Limitations on Transactions with Affiliates. The Company shall not, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless: (a) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and (b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been (A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph: (i) Affiliate Transactions entered into in accordance with the Intercompany Agreement; (ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary; (iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary; (iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries; (v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement. (vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii).
Appears in 6 contracts
Limitations on Transactions with Affiliates. The Company shall (a) Holdings will not, and shall will not permit any Restricted Subsidiary to, make directly or indirectly, enter into or conduct any payment totransaction or series of related transactions (including the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currenciesservice) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, with any Affiliate of Holdings (each, an “Affiliate Transaction”) involving aggregate consideration in excess of $50.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to Holdings 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 $100.0 million 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), unlessany Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Subsection 8.5(a) if (x) 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:
(ai) any Restricted Payment Transaction,
(ii) (1) the Affiliate Transaction is on terms that are no less favorable 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 Holdings, any Restricted Subsidiary or any Parent Entity heretofore or hereafter entered into in the Company 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 relevant Subsidiary than those that would have been obtained making or cancellation of loans in a comparable transaction by the Company 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 Subsidiary with an unrelated Person management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of Holdings or any of its Subsidiaries or any Parent Entity (as determined in good faith by a responsible financial Holdings, such Subsidiary or accounting officer 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 Holdings, 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 Management Agreements referred to in Subsection 8.5(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to Holdings and its Restricted Subsidiaries in the reasonable determination of the Company); andBoard of Directors or senior management of Holdings, or are not materially less favorable to Holdings or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of Holdings,
(bvi) any transaction in the Company delivers to the Trustee a resolution ordinary course of the board of directors of the Companybusiness, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) or approved by a majority of the members Board of Directors, between Holdings or any Restricted Subsidiary and any Affiliate of Holdings controlled by Holdings that is a joint venture or similar entity,
(vii) (1) the board execution, delivery and performance of directors any Tax Sharing Agreement and Management Agreements, and (2) payments to the Sponsors or any of the Company their respective Affiliates (which majority shallx) for any management, prior to September 10consulting, 2058or advisory services or, include in respect of financing, underwriting or placement services or other investment banking activities (if any), as may be approved by a majority of the independent members Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the board Board of directors 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 Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:Sponsors and their Affiliates,
(iix) Affiliate Transactions entered into in accordance with the Intercompany Agreement;any issuance or sale of Capital Stock (other than Disqualified Stock) of Holdings or Junior Capital or any capital contribution to Holdings, and
(iix) Affiliate Transactions with or among the Issuer, the Company any investment by any Investor in securities of Holdings or any Subsidiary;
of its Restricted Subsidiaries (iii) the and payment of reasonable and customary regular fees to directors of the Company or out-of-pocket expenses incurred by any Subsidiary;
(ivInvestor in connection therewith) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous securities are being offered generally to the Holders in any material respect, taken as a whole, other investors (other than the original agreement.
(viInvestors) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii)more favorable terms.
Appears in 5 contracts
Samples: Credit Agreement (Univar Solutions Inc.), Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.)
Limitations on Transactions with Affiliates. The Company shall not, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:
(a) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and (vii) any (A) Restricted Payments specified under Section 4.12; and (B) Restricted Payments made in compliance with Section 4.12 to the extent such Restricted Payments are made as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii).
Appears in 5 contracts
Limitations on Transactions with Affiliates. The (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, make any payment loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any of its properties property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance agreement or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company’s Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an “Affiliate Transaction”), unless:
(a) the except for any Affiliate Transaction is on the terms that of which are no less at least as favorable to as the Company or the relevant Subsidiary than those that would have been terms which could be obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the CompanyRestricted Subsidiary, as applicablethe case may be, set forth in a comparable transaction made on an Officerarm’s Certificate from length basis with Persons who are not such a holder, an authorized officer Affiliate of the Company certifying that such a holder or an Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;of the Company’s Subsidiaries.
