affiliate of any tax sharing agreementthe Issuer solely because the Issuer owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) to the making of payments pursuant to any such agreement, between extent that the Issuer or one or more Subsidiariesof its Restricted Subsidiaries are members of a consolidated, on combined or similar income tax group of which a direct or indirect parent of the one handIssuer is the common parent, and any payment of dividends or other Person with which distributions by the Issuer or one or more of its Restricted Subsidiaries to the extent necessary to pay, and that are used to pay, any income taxes of such Subsidiaries tax group that are required or permitted attributable to file a consolidated tax return or with which the Issuer or such and/or its Restricted Subsidiaries and are part of a consolidated group for tax purposes, on the other hand, which payments not payable directly by the Issuer and and/or its Restricted Subsidiaries; provided that the Subsidiaries are amount of any such dividends or distributions (plus any such taxes payable directly by the Issuer and/or its Restricted Subsidiaries) shall not materially in excess exceed the amount of the tax liabilities such taxes that would have been payable directly by them on the Issuer and/or its Restricted Subsidiaries had the Issuer been the common parent of a stand-alone basis;
(4) any Permitted Investmentsseparate tax group that included only the Issuer and its Restricted Subsidiaries;
(5) Restricted Payments any issuance of Qualified Equity Interests or any issuance by HLHC of Equity Interests other than Disqualified Stock and the granting or performance of registration rights in respect of any such Equity Interests, which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for rights have been approved by the exclusions in clauses (1) and (2) Board of Directors of the definition thereof)Issuer or HLHC, as applicable;
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith)Payments that do not violate Section 4.11;
(7) the sale loans or advances to an Affiliate employees of the Issuer or any of Equity Interests its Restricted Subsidiaries in the ordinary course of business in an aggregate amount not to exceed $5.0 million at any time outstanding;
(8) payments by the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate or on behalf of the Issuer of Indebtedness (including Disqualified Equity Interests) any direct or indirect parent of the Issuer in connection with an offering amount sufficient to pay out-of-pocket legal, accounting and filing and other general corporate overhead costs actually incurred by any direct or indirect parent of such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer in the ordinary course of business and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to approved by the joint venture agreement or related agreements for such joint venture, including any transfers Board of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms Directors of the agreements governing such joint venture; orIssuer;
(9) without limiting the agreements described in the Offering Circular under the caption “Certain Relationships and Related Party Transactions,” as in effect on the date of this Indenture or as amended thereafter (so long as the amended agreement is not more disadvantageous to the Holders in any material respect than such agreement immediately prior to such amendment), or any transaction contemplated thereby (other than payment of management fees referred to in clause (8) immediately above10) below));
(10) so long as no Event of Default exists and so long as any agreements governing such management fees provide that upon an acceleration of maturity of the Notes there shall be no payment of such management fees until the Notes are paid in full or such acceleration is rescinded and annulled, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof the payment of management fees paid pursuant to the P&G JV Agreements or agreement described in the Offering Circular under the caption “Certain Relationships and Related Party Transactions Management Agreement,” as in effect on the date hereof; and
(ii11) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to in the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between of business at rates comparable to those offered to third party customers to an Affiliate which would constitute an Affiliate Transaction solely as a result of the Issuer or any of its Restricted Subsidiary and an Unrestricted SubsidiarySubsidiaries being in or under common control with such Affiliate.
Appears in 1 contract
Samples: Indenture (Horizon Lines, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”)) including aggregate payments or consideration in excess of $10.0 million, unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 20.0 million, the Issuer delivers to the Trustee an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors directors of the Issuer who are disinterested with respect to such Affiliate Transaction, approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries Subsidiaries; or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another a Restricted Subsidiary) owns any Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) ), retention payments, payments pursuant to a long-term incentive plan or other employee benefit plan, reimbursement of expenses and other benefits (including retirement, health, stock option and other benefit plans) ), indemnification arrangements, compensation, employment and indemnification severance agreements, to or with directors, officers and insurance arrangementsemployees of the Issuer or any Restricted Subsidiary or parent company of the Issuer;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investmentspayment made to Parent (or any other direct or indirect parent company) to be used by Parent (or such parent company) solely (A) to pay its franchise taxes and other fees required to maintain its corporate existence and (B) to pay for general corporate and overhead expenses (including salaries and other compensation (including salary, bonus and benefits) of the employees and directors, board activities, insurance, legal (including litigation, judgments and settlements), accounting, corporate reporting and filing, administrative and other general operating expenses) incurred by Parent (or such parent company) in the ordinary course of business;
(5) loans (or cancellation of loans) and advances permitted by clause (3) of the definition of “Permitted Investments”;
(6) payments to Sponsor or an Affiliate or Related Party thereof in respect of financial advisory, financing, underwriting or placement services, investment banking activities or management and consulting services rendered to the Issuer and the Restricted Subsidiaries, which payments are approved by a majority of the Board of Directors who are disinterested in such payment; provided that no Default described in Section 6.01(1), (2), (3), (7) or (8) shall have occurred and be continuing or occur as a consequence thereof;
(7) any Restricted Payments which are made in accordance with Section 4.08 4.11 and any Permitted Investments (including payments and transactions that would constitute Restricted Payments but for the exclusions other than Permitted Investments described in clauses (1) and or (2) of the definition thereofof Permitted Investments);
(68) (i) transactions pursuant to the Existing Tax Sharing Agreement, (ii) entering into an agreement that provides registration rights to the shareholders of the Issuer or Parent (or any other direct or indirect parent company) or amending any such agreement with shareholders of the Issuer or Parent (or any other direct or indirect parent company) and (iii) the performance of such agreements;
(9) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(10) any merger, consolidation or reorganization of the Issuer with an Affiliate, solely for the purposes of (a) forming a holding company or (b) reincorporating the Issuer in a new jurisdiction;
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (b) the issuance or sale of any Qualified Equity Interests;
(12) (a) any agreement in effect on the Issue Date and disclosed in the Offering Circular, as in effect on the Issue Date or as thereafter amended or replaced in any payments manner, that, taken as a whole, is not more adverse to the interests of cash the Holders in lieu of delivering fractional shares any material respect than such agreement as it was in connection therewitheffect on the Issue Date or (b) any transaction pursuant to any agreement referred to in the immediately preceding clause (a);
(713) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale to an Affiliate of goods or services, in each case in the Issuer ordinary course of Equity Interests business and otherwise in compliance with the terms of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliatesthis Indenture;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(914) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of the Issuer or any direct or indirect parent of the Issuer; provided that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(15) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary and an Unrestricted Subsidiaryfrom a financial point of view or meets the requirements of Section 4.14(a)(1); or
(16) any transaction effected as part of a Qualified Receivables Financing.