(ivb) transactions In addition, the Company will not, and will not cause or payments permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (including loans and advancesi) pursuant with respect to any employeesuch Affiliate Transaction involving or having a value of more than $10 million, officer the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company’s disinterested directors or director compensation obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or benefit planssuch Restricted Subsidiary, customary indemnifications as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or arrangements entered into in having a value of more than $50 million, the ordinary course Company shall have (x) obtained the approval of business with a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding the foregoing, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees, officers or directors employees of the Company or its Subsidiaries;
Subsidiaries generally (vin their capacities as such) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on that has been approved by the Issue DateBoard of Directors of the Company, (Bii) any contractual obligation Capital Stock issuances to directors, officers and employees of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.03, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, however, no such transaction shall involve any other Affiliate of the Company (other than an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant Unrestricted Subsidiary to the foregoing clauses (aextent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) through and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise permitted in accordance with distributed or transferred without charge, to the terms of the prior paragraph of this Section 4.15(b)(vii)Company or a Restricted Subsidiary.
Appears in 4 contracts
Samples: Seventeenth Supplemental Indenture (Horton D R Inc /De/), Nineteenth Supplemental Indenture (Horton D R Inc /De/), Senior Notes Indenture (Horton D R Inc /De/)
Limitations on Transactions with Affiliates. (a) The Company Parties shall not enter into at any time any contract, transaction or other arrangement involving any Company Party, on the one hand, and any of its Affiliates, officers, directors or employees, on the other hand, unless such contract, transaction or arrangement (i) has been approved in writing in advance by a majority of the disinterested directors of the Board of Directors of the Parent and the Company Parties, to the extent applicable, or otherwise in accordance with Rule 4350(h) of the Corporate Governance Rules promulgated by Nasdaq, (ii) will be on terms and conditions that are no less favorable to the Company Party than those that would be obtained from any Person who is not an Affiliate of (or otherwise related to) the Company Party in a similar transaction and (iii) has been approved in writing in advance by the Purchaser if such contract, transaction or arrangement involves either (A) any Person who then holds or is to acquire, directly or indirectly, 5% or more of the Capital Stock of any Company Party or (B) a member of the Immediate Family of any officer or director of any Company Party or Person owned or controlled by any member of the Immediate Family of any officer or director of any Company Party; provided, that, the foregoing clause (iii) shall not be deemed to prohibit the performance by the Company Parties of any contract, transaction or arrangement in effect on the date hereof and disclosed to the Purchaser. The Company Parties shall not enter into any material amendment or modification of any contract, transaction or arrangement existing on the date hereof unless approved in writing in advance by the Purchaser if such contract, transaction or arrangement involves either (A) any Person who then holds or is to acquire, directly or indirectly, 5% or more of the Capital Stock of any Company Party or (B) a member of the Immediate Family of any officer or director of any Company Party or Person owned or controlled by any member of the Immediate Family of any officer or director of any Company Party.
(b) The Companies shall not, and shall not permit any Subsidiary other Company Party to, make engage any payment to, or sell, lease, transfer or otherwise dispose member of the Immediate Family of any officer or director of its properties or assets to, or purchase any property or assets from, or enter into or make or amend Company Party to be a Designated Officer of any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:Company Party.
(ac) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer The provisions of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will Section 10.6 shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to prohibit the provisions purchase by any Company Party of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with all the Intercompany Agreement;
Securities transacted on terms agreed to by Purchaser or (ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise Indebtedness permitted in accordance with the terms of the prior paragraph of this under Section 4.15(b)(vii10.1(a)(v).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Iii Lp), Securities Purchase Agreement (Butler International Inc /Md/)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate of the Company (eacheach of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $2.5 million, unless:
(a1) the such Affiliate Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company)Person; and
(b2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $25.0 million, a resolution Board Resolution adopted by the majority of the board of directors members of the Company, as applicable, Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has beenclause (1) above.