Appears in 1 contract
Samples: Indenture (Ply Gem Holdings Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s 's Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries; PROVIDED, providedHOWEVER, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of "Permitted Investments";
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments 4.09 and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) purchase, repayment or redemption of the definition 9% Subordinated Notes, 10% Subordinated Notes and 3% Convertible Notes at or prior to the maturity thereof);, in each case in an amount not in excess of the terms of such Indebtedness as in effect on the Issue Date; or
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);Interests.
(7c) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in clause (2) of Section 4.11(a)(24.12(a) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’sarm's-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s 's Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause (iA) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (iA) the Issuer Company and one or more Restricted Subsidiaries or (iiB) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or Company and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer Company or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer Company and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of "Permitted Investments";
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) 4.11 of the definition thereof);this Indenture; or
(6) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate payments or consideration in excess of $1.0 million, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 20.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including pursuant to any employment agreement or any retirement, health, stock option and or other benefit plansplan) and indemnification and insurance arrangements, in each case, as determined in good faith by the Issuer’s Board of Directors or senior management;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) any Restricted Payments which are made in accordance with Section 4.08 4.11;
(including payments and transactions that would constitute Restricted Payments but for 6) (x) any agreement in effect on the exclusions Issue Date, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer or (b) the issuance or sale of any Qualified Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryIssuer.
Appears in 1 contract
Samples: Indenture (Hercules Offshore, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “"Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: First Supplemental Indenture (Inverness Medical Innovations Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including pursuant to any employment agreement or any retirement, health, stock option and or other benefit plansplan) and indemnification and insurance arrangements, in each case, as determined in good faith by the Issuer’s Board of Directors or senior management;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) scheduled payments of Earn Out Obligations of $5.0 million in any fiscal year of the Issuer;
(5) any Permitted Investments;
(56) any Restricted Payments which are made in accordance with Section 4.08 4.11;
(including payments and transactions that would constitute Restricted Payments but for 7) (x) any agreement in effect on the exclusions Issue Date, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(68) any transaction with a Person (other than an Unrestricted Subsidiary of the Issuer) which would constitute an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) unless such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more its Wholly-Owned Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (not involving any other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiaryAffiliate;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plansStock Compensation Plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments transactions pursuant to any such agreement, between the Issuer or one or more Subsidiaries, Tax Liability Allocation and Indemnification Agreement as in effect on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisExisting Notes Issue Date;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.07;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Offering Memorandum, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(8) ordinary overhead arrangements in which any Subsidiary participates; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiarySubsidiary unless otherwise required by applicable law;
(2) director, officer and employee compensation (including bonuses) and other benefits (including insurance policies, retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case determined to be reasonable by the Independent Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1) or (2) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.11 of this Indenture;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions registration statement (through incorporation by reference or otherwise), of which the prospectus supplement dated May 19, 2006 is a part, relating to the Notes, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) transactions between or among the Issuer or any Restricted Subsidiary participating in a Qualified Receivables Transaction, on the one hand, and/or any Receivables Subsidiary, on the other hand, or transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(8) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that, other than with respect to the Hatchery, no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (American Greetings Corp)
Limitations on Transactions with Affiliates. (a) The Issuer Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one enter into or conduct any transaction or a series of related transactionstransactions (including the purchase, sellsale, lease, transfer lease or otherwise dispose exchange of any property or the rendering of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, service) with any Affiliate of the Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of the greater of $27,000,000 and 10.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, the terms of such Affiliate Transaction have been approved by a majority of the Board of Directors. For purposes of this Subsection 8.5(a), unless:
any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Subsection 8.5(a) if (1x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Subsection 8.5(a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment, consulting or other similar service contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director or consultant of or to the Borrower, any Restricted Subsidiary or any Parent Entity heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Borrower or any of its Subsidiaries or any Parent Entity (as determined in good faith by the Borrower, such Subsidiary or such Parent Entity), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction between or among any of the Borrower, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Closing Date and set forth on Schedule 8.5, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are no fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Issuer Borrower or the relevant Restricted Subsidiary than those that would have been could be obtained at the time in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from with a Person that who is not an Affiliate of the Issuer or that Restricted Subsidiary; andBorrower,
(2vi) any transaction in the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer ordinary course of business, or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted approved by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period Board of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreementDirectors, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer Borrower or any Restricted Subsidiary and an Unrestricted Subsidiaryany Affiliate of the Borrower controlled by the Borrower that is a joint venture or similar entity,
(vii) payments to any Sponsor or any member of the Sponsor Group (x) for any management, consulting or advisory services, or in respect of financing, underwriting or placement services or in respect of other investment banking activities (if any), (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are approved by a majority of the Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection with such services or activities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of the Sponsors and their respective Affiliates,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower,
(x) any investment by any member of the Sponsor Group in securities of the Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any member of the Sponsor Group in connection therewith) so long as such securities are being offered generally to other investors (other than members of the Sponsor Group) on the same or more favorable terms, and
(xi) intercompany transactions undertaken in good faith (as determined by a Responsible Officer of the Borrower in good faith) for the purpose of improving the consolidated tax efficiency of Holdings and its Subsidiaries and not for the purpose of circumventing any covenant set forth herein.