(Ab) recommended by The foregoing provisions shall not apply to the compliance and audit committee following:
(1) transactions between or among the Company or any of the board Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 1010 of directors this Indenture and the definition of Permitted Investments (other than Permitted Investments under clauses (c) and (n) of the definition of Permitted Investments);
(3) transactions pursuant to compensatory, benefit and incentive plans and agreements with officers, directors, managers or employees of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority or any of its members) and (B) Restricted Subsidiaries approved by a majority of the members Board of the board of directors Directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreementgood faith;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii4) the payment of reasonable and customary regular fees to directors and reimbursements paid to, and indemnities provided on behalf of, officers, directors, managers, employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary;
(5) transactions in which the Company or any Restricted Subsidiary;
(iv) transactions , as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or payments (including loans and advances) pursuant 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 any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiariesrelevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(v6) Affiliate Transactions undertaken pursuant payments or loans (or cancellations of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary and employment agreements, employee benefit plans, stock option plans and other compensatory or severance arrangements with such employees or consultants that are, in each case, approved by the Company in good faith;
(A7) any contractual obligations agreement, instrument or rights arrangement as in existence on effect as of the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and amendment thereto (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respectrespect as compared to the applicable agreement as in effect on the Issue Date as reasonably determined by the Company in good faith, taken as a whole, than the original agreement.evidenced by an Officer’s Certificate);
(vi8) 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 that are fair to the Company and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any director, manager, officer, employee or consultant of the Company or any direct or indirect parent company thereof;
(10) any provision of any administrative services to any Joint Venture Company on substantially transaction in which the same terms provided to or only consideration paid by the Company or its Subsidiaries; and as required by any Restricted Subsidiary consists of Equity Interests (or pursuant to an election specifically contemplated byother than Disqualified Stock) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph Company;
(11) any merger, consolidation or reorganization of this Section 4.15(b)(vii)the Company with an Affiliate of the Company solely for the purpose of reincorporating the Company in a new jurisdiction; and
(12) transactions between the Company or any Restricted Subsidiary and any Person that is an Affiliate of the Company or any Restricted Subsidiary solely because a director of such Person is also a director of the Company or any direct or indirect parent of the Company; provided that such director abstains from voting as a director of the Company or any direct or indirect parent, as the case may be, on any matter involving such other Person.
Appears in 2 contracts
Samples: Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp)
Limitations on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Subsidiary of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to exist any payment totransaction or series of related transactions (including, without limitation, the purchase, sale, lease or sell, lease, transfer exchange of any property or otherwise dispose the rendering of any service) with any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving Affiliates (each an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “"Affiliate Transaction”"), unless:
other than (ax) the Affiliate Transaction is Transactions permitted under paragraph (c) of this Section 1011 and (y) Affiliate Transactions on terms that are no less favorable to in any material respect than those that might reasonably have been obtained, in the good faith judgment of the Board of Directors of the Company or the relevant Subsidiary than those that would have been obtained Restricted Subsidiary, as the case may be, in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary.
(b) Each Affiliate Transaction (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $20.0 million shall be approved by the Board of Directors of the Company 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.
(c) The foregoing paragraphs shall not apply to:
(1) any employment agreement, collective bargaining agreement, employee benefit plan, related trust agreement or any similar arrangement, payment of compensation and fees to, and indemnity provided on behalf of, any present or former employees, officers, directors or consultants, maintenance of benefit programs or arrangements for any present or former employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation plans, and retirement or savings plan and similar plans, and loans and advances to any present or former employees, officers, directors, consultants and shareholders, in each case entered into by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority any of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into Restricted Subsidiaries in the ordinary course of business with or for approved by the benefit Board of employees, officers or directors Directors of the Company or its Subsidiariessuch Restricted Subsidiary, as the case may be;
(v2) Affiliate Transactions undertaken transactions exclusively between or among the Company and any of its Restricted Subsidiaries or any joint venture in which the Company has a Permitted Joint Venture Investment or exclusively between or among such Restricted Subsidiaries; provided such transactions are not otherwise prohibited by this Indenture;
(3) any agreement, instrument or arrangement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or thereto) in any replacement agreement to the obligations and rights described in clauses (A) and (B), thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, respect than the original agreement.agreement as in effect on the Issue Date as determined by the Company;
(vi4) Permitted Investments and Restricted Payments permitted by this Indenture;
(5) the issuance or sale of any Capital Stock (other than Disqualified Capital Stock) of the Company; and
(6) any provision transactions with joint ventures described in the definition of any administrative services to any Permitted Joint Venture Company on substantially Investments and transactions contemplated by or to facilitate the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii)Turnaround Program.
Appears in 2 contracts
Samples: Indenture (Xerox Corp), Indenture (Xerox Corp)
Limitations on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, make any payment loan, advance, guar- xxxxx or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any of its properties property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance agreement or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an “"Affiliate Transaction”"), unless:
(a) except for any Affiliate --------------------- Transaction the Affiliate Transaction is on terms that of which are no less at least as favorable to as the Company or the relevant Subsidiary than those that would have been terms which could be obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the CompanyRestricted Subsidiary, as applicablethe case may be, set forth in a comparable transaction made on an Officer’s Certificate from arm's length basis with Persons who are not such a holder, an authorized officer Affiliate of the Company certifying that such a holder or an Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;of the Company's Subsidiaries.