Appears in 1 contract
Samples: Incremental Term Loan Agreement (Floor & Decor Holdings, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly make any payment to, or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of the greater of (x) $15.0 million and (y) 6.0% of EBITDA for the Applicable Measurement Period, unless:
(1) such Affiliate Transaction is on terms that are no not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at by the Issuer or such time Restricted Subsidiary with an unrelated Person on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiarybasis; and
(2) the Issuer delivers to the Trustee:
(i) Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value expended by the Issuer payments or any Restricted Subsidiary in a consecutive twelve-month period consideration in excess of the greater of (x) $15.0 million30.0 million and (y) 12.0% of EBITDA for the Applicable Measurement Period, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above above.
(b) The foregoing provisions shall not apply to the following:
(1) (i) transactions between or among the Issuer and/or any of its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) any merger or consolidation of the Issuer or any direct or indirect parent of the Issuer; provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger or consolidation is otherwise in compliance with respect the terms of this Indenture;
(2) Permitted Investments and Restricted Payments permitted by Section 1010;
(3) transactions pursuant to compensatory, benefit and incentive plans and similar agreements with officers, directors, managers or employees of the Issuer or any Affiliate Transaction involving aggregate value expended by of its Restricted Subsidiaries;
(4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, former, current or future officers, directors, managers, employees or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary Subsidiary;
(5) transactions in a consecutive twelve-month period of $50.0 million which the Issuer or moreany Restricted Subsidiary, as the certificates described in the preceding clause (i) and a written opinion as case may be, delivers to the fairness of Trustee a letter from an Independent Financial Advisor stating that such Affiliate Transaction transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall or stating that the terms are not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant materially less favorable to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or Restricted Subsidiary with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, an unrelated Person on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a standan arm’s-alone length basis;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any agreement or arrangement in effect as of the Issue Date or, on substantially the terms described in the Offering Document, the Completion Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date or, on substantially the terms described in the Offering Document, the Completion Date) or any transaction or payments contemplated thereby;
(7) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date or, on substantially the terms described in the Offering Document, the Completion Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Issuer or any Restricted Subsidiary of, obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date or the Completion Date, as applicable, 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 when taken as a whole;
(8) the Transactions and the payment of all fees and expenses related to the Transactions, in each case, as contemplated in the Offering Document;
(9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an Affiliate where unaffiliated party;
(10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performance of customary registration rights;
(11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(12) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, officers, directors, managers or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by the Issuer in good faith;
(13) any transaction in which the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified consists of Equity Interests (and any payments other than Disqualified Stock) of cash in lieu of delivering fractional shares in connection therewith)the Issuer;
(714) payments to any future, current or former employee, director, manager, officer, manager or consultant of the sale to an Affiliate Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer of Equity Interests of the Issuer 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 or severance agreements, stock option plans, severance 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 that do not constitute Disqualified Equity Interestsare, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of in each case, approved by the Issuer 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 who are not Affiliatesgood faith;
(8) 15) any transaction with a joint venture in Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary is a joint venturer owns an Equity Interest in or otherwise controls such Person;
(16) payments by the Issuer (and no other Affiliate is a joint venturer, any direct or with any Subsidiary thereof or other joint venturer therein, indirect parent company of the Issuer) and its Subsidiaries pursuant to tax sharing agreements among the joint venture agreement Issuer (and any direct or related agreements indirect parent company of the Issuer) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such joint venturefiscal year were the Issuer, including any transfers of any equity or ownership interests in its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such joint venture to any other joint venturer therein pursuant to the performance direct or exercise of any rights or obligations to make such transfer under the terms indirect parent company of the agreements governing such joint venture; orIssuer;
(9) without limiting clause (8) immediately above, (i17) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions lease entered into between the Issuer or any Restricted Subsidiary and any Affiliate of the Issuer in the ordinary course of business;
(18) intellectual property licenses in the ordinary course of business;
(19) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person;
(20) pledges of Equity Interests of Unrestricted SubsidiarySubsidiaries;
(21) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and
(22) any merger, consolidation or reorganization of the Issuer or Restricted Subsidiary with an Affiliate of the Issuer or Restricted Subsidiary solely for the purpose of reincorporating the Issuer or Restricted Subsidiary in a new jurisdiction.
Appears in 1 contract
Samples: Indenture (Aar Corp)
Limitations on Transactions with Affiliates. Until the Notes receive an Investment Grade rating from both Rating Agencies (a) The after which time this Section 4.10 shall no longer be in effect), the Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate consideration in excess of $2.0 million, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance loan or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that such Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries; provided, providedhowever, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case consistent with past practices;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments”;
(4) any Permitted Investmentsagreement as in effect as of the Issue Date and described in the Offering Memorandum or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated thereby;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transactions in the ordinary course of business with M/I Financial Corp. or other Unrestricted Subsidiaries that are engaged in the business of originating mortgages on behalf of new home customers of the Issuer and its homebuilding Subsidiaries; provided, however, that such transactions are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could be obtained in a comparable transaction with at such time on an Affiliate where the only consideration paid arm’s-length basis by the Issuer or any such Restricted Subsidiary from a Person that is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to not an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer in connection with an offering of or such Indebtedness in a market transaction and on terms substantially identical to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (M I Homes Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 1.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above of this Section 4.10(a) and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause subsection (i2)(a) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions in subsection (a) shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries Guarantors or (iib) Restricted Subsidiaries, Guarantors; provided, in each case, that no Affiliate of the Issuer Person (other than another Restricted Subsidiarythe Issuer or a Guarantor) owns Equity Interests of any such Restricted SubsidiaryGuarantors;
(2) reasonable director, officer and employee compensation (including bonusesbonuses and equity compensation) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements provided for officers, directors and insurance arrangementsemployees of the Issuer, in each case approved by the Independent Directors;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments;” or
(4) any Permitted Investments;
(5) Restricted Payments which of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” that are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary4.08.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which that sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates certificate described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Board of Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof)4.07;
(6) any transaction with an Affiliate where to the only consideration paid by extent involving Qualified Equity Interests;
(7) transactions with a Person that is an Affiliate solely because the Issuer or any Restricted Subsidiary is Qualified owns Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an such Person; provided that no Affiliate of the Issuer of (other than a Restricted Subsidiary) owns Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not AffiliatesPerson;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other an Affiliate is a joint venturer, or with entered into during any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; orSuspension Period;
(9) without limiting clause sales of Qualified Equity Interests for cash by the Issuer to an Affiliate;
(8) immediately above, (i10) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to agreement as in effect as of the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for Issue Date and disclosed in the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely Offering Memorandum with respect to the consumer diagnostic businessinitial Notes (including agreements disclosed by incorporation by reference therein) or any extension, amendment or modification thereto (so long asas such extension, with respect to this amendment or modification satisfies the requirements set forth in clause (ii), 1) of the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in first paragraph of this Section 4.11(a)(24.09) shall not apply to ordinary course or any transaction contemplated thereby;
(11) transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiaryany Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture;
(12) purchases and sales of raw materials or inventory in the ordinary course of business which satisfy the requirements set forth in clause (1) of the first paragraph of this Section 4.09; or
(13) transactions with suppliers or purchasers for the sale or purchase of goods in the ordinary course of business which satisfy the requirements set forth in clause (1) of the first paragraph of this Section 4.09.