(ivb) transactions In addition, the Company will not, and will not cause or payments permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (including loans and advancesi) pursuant with respect to any employeesuch Affiliate Transaction involving or having a value of more than $5 million, officer the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or director compensation obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or benefit planssuch Restricted Subsidiary, customary indemnifications as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or arrangements entered into in having a value of more than $25 million, the ordinary course Company shall have (x) obtained the approval of business with a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding the foregoing, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees, officers or directors employees of the Company or its Subsidiaries;
Subsidiaries generally (vin their capacities as such) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on that has been approved by the Issue DateBoard of Directors of the Company, (Bii) any contractual obligation Capital Stock issuances to directors, officers and employees of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under the "Limitations on Restricted Payments" covenant, (iv) any transaction between or among the Company and one or more Re- -28- stricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the Company ------- (other than an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant Unrestricted Subsidiary to the foregoing clauses (aextent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) through and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise permitted in accordance with distributed or transferred without charge, to the terms of the prior paragraph of this Section 4.15(b)(vii)Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. The Company shall not, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:
(a) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and
(vii) any (A) Restricted Payments specified under Section 4.12; and (B) Restricted Payments made in compliance with Section 4.12 to the extent such Restricted Payments are made as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii).
Appears in 1 contract
Samples: Indenture
Limitations on Transactions with Affiliates. The Company shall notExcept as otherwise expressly permitted in this Agreement, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contractincluding any purchase, agreementsale, understandinglease or exchange of property or the rendering of any service, loan, advance or guarantee involving an with any Affiliate which involves aggregate amount consideration in excess of U.S.$1,000,000 $25,000,000the greater of (or the equivalent in other currenciesx) per $50,000,000 and (y) 3.50% of Consolidated Tangible Assets, unless such transaction or in excess of U.S.$2,000,000 is (or the equivalent in other currenciesA) within any twelve not otherwise prohibited under this Agreement, and (12B) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:
(a) the Affiliate Transaction is on upon terms that are no not materially less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the relevant Subsidiary case may be, than those that would have been could be obtained at the time in a comparable transaction by the Company or such Subsidiary with a Person which is not an unrelated Person Affiliate and (as determined in good faith by a responsible financial or accounting officer of the Company); and
(bC) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that if such Affiliate Transaction complies with this section involves aggregate consideration in excess of the greater of $100,000,000 and that 6.50% of Consolidated Tangible Assets, the terms of such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) have been approved by a majority of the members Board of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not Directors; provided that nothing contained in this Subsection 8.11 shall be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraphprohibit:
(ia) Affiliate Transactions entered into (1) the Parent Borrower or any Restricted Subsidiary from entering into, modifying, maintaining or performing any consulting, management, compensation, collective bargaining, benefits or employment agreements, related trust agreement or other compensation arrangements with a current or former management member, director, officer, employee or consultant of or to the Parent Borrower or such Restricted Subsidiary or any Parent Entity or IPO Vehicle in accordance with the Intercompany Agreement;
ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings, or other similar plans, programs or arrangements, (ii2) Affiliate Transactions with payments, compensation, performance of indemnification or among the Issuercontribution obligations, the Company making or any Subsidiary;
(iii) the payment cancellation of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of to any such management members, employees, officers officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other equity securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Company Parent Borrower or any of its SubsidiariesSubsidiaries or any Parent Entity or IPO Vehicle (as (i) approved by the Board of Directors of thedetermined in good faith by the Parent Borrower Representative or any, such Subsidiary or such Parent Entity or IPO Vehicle (including the compensation committee thereof), (ii) in an amount not in excess of $2,000,000 for such director, or (iii) in the ordinary course of business, 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);
(vb) Affiliate the payment of all amounts in connection with this Agreement or any of the Transactions undertaken and the Third Amendment Effective Date Transactions;