Appears in 1 contract
Samples: Indenture (Massey Energy Co)
Limitations on Transactions with Affiliates. (a) The Issuer will Parent shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Parent or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Parent or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Parent or that Restricted Subsidiary; and
Subsidiary and (2) the Issuer Parent delivers to the Trustee:
: (ia) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million7,500,000, an Officers’ Certificate of the Parent certifying that such Affiliate Transaction complies with clause (1Section 4.07(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
and (iib) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Parent or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million 25,000,000 or more, the certificates described in the preceding clause (i4.07(a)(2)(a) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Parent or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer Parent and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Parent (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into allocation of employee services among the Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basis;
Parent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent); (4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (1)(b), clause (14) or clause (15) of the definition of “Permitted Investments;
” to the extent that such Permitted Investment under clause (14) or clause (15) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Parent beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Parent)); (5) any agreement as in effect as of the Bridge Loan Closing Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (6) Restricted Payments which are made in accordance with Section 4.08 4.04(a) or Section 4.04(b)(1), (including payments 4)-(7); (7) licensing of trademarks to, and transactions that would constitute Restricted Payments but for allocation of overhead, sales and marketing, travel and like expenses among, the exclusions Parent, its Subsidiaries and the Joint Ventures on a fair and equitable basis in clauses (1) and (2) the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the definition thereofParent beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Parent);
; or (6) any transaction with an Affiliate where the only consideration paid by the Issuer 8) issuances, sales or any Restricted Subsidiary is other dispositions of Qualified Equity Interests (and any payments of for cash in lieu of delivering fractional shares in connection therewith);
(7) by the sale Parent to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate consideration in excess of $2,500,000, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Company or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million10,000,000, an Officers’ Certificate of the Company certifying that such Affiliate Transaction complies with clause (1Section 4.12(a)(1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer Company or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million 25,000,000 or more, the certificates described in the preceding clause (i4.12(a)(2)(A) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.12(a) shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer Company and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into allocation of employee services among the Company, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basisCompany beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Company);
(4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (1)(b), clause (14) or clause (15) of the definition of “Permitted Investments” to the extent that such Permitted Investment under clause (14) or clause (15) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Company beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Company));
(5) any agreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in Section 4.12(a)(1)) or any transaction contemplated thereby;
(6) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (14.09(a) or Section 4.09(b)(1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith4)-(7);
(7) licensing of trademarks to, and allocation of overhead, sales and marketing, travel and like expenses among, the sale to an Affiliate Company, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the Issuer Company beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests of in the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not AffiliatesCompany);
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturerissuances, or with any Subsidiary thereof sales or other joint venturer therein, pursuant dispositions of Qualified Equity Interests for cash by the Company to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venturean Affiliate; or
(9) without limiting clause (8) immediately above, (i) any transaction transactions in the ordinary course of business with a P&G JV Unrestricted Subsidiaries that are engaged in the business of originating mortgages on behalf of new home customers of the Company and its homebuilding Subsidiaries; provided that such transactions are no less favorable to the Company or any the relevant Restricted Subsidiary or member thereof pursuant to than those that could be obtained in a comparable transaction at such time on an arm’s-length basis by the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and from a Person that is not an Unrestricted Affiliate of the Company or such Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 25.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiarySubsidiary unless otherwise required by applicable law;
(2) director, officer and employee compensation (including bonuses) and other benefits (including insurance policies, retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case determined to be reasonable by the Independent Directors;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1) or (2) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.11 of this Indenture;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions registration statement (through incorporation by reference or otherwise), of which the prospectus supplement dated May [ ], 2006 is a part, relating to the Notes, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) transactions between or among the Issuer or any Restricted Subsidiary participating in a Qualified Receivables Transaction, on the one hand, and/or any Receivables Subsidiary, on the other hand, or transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(8) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that, other than with respect to the Hatchery, no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (American Greetings Corp)
Limitations on Transactions with Affiliates. (a) The Issuer Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 20.0 million or more, the certificates certificate described in the preceding clause (iA) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (iA) the Issuer Company and one or more Restricted Subsidiaries or (iiB) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or Company and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer Company or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer Company and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) 4.11 of the definition thereof);this Indenture; or
(6) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Phi Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of $1.0 million (an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2ii) the Issuer delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 20.0 million or more, the certificates described in the preceding clause (ia)(ii)(A) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1i) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2ii) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plansplans and reimbursement or advancement of out-of- pocket expenses, and director’s and officer’s liability insurance) and indemnification and insurance arrangements, in the case of any of the above payable to or entered into with directors or executive officers, approved by a majority of the Independent Directors;
(3iii) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposespurposes to be used by such Person to pay taxes, on the other hand, and which payments by the Issuer and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5iv) Restricted Payments which are made in accordance with Section 4.08 4.04 and any Permitted Investment;
(v) (x) any agreement in effect on the Issue Date and disclosed (including payments and transactions that would constitute Restricted Payments but for by incorporation by reference) in the exclusions Prospectus Supplement, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, which amendment or replacement, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(6vi) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; and
(vii) (A) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7B) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: First Supplemental Indenture (ExamWorks Group, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of the greater of (i) $25.0 million and (ii) 7.5% of Consolidated EBITDA of the Issuer and the Restricted Subsidiaries, unless:
(1) such Affiliate Transaction is on terms terms, taken as a whole, that are no not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at by the Issuer or such time Restricted Subsidiary with an unrelated Person on an arm’s-length basis by or, if in the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate good faith judgment of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers Issuer, no comparable transaction is available with which to the Trustee:
(i) with respect to any compare such Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 millionTransaction, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view issued and when such transaction is taken in its entirety; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $50.0 million, a resolution adopted by a majority of the members of the Board of the Issuer and a majority of the disinterested members of the Board of the Issuer approving such Affiliate Transaction and an Independent Financial AdvisorOfficer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above.
(b) The foregoing restrictions provisions shall not apply toto the following:
(1) (a) transactions exclusively between or among (i) the Issuer and one a Restricted Subsidiary or more between or among Restricted Subsidiaries or, in any case, any entity that becomes a Restricted Subsidiary as a result of such transaction and (b) any merger, consolidation or amalgamation of the Issuer with or into any Parent Entity; provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer or another Parent Entity and such merger, consolidation or amalgamation is otherwise consummated in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(ii2) Restricted Subsidiaries, providedPayments permitted by Section 10.10 (other than pursuant to Section 10.10(b)(13)(F)) and the definition of “Permitted Investments;”
(3) the payment of indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors, in each case, approved by, or pursuant to arrangements approved by the Board of the Issuer;
(4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided to or on behalf of, or for the benefit of, former, current or future officers, directors, employees, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any Restricted Subsidiary or any Parent Entity;
(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that no such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s length basis;
(6) any agreement or arrangement as in effect or contemplated as of the Issue Date (other than any agreement or arrangement of the type described in clause (3) above), or any amendment thereto (so long as any such amendment is not materially disadvantageous in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);
(7) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it (or any Parent Entity) is a party as of the Issue Date and any similar agreements which it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries (or such Parent Entity) of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(8) [reserved];
(9) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business or that are consistent with past practice and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board or the senior management of the Issuer, or are on terms, taken as a whole, that are not materially less favorable as might reasonably have been obtained at such time from an unaffiliated party;
(10) the issuance or transfer of (a) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any Parent Entity or to any Permitted Holder or to any former, current or future director, officer, manager, employee or consultant (or their respective Controlled Investments Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer or any of its Subsidiaries or any Parent Entity and (b) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(11) transactions in connection with Permitted Receivables Financings;
(12) payments by the Issuer or any of its Restricted Subsidiaries made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by the Board of the Issuer or the senior management of the Issuer in good faith;
(13) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity and employment agreements, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) (including salary or guaranteed payments and bonuses) which, in each case, are approved by the Board of the Issuer or the senior management of the Issuer in good faith;
(A) investments by Permitted Holders in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Permitted Holders in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(15) transactions with a Person that is an Affiliate of the Issuer (other than another arising solely because the Issuer or any Restricted Subsidiary) Subsidiary owns any Equity Interests of any Interest in, or controls, such Restricted SubsidiaryPerson;
(216) director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering any lease entered into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiariesany Restricted Subsidiary, on the one hand, and any other Person with which Affiliate of the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposesIssuer, on the other hand, which payments is approved by the Issuer and the Subsidiaries are not materially in excess Board of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any Permitted Investments;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) senior management of the Issuer 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 who are not Affiliatesgood faith;
(8) any transaction 17) intellectual property licenses entered into in the ordinary course of business or consistent with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; orpast practice;
(918) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and any other Person that would constitute an Affiliate Transaction solely because a director of such other Person is also a director of the Issuer or any Parent Entity; provided, however, that such director abstains from voting as a director of the Issuer or such Parent Entity, as the case may be, on any matter including such other Person;
(19) pledges of Equity Interests of Unrestricted SubsidiarySubsidiaries;
(20) payments by the Issuer and any Parent Entity and their respective Subsidiaries pursuant to tax sharing agreements among the Issuer and any Parent Entity and their respective Subsidiaries on customary terms; provided that such payments shall not exceed the excess (if any) of the amount of taxes that the Issuer and its Subsidiaries would have paid on a stand-alone basis over the amount of such taxes actually paid by the Issuer and its Subsidiaries directly to governmental authorities; and
(21) payments to and from, and transactions with, any joint ventures entered into in the ordinary course of business or consistent with past practice (including, without limitation, any cash management activities related thereto).
Appears in 1 contract
Samples: Indenture (Ww International, Inc.)