(c) the Parent Borrower or any of its Restricted Subsidiaries from entering into, making payments pursuant to and otherwise performing (i) the obligations under the Plumb Acquisition Agreement and (ii) an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any contractual obligations other applicable securities laws or rights otherwise, in existence connection with any offering of securities by any Parent Entity or IPO Vehicle (provided that, if such Parent Entity or IPO Vehicle shall own any material assets other than (x) the Capital Stock of the Parent Borrower or another Parent Entity or IPO Vehicle, or (y) other assets relating to the ownership interest by such Parent Entity or IPO Vehicle in the Parent Borrower or another Parent Entity or IPO Vehicle, such liabilities shall be limited to the reasonable and proportional share, as determined by the Borrower Representative in its reasonable discretion based on the Issue Datebenefit therefrom to the Parent Borrower and its Subsidiaries, of such liabilities relating or allocable to the ownership interest of such Parent Entity or IPO Vehicle in the Parent Borrower or another Parent Entity or IPO Vehicle and such other related assets) or the Parent Borrower or any of its Subsidiaries, (B) incurred to third parties for any contractual obligation action or failure to act of any Subsidiary the Parent Borrower or any Person that is merged into the Company of its Subsidiaries or any Subsidiary on the date such Person becomes a Subsidiary Parent Entity or is merged into the Company IPO Vehicle or any Subsidiary and of their predecessors or successors, (C) arising out of the performance by any amendment Affiliate of the CD&R Investors of management, consulting or replacement agreement financial advisory services provided to the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, (D) arising out of the fact that any indemnitee was or is a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, or is or was serving at the request of any such Person as a director, officer, agent, consultant or employee of another corporation, partnership, joint venture, trust, enterprise or other Person or (E) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle;
(d) any issuance or sale of Capital Stock of the Parent Borrower or any Parent Entity or IPO Vehicle or capital contribution to the Parent Borrower or any Restricted Subsidiary;
(e) (1) the execution, delivery and performance of any obligations and rights described under any Tax Sharing Agreement or payments by the Parent 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 Receivable Agreements (excluding the payment of any accelerated lump sum amount payable upon an early termination of a tax receivables agreement entered into in clauses (Aconnection with an initial public offeringTax Receivables Agreement to the extent such amount exceeds the amount that would have been payable under such tax receivables agreement in the absence of such acceleration) and any Transaction Agreement, and (B2) payments to CD&R or any of its respective Affiliates (x) for any management, consulting, financial 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;
(f) the execution, delivery and performance of agreements or instruments (i) under which the Parent Borrower or its Restricted Subsidiaries do not make payments or provide consideration in excess of $5,000,000the greater of (x) $7,500,000 and (y) 0.50% of Consolidated Tangible Assets per Fiscal Year or (ii) set forth on Schedule 8.11;
(g) (i) any transaction between or among any of the Parent Borrower and one or more Restricted Subsidiaries, (ii) any transaction permitted by clause (c), (d), (f), (g), (h), (i), (j), (l), (m) or (n)(ii) of the definition of “Permitted Investments” (provided that any transaction pursuant to clause (l) or (m) shall be limited to guarantees of loans and advances by third parties), (iii) any transaction permitted by Subsection 8.2 or 8.3 or specifically excluded from the definition of “Restricted Payment” and (iv) any transaction permitted by Subsection 8.13(f)(i), 8.13(f)(ii), 8.13(f)(iii), 8.13(f)(vii), 8.13(f)(viii), or 8.13(j);
(h) the Transactions and the Third Amendment 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 Third Amendment Effective Date Transactions, including the fees and out-of-pocket expenses of CD&R andor any of its Affiliates;
(i) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors of the Parent Borrower, between the Parent Borrower or any Restricted Subsidiary and any Affiliate of the Parent Borrower controlled by the Parent Borrower that is a joint venture or similar entity;
(j) (i) any investment by any CD&R Investor in securities or loans of the Parent Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any CD&R Investor in connection therewith) so long as such amendment investments are being offered by the Parent Borrower or replacement agreement is not the applicable Restricted Subsidiary generally to investors (other than CD&R Investors) on the same or more disadvantageous favorable terms and (ii) payments to any CD&R Investor in respect of securities or loans of the Holders Parent Borrower or any of its Restricted Subsidiaries contemplated in any material respect, taken as a whole, the foregoing subclause (i) or that were acquired from Persons other than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or Parent Borrower and its Restricted Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted , in each case, in accordance with the terms of such securities or loans; and
(k) the prior paragraph pledge of this Section 4.15(b)(vii)Capital Stock, Indebtedness or other securities of any Unrestricted Subsidiary or joint venture to lenders to support the Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively, owed to such lenders.