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, with or for the benefit of, any Affiliate involving aggregate consideration in excess of $2.5 million (an “Affiliate Transaction”), unless:
: (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
, and (2) the Issuer delivers to the Trustee:
Trustee (i) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 10.0 million, an Officers’ Certificate of the Issuer certifying that such Affiliate Transaction complies with clause Section 4.07(a)(1), and either (1x) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority the Board of the Independent Directors approving such Affiliate TransactionTransaction or (y) a written opinion or appraisal of the type described in clause (ii) of this Section 4.07(a); and
and (ii) with respect to any Affiliate Transaction involving aggregate value expended or received by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of exceeding $50.0 million or more25.0 million, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) The foregoing restrictions provisions of Section 4.07(a) shall not apply to:
to (1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
; (2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
; (3) the entering into of any tax sharing agreement, or the making of payments pursuant to Permitted Investment (other than any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person Permitted Investment made in accordance with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (2) of the tax liabilities that would have been payable by them on a stand-alone basis;
definition of “Permitted Investments”); (4) any Permitted Investments;
agreement as in effect as of the Issue Date or any extension, amendment, modification, restatement or renewal thereof (so long as any such extension, amendment, modification, restatement or renewal satisfies the requirements set forth in Section 4.07(a)(1)) or any transaction contemplated thereby; (5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
4.04; (6) any issuances, sales or other dispositions of Qualified Equity Interests by the Issuer to an Affiliate; (7) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and the Restricted Subsidiaries (including pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the disinterested members of the Board of Directors of the Issuer, such transactions are on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction with an Affiliate where the only consideration paid by the Issuer or any such Restricted Subsidiary with an unrelated Person; (8) any agreement between any Person and an Affiliate of such Person existing at the time such Person is Qualified Equity Interests (acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, and any payments amendment thereto, so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of cash the Board of Directors of the Issuer, when taken as a whole, as compared to the applicable agreement as in lieu effect on the date of delivering fractional shares in connection therewith);
such acquisition or merger; (79) transactions with a Person (other than an Unrestricted Subsidiary of the sale to Issuer) that is an Affiliate of the Issuer of Equity Interests of solely because the Issuer that do not constitute Disqualified owns, directly or through a Restricted Subsidiary, an Equity InterestsInterest in, and the sale to an Affiliate of the Issuer of Indebtedness or controls (including Disqualified Equity Interests) of the Issuer in connection with an offering of such Indebtedness in a market transaction and on terms substantially identical pursuant to those of other purchasers in such market transaction who are not Affiliates;
(8) any transaction with a joint venture or shareholders agreement), such Person; and (10) transactions in which the ordinary course of business with Unrestricted Subsidiaries that are primarily engaged in the mortgage origination and lending business; provided, however, that such transactions are no less favorable to the Issuer or a the relevant Restricted Subsidiary than those that could be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5.0 million, other than transactions with entities on an arm’s-length basis existing on the Issue Date and disclosed in the Offering Memorandum, unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 20.0 million, an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iib) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (ia) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) transactions exclusively between or among (ia) the Issuer Company and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, consultant and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements, in each case approved by the Independent Directors;
(3) payments to the entering into Sponsor and any of any tax sharing agreement, or its Affiliates (a) for the making of payments management fee pursuant to any such agreement, between the Issuer Management Agreement or one or more Subsidiaries, on the one hand, and (b) for any other Person financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with which the Issuer acquisitions or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other handdivestitures, which payments payments, in the case of this clause (b), are approved by the Issuer and the Subsidiaries are not materially in excess a majority of the tax liabilities Independent Directors of the Company in good faith not to exceed, with respect to this clause (3), $5.0 million in the aggregate in any calendar year; provided that would no Default shall have been payable by them on occurred and be continuing or occur as a stand-alone basisconsequence thereof;
(4) any Permitted InvestmentsPayments to Parent;
(5) loans and advances permitted by clause (3) of the definition of “Permitted Investment”;
(6) Restricted Payments or Permitted Investments which are made in accordance with Section 4.08 4.07;
(including payments 7) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Offering Memorandum, as in clauses effect on the Issue Date, or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Company in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(68) any transaction with a joint venture or similar entity, including any entity in which the Company owns a minority interest, that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(9) transactions between a Securitization Subsidiary and any Person in which the Securitization Subsidiary has an Investment; and
(10) (a) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $100,000, unless:
(1) (A)(i) such Affiliate Transaction is on terms terms, taken as a whole, that are no not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at by the Issuer or such time Restricted Subsidiary with an unrelated Person on an arm’s-length basis by basis, or (ii) if in the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate good faith judgment of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers Issuer, no comparable transaction is available with which to the Trustee:
(i) with respect to any compare such Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 millionTransaction, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view issued and when such transaction is taken in its entirety, and (B) such Affiliate Transaction is made in the ordinary course of business, consistent with past practice, in good faith and for a bona fide business purpose; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $250,000 a resolution adopted by a majority of the Board of the Issuer approving such Affiliate Transaction, accompanied by an Independent Financial AdvisorOfficer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above.
(b) The foregoing restrictions provisions shall not apply toto the following:
(1) transactions exclusively between or among (i) the Issuer and one a Restricted Subsidiary or more between or among Restricted Subsidiaries or (ii) Restricted Subsidiaries, providedor, in each any case, any entity that no Affiliate becomes a Restricted Subsidiary as a result of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiarytransaction;
(2) director, officer Restricted Payments permitted by Section 10.10 and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangementsthe definition of Permitted Investments;
(3) the entering into payment of any tax sharing agreementreasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided to or on behalf of, or for the making of payments pursuant to any such agreementbenefit of, between the Issuer former, current or one future officers, directors, managers, employees or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess consultants of the tax liabilities that would have been payable by them on a stand-alone basisIssuer, any Restricted Subsidiary of the Issuer;
(4) transactions in which the Issuer or any Permitted Investmentsof its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s length basis;
(5) Restricted Payments which are made any agreement or arrangement as in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) effect as of the definition thereofIssue Date, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);
(6) transactions with customers, vendors, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business and that are consistent with past practice and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of the Issuer or the senior management thereof, 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 on an arm’s length basis;
(7) the issuance or transfer of (A) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any transaction former, current or future director, manager, officer, employee or consultant of the Issuer or any of its Subsidiaries, and (B) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(8) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers or consultants of the Issuer, any of its Subsidiaries and employment agreements, consulting agreements, indemnification agreements, employee benefit plans, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such employees, directors, officers, managers or consultants (including salary or guaranteed payments and bonuses) which, in each case, are approved by the Board of the Issuer or the senior management of the Issuer in good faith, in each case pursuant to this clause (8), so long as for bona fide business purposes, in the ordinary course of business and consistent with past practice;
(A) investments by Permitted Holders in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Permitted Holders in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) of this clause (9) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(10) transactions with a Person that is an Affiliate where of the only consideration paid by Issuer arising solely because the Issuer or any Restricted Subsidiary is Qualified owns any Equity Interests (and any payments Interest in, or controls, such Person, in the ordinary course of cash business on such terms, taken as a whole, that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in lieu of delivering fractional shares in connection therewith)a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(711) any lease entered into between the sale to an Issuer or any Restricted Subsidiary, as lessee and any Affiliate of the Issuer of Equity Interests Issuer, as lessor, which is approved by the Board of the Issuer that do not constitute Disqualified Equity Interests, and or the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) senior management of the Issuer in connection with an offering of such Indebtedness in good faith for a market transaction and on terms substantially identical to those of other purchasers in such market transaction who are not Affiliatesbona fide business purpose;
(8) any transaction 12) intellectual property licenses entered into in the ordinary course of business and consistent with past practice;
(13) an agreement between a joint venture in which Person and an Affiliate of such Person existing at the time such Person is acquired by, or merged into, the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, not entered into in contemplation of such acquisition or merger; provided that such acquisition or merger complied with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; orthis covenant;
(914) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and any other Person that would constitute an Unrestricted SubsidiaryAffiliate Transaction solely because a director of such other Person is also a director of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer on any matter including such other Person; and
(15) payments to and from, and transactions with, any joint ventures entered into in the ordinary course of business and consistent with past practice (including, without limitation, any cash management activities related thereto).