Appears in 1 contract
Limitations on Transactions with Affiliates. The Company shall notExcept as otherwise expressly permitted in this Agreement, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contractincluding any purchase, agreementsale, understandinglease or exchange of property or the rendering of any service, loan, advance or guarantee involving an with any Affiliate which involves aggregate amount consideration in excess of U.S.$1,000,000 $25,000,000the greater of (or the equivalent in other currenciesx) per $50,000,000 and (y) 3.50% of Consolidated Tangible Assets, unless such transaction or in excess of U.S.$2,000,000 is (or the equivalent in other currenciesA) within any twelve not otherwise prohibited under this Agreement, and (12B) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:
(a) the Affiliate Transaction is on upon terms that are no not materially less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the relevant Subsidiary case may be, than those that would have been could be obtained at the time in a comparable transaction by the Company or such Subsidiary with a Person which is not an unrelated Person Affiliate and (as determined in good faith by a responsible financial or accounting officer of the Company); and
(bC) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that if such Affiliate Transaction complies with this section involves aggregate consideration in excess of the greater of $100,000,000 and that 6.50% of Consolidated Tangible Assets, the terms of such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) have been approved by a majority of the members Board of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not Directors; provided that nothing contained in this Subsection 8.11 shall be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraphprohibit:
(ia) Affiliate Transactions entered into (1) the Parent Borrower or any Restricted Subsidiary from entering into, modifying, maintaining or performing any consulting, management, compensation, collective bargaining, benefits or employment agreements, related trust agreement or other compensation arrangements with a current or former management member, director, officer, employee or consultant of or to the Parent Borrower or such Restricted Subsidiary or any Parent Entity or IPO Vehicle in accordance with the Intercompany Agreement;
ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings, or other similar plans, programs or arrangements, (ii2) Affiliate Transactions with payments, compensation, performance of indemnification or among the Issuercontribution obligations, the Company making or any Subsidiary;
(iii) the payment cancellation of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of to any such management members, employees, officers officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other equity securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Company Parent Borrower or any of its SubsidiariesSubsidiaries or any Parent Entity or IPO Vehicle (as (i) approved by the Board of Directors of thedetermined in good faith by the Parent Borrower Representative or any, such Subsidiary or such Parent Entity or IPO Vehicle (including the compensation committee thereof), (ii) in an amount not in excess of $2,000,000 for such director, or (iii) in the ordinary course of business, 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);
(vb) Affiliate the payment of all amounts in connection with this Agreement or any of the Transactions undertaken and the Third Amendment Effective Date Transactions;
(c) the Parent Borrower or any of its Restricted Subsidiaries from entering into, making payments pursuant to and otherwise performing (i) the obligations under the Plumb Acquisition Agreement and (ii) an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any contractual obligations other applicable securities laws or rights otherwise, in existence connection with any offering of securities by any Parent Entity or IPO Vehicle (provided that, if such Parent Entity or IPO Vehicle shall own any material assets other than (x) the Capital Stock of the Parent Borrower or another Parent Entity or IPO Vehicle, or (y) other assets relating to the ownership interest by such Parent Entity or IPO Vehicle in the Parent Borrower or another Parent Entity or IPO Vehicle, such liabilities shall be limited to the reasonable and proportional share, as determined by the Borrower Representative in its reasonable discretion based on the Issue Datebenefit therefrom to the Parent Borrower and its Subsidiaries, of such liabilities relating or allocable to the ownership interest of such Parent Entity or IPO Vehicle in the Parent Borrower or another Parent Entity or IPO Vehicle and such other related assets) or the Parent Borrower or any of its Subsidiaries, (B) incurred to third parties for any contractual obligation action or failure to act of any Subsidiary the Parent Borrower or any Person that is merged into the Company of its Subsidiaries or any Subsidiary on the date such Person becomes a Subsidiary Parent Entity or is merged into the Company IPO Vehicle or any Subsidiary and of their predecessors or successors, (C) arising out of the performance by any amendment Affiliate of the CD&R Investors of management, consulting or replacement agreement financial advisory services provided to the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, (D) arising out of the fact that any indemnitee was or is a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, or is or was serving at the request of any such Person as a director, officer, agent, consultant or employee of another corporation, partnership, joint venture, trust, enterprise or other Person or (E) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle;
(d) any issuance or sale of Capital Stock of the Parent Borrower or any Parent Entity or IPO Vehicle or capital contribution to the Parent Borrower or any Restricted Subsidiary;