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; and
(2) the Issuer Company delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 5.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iiB) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 20.0 million or more, the certificates certificate described in the preceding clause (iA) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Company or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (iA) the Issuer Company and one or more Restricted Subsidiaries or (iiB) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer Company (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any a tax sharing agreement, or the making of payments pursuant to any such agreementthereto, between the Issuer or Company and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer Company or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer Company and the Restricted Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) 4.11 of the definition thereof)this Indenture;
(6) any transaction with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns Equity Interests in such Person, provided that no other Affiliate of the Company (other than a Restricted Subsidiary) owns Equity Interests in such Person; or
(7) any transaction with an Affiliate where the only consideration paid by the Issuer Company or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Phi Inc)
Limitations on Transactions with Affiliates. (a) The Issuer will Partnership shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer Partnership or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Partnership or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Partnership or that Restricted Subsidiary; and
(2) the Issuer Partnership delivers to the Trustee:
(iA) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $7.5 million but less than $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and above;
(B) with respect to any Affiliate Transaction involving aggregate value of at least $15.0 million but less than $30.0 million, a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent disinterested members of the Board of Directors of the Partnership approving such Affiliate Transaction; andor
(iiC) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 30.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer Partnership or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorAdvisor to the Board of Directors of the Partnership.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (iA) the Issuer Partnership and one or more Restricted Subsidiaries or (iiB) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;; or
(2) customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, Restricted Payments that are permitted by Section 4.11 and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisPermitted Investments;
(4) such Affiliate Transaction is with a Person in its capacity as a holder of Indebtedness or Equity Interests of the Partnership or any Permitted InvestmentsRestricted Subsidiary where such Person is treated no more favorably than the holders of Indebtedness or Equity Interests of the Partnership or any Restricted Subsidiary who are not Affiliates of the Partnership;
(5) the existence of, or the performance by the Partnership or any Restricted Payments which Subsidiary of its obligations under the terms of, (i) any agreements that (x) are made described in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but the Annual Report on Form 10-K of the Partnership for the exclusions year ended December 31, 2012 under the heading “Certain Relationships and Related Party Transactions, and Director Independence” to which it is a party on the terms described in clauses such Annual Report on Form 10-K or (y) form part of an Affiliate Transaction that meets the requirements of subclauses (1) and (2) of clause (a) of this Section 4.13, or (ii) any amendments to such agreements that are not less favorable to the definition thereof)Holders in any material respect;
(6) any transaction with an Affiliate where the only consideration paid by the Issuer issuance or any Restricted Subsidiary is sale for cash of Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);to an Affiliate; and
(7) transactions between or among the sale to an Affiliate Partnership or any of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, its Restricted Subsidiaries and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer a Cemetery Non-Profit 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer Cemetery Management or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryOperating Agreement.
Appears in 1 contract
Samples: Indenture (Stonemor Partners Lp)
Limitations on Transactions with Affiliates. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) unless such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period in excess of $15.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and one or more its Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Issuer (not involving any other than another Restricted Subsidiary) owns Equity Interests of any such Restricted SubsidiaryAffiliate;
(2) reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plansStock Compensation Plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments transactions pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, Tax Liability Allocation and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess of the tax liabilities that would have been payable by them on a stand-alone basisIndemnification Agreement;
(4) any loans and advances permitted by clause (3) of the definition of “Permitted Investments”;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 4.07;
(including payments 6) (x) any agreement in effect on the Issue Date and transactions that would constitute Restricted Payments but for disclosed in the exclusions Offering Memorandum, as in clauses effect on the Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in any material respect than such agreement as it was in effect on the Issue Date or (1y) and any transaction pursuant to any agreement referred to in the immediately preceding clause (2) of the definition thereofx);
(67) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(8) ordinary overhead arrangements in which any Subsidiary participates; and
(a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7b) the issuance or sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified any Qualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactionstransactions involving aggregate consideration in excess of $3,000,000, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no not materially less favorable favorable, taken as a whole, to the Issuer Company or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer Company or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer Company or that Restricted Subsidiary; Subsidiary; and
(2) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period consideration in excess of $15.0 million30,000,000, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted approved by a majority of the Independent disinterested members of the Board of Directors approving such Affiliate Transaction; and
(ii) with respect to any Affiliate Transaction involving aggregate value expended by of the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 million or more, the certificates described in the preceding clause (i) and a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view issued by an Independent Financial AdvisorCompany.
(b) The foregoing restrictions provisions of Section 4.06(a) shall not apply to:
(1) transactions exclusively between or among (i) the Issuer and Company and/or one or more Restricted Subsidiaries (or (ii) an entity that becomes a Restricted Subsidiaries, provided, in each case, that no Affiliate Subsidiary as a result of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;transaction);
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;arrangements;
(3) the entering into allocation of employee services among the Company, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any tax sharing agreementsuch Subsidiary or Joint Venture, no officer, director or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess stockholder of the tax liabilities that would have been payable by them on a stand-alone basis;Company beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests in the Company);
(4) any Permitted Investment (other than any Permitted Investment made in accordance with clause (1)(b), clause (14) or clause (15) of the definition of “Permitted Investments;” to the extent that such Permitted Investment under clause (14) or clause (15) is in a Joint Venture or Unrestricted Subsidiary of which any officer, director or stockholder of the Company beneficially owns any Equity Interests (other than indirectly through ownership of Equity Interests in the Company));
(5) any agreement as in effect as of the Issue Date or any extension, amendment, modification or supplement thereto or any replacement thereof (so long as any such extension, amendment, modification, supplement or replacement satisfies the requirements set forth in Section 4.06(a)(1)) or any transaction contemplated thereby;
(6) Restricted Payments which are made in accordance with Section 4.08 4.03(a) or Section 4.03(b)(1) or (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);
(6) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);4)-(9);
(7) licensing of trademarks to, and allocation of overhead, sales and marketing, travel and like expenses among, the sale to an Affiliate Company, its Subsidiaries and the Joint Ventures on a fair and equitable basis in the ordinary course of business; provided that, in the case of any such Subsidiary or Joint Venture, no officer, director or stockholder of the Issuer Company beneficially owns any Equity Interests in such Subsidiary or Joint Venture (other than indirectly through ownership of Equity Interests of in the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;Company);
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturerissuances, or with any Subsidiary thereof sales or other joint venturer therein, pursuant dispositions of Qualified Equity Interests for cash by the Company to the joint venture agreement or related agreements for such joint venturean Affiliate, including any transfers granting of any equity registration and/or other customary investor or ownership interests shareholder rights in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; connection therewith; or
(9) without limiting clause transactions in the ordinary course of business with Unrestricted Subsidiaries that are engaged in the business of originating mortgages on behalf of new home customers of the Company and its homebuilding Subsidiaries; provided that such transactions are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained in a comparable transaction at such time on an arm’s-length basis by the Company or such Restricted Subsidiary from a Person that is not an Affiliate of the Company or such Restricted Subsidiary;
(8) immediately above, (i10) any transaction with a P&G JV transactions in which the Company or any Subsidiary or member thereof pursuant Restricted Subsidiary, as the case may be, delivers to the P&G JV Agreements Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (ii1) any of the preceding paragraph; or
(11) issuances of securities or other transactions with a P&G JV payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option, stock ownership, severance or termination plans or similar employee benefit agreements, arrangements or plans entered into by the Company or any Subsidiary or member thereof for of its Restricted Subsidiaries in the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer of business or any Restricted Subsidiary consistent with past practices and an Unrestricted Subsidiaryadvances, reimbursements and payments pursuant thereto.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Issuer will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of $60,000 (an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would may have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the Issuer or that Restricted Subsidiary; and
(2) the Issuer delivers to the Trustee:
(ia) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer of $1.0 million or more, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above;
(b) with respect to any Restricted Subsidiary in a consecutive twelve-month period Affiliate Transaction involving aggregate value in excess of $15.0 2.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction; and
(iic) with respect to any Affiliate Transaction involving aggregate value expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month period of $50.0 10.0 million or more, the certificates described in the preceding clause (ib) and (x) a written opinion as to the fairness of such Affiliate Transaction to the Issuer or such Restricted Subsidiary from a financial point of view or (y) a written appraisal supporting the value of such Affiliate Transaction, in either case, issued by an Independent Financial Advisor.
(b) . The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (ia) the Issuer and one or more Restricted Subsidiaries or (iib) Restricted Subsidiaries, ; provided, in each case, that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) reasonable director, officer officer, employee and employee consultant compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and insurance arrangements;
(3) the entering into of any tax sharing agreement, or the making of payments pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on the one hand, loans and any other Person with which the Issuer or such Subsidiaries are required or advances permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Issuer and the Subsidiaries are not materially in excess clause (3) of the tax liabilities that would have been payable by them on a stand-alone basisdefinition of “Permitted Investments”;
(4) any Permitted Investmentsagreement as in effect as of the Issue Date or any extension, amendment or modification thereto (so long as any such extension, amendment or modification satisfies the requirements set forth in clause (1) of the first paragraph of this Section 4.10) or any transaction contemplated thereby;
(5) Restricted Payments of the type described in clause (1), (2) or (4) of the definition of “Restricted Payment” and which are made in accordance with Section 4.08 (including payments and transactions that would constitute Restricted Payments but for the exclusions in clauses (1) and (2) of the definition thereof);4.08; or
(6) any transaction with an Affiliate where the only consideration paid sales of Qualified Equity Interests for cash by the Issuer or any Restricted Subsidiary is Qualified Equity Interests (and any payments of cash in lieu of delivering fractional shares in connection therewith);
(7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer that do not constitute Disqualified Equity Interests, and the sale to an Affiliate of the Issuer of Indebtedness (including Disqualified Equity Interests) of the Issuer 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 who are not Affiliates;
(8) any transaction with a joint venture in which the Issuer or a Restricted Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement or related agreements for such joint venture, including any transfers of any equity or ownership interests in any such joint venture to any other joint venturer therein pursuant to the performance or exercise of any rights or obligations to make such transfer under the terms of the agreements governing such joint venture; or
(9) without limiting clause (8) immediately above, (i) any transaction with a P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or distribution of products or materials, or the provision of other administrative or operational services (whether on a transitional or ongoing basis), solely with respect to the consumer diagnostic business, so long as, with respect to this clause (ii), the charges for manufacturing such products are on a “cost-plus” basis. The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course transactions between the Issuer or any Restricted Subsidiary and an Unrestricted SubsidiaryAffiliate.
Appears in 1 contract
Samples: Indenture (Meritage Corp)