(1) the execution, delivery and performance of any obligations and rights described under any Tax Sharing Agreement (excluding the payment of any accelerated lump sum amount payable upon an early termination of a tax receivables agreement entered into in clauses (Aconnection with an initial public offering to the extent such amount exceeds the amount that would have been payable under such tax receivables agreement in the absence of such acceleration) and any Transaction Agreement, and (B2) payments to CD&R or any of its respective Affiliates (x) for any management, consulting, financial 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;
(f) the execution, delivery and performance of agreements or instruments (i) under which the Parent Borrower or its Restricted Subsidiaries do not make payments or provide consideration in excess of $5,000,000the greater of (x) $7,500,000 and (y) 0.50% of Consolidated Tangible Assets per Fiscal Year or (ii) set forth on Schedule 8.11;
(g) (i) any transaction between or among any of the Parent Borrower and one or more Restricted Subsidiaries, (ii) any transaction permitted by clause (c), (d), (f), (g), (h), (i), (j), (l), (m) or (n)(ii) of the definition of “Permitted Investments” (provided that any transaction pursuant to clause (l) or (m) shall be limited to guarantees of loans and advances by third parties), (iii) any transaction permitted by Subsection 8.2 or 8.3 or specifically excluded from the definition of “Restricted Payment” and (iv) any transaction permitted by Subsection 8.13(f)(i), 8.13(f)(ii), 8.13(f)(iii), 8.13(f)(vii), 8.13(f)(viii), or 8.13(j);
(h) the Transactions and the Third Amendment 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 Third Amendment Effective Date Transactions, including the fees and out-of-pocket expenses of CD&R andor any of its Affiliates;
(i) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors of the Parent Borrower, between the Parent Borrower or any Restricted Subsidiary and any Affiliate of the Parent Borrower controlled by the Parent Borrower that is a joint venture or similar entity;
(j) (i) any investment by any CD&R Investor in securities or loans of the Parent Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any CD&R Investor in connection therewith) so long as such amendment investments are being offered by the Parent Borrower or replacement agreement is not the applicable Restricted Subsidiary generally to investors (other than CD&R Investors) on the same or more disadvantageous favorable terms and (ii) payments to any CD&R Investor in respect of securities or loans of the Holders Parent Borrower or any of its Restricted Subsidiaries contemplated in any material respect, taken as a whole, the foregoing subclause (i) or that were acquired from Persons other than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or Parent Borrower and its Restricted Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted , in each case, in accordance with the terms of such securities or loans; and
(k) the prior paragraph pledge of this Section 4.15(b)(vii)Capital Stock, Indebtedness or other securities of any Unrestricted Subsidiary or joint venture to lenders to support the Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively, owed to such lenders.
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Company shall not, ------------------------------------------- will not and shall will not permit any Subsidiary its subsidiaries to, make any payment todirectly or indirectly, or sell, lease, transfer lease or otherwise dispose of transfer any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, Parent or any of Parent's Affiliates (to the extent Section 8.1(e) remains in effect), any Purchaser, any officer, director, Significant Shareholder, or Affiliate of the Company or any Purchaser (each, each of the foregoing an “"Affiliate Transaction”), unless:
") except for (ai) the Affiliate Transaction is Transactions which are conducted in good faith and on terms that are no less favorable to the Company or the relevant Subsidiary subsidiary than those that which would have been obtained available at such time in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in independent third party on an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section arms' length basis and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) have been approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors Independent Directors of the Company or (ii) with respect to any Subsidiary;Affiliate Transaction involving (A) a change of control of the Company or a substantial change in the Company's equity ownership, (B) a "Rule 13e-3 transaction" (as such term is defined pursuant to Rule 13e-3 under the Exchange Act), (C) a sale of all or substantially all of the assets of the Company, (D) any transaction contemplated by Section 8.2 of this Agreement or (E) any transaction with substantially similar effects, any such transaction for which the Company has obtained an opinion from a nationally recognized investment banking firm (which firm shall be independent of Purchasers) that such Affiliate -42- Transaction is fair to the shareholders of the Company or such subsidiary from a financial point of view. Notwithstanding anything to the contrary contained herein, the Company may continue and enter into agreements with Parent or any of its subsidiaries relating to sales of materials which are conducted in good faith and on terms that are no less favorable to the Company or the relevant Company subsidiary than those which would have been available at the time in a transaction with an independent third party on an arms' length basis; provided, that, upon the request of any Director, any transaction or proposed series of transactions involving aggregate sales or expenditures in excess of $5.0 million shall require the approval of the Board of Directors of the Company in accordance with clause (i) of the first sentence of this Section 8.1(a).
(ivb) transactions The Company shall not enter into any management services or payments similar type agreement with either Purchasers, Parent or any of their respective Affiliates.
(including loans c) The Continuing Directors shall have the right to enforce the provisions of this Section 8.4 on behalf of the shareholders of the Company and advances) pursuant to any employeePurchasers, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in Parent and the ordinary course of business with or Company hereby agree for the benefit of employeesthe Continuing Directors not to raise any objection to the standing of such Continuing Directors to enforce such provisions before any court of competent jurisdiction. If, officers or directors notwithstanding the foregoing, any court of competent jurisdiction denies the Continuing Directors standing to assert such claims on behalf of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms shareholders of the prior paragraph of Company, such shareholders may enforce this Section 4.15(b)(vii)8.4 directly, as if express third-party beneficiaries hereof.
Appears in 1 contract
Samples: Stock Subscription Agreement (Specialty Products & Insulation Co)
Limitations on Transactions with Affiliates. The Company shall notExcept as otherwise expressly permitted in this Agreement, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contractincluding any purchase, agreementsale, understandinglease or exchange of property or the rendering of any service, loan, advance or guarantee involving an with any Affiliate which involves aggregate amount consideration in excess of U.S.$1,000,000 $15,000,000 unless such transaction is (A) not otherwise prohibited under this Agreement, and (B) upon terms not materially less favorable to the Parent or such Restricted Subsidiary, as the equivalent case may be, than those that could be obtained at the time in other currencies) per a transaction or with a Person which is not an Affiliate; provided that nothing contained in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unlessthis Subsection 8.11 shall be deemed to prohibit:
(a) (1) the Affiliate Transaction is on terms that are no less favorable Parent or any Restricted Subsidiary from entering into, modifying, maintaining or performing any consulting, management, compensation, collective bargaining, benefits or employment agreements, related trust agreement or other compensation arrangements with a current or former management member, director, officer, employee or consultant of or to the Company Parent or such Restricted Subsidiary or any Parent Entity in the relevant Subsidiary than those that would have been obtained 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 a comparable transaction 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 equity securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Parent or any of its Subsidiaries or any Parent Entity (as (i) approved by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer Board of Directors of the CompanyBorrower Representative or any Parent Entity (including the compensation committee thereof); and, (ii) in an amount not in excess of $2,000,000 for such director or (iii) in the ordinary course of business), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term);
(b) the Company delivers payment of all amounts in connection with this Agreement or any of the Transactions;
(c) the Parent or any of its Restricted Subsidiaries from entering into, making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent, consultant or employee of the Parent or any of its Subsidiaries or any Parent Entity, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by any Parent Entity (provided that, if such Parent Entity shall own any material assets other than (x) the Capital Stock of the Parent or another Parent Entity, or (y) other assets relating to the Trustee a resolution ownership interest by such Parent Entity in the Parent or another Parent Entity, such liabilities shall be limited to the reasonable and proportional share, as determined by the Borrower Representative in its reasonable discretion based on the benefit therefrom to the Parent and its Subsidiaries, of such liabilities relating or allocable to the ownership interest of such Parent Entity in the Parent or another Parent Entity and such other related assets) or the Parent or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the board Parent or any of directors its Subsidiaries or any Parent Entity or any of their predecessors or successors, (C) arising out of the Companyperformance by any Affiliate of the CD&R Investors of management, consulting or financial advisory services provided to the Parent or any of its Subsidiaries or any Parent Entity, (D) arising out of the fact that any indemnitee was or is a director, officer, agent, consultant or employee of the Parent or any of its Subsidiaries or any Parent Entity, or is or was serving at the request of any such Person as applicablea director, set forth in an Officer’s Certificate from an authorized officer, agent, consultant or employee of another corporation, partnership, joint venture, trust, enterprise or other Person or (E) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has beenParent or any of its Subsidiaries or any Parent Entity;
(Ad) recommended by the compliance and audit committee any issuance or sale of Capital Stock of the board Parent or any Parent Entity or capital contribution to the Parent or any Restricted Subsidiary;
(e) (1) the execution, delivery and performance of directors of the Company any Tax Sharing Agreement and any 2009 Transaction Agreement, and (with such compliance and audit committee having, prior 2) payments to September 10, 2058, independent directors as a majority CD&R or any of its membersrespective Affiliates (x) and (B) for any management, consulting, financial or advisory services as may be approved by a majority of the members of Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the board of directors of the Company (which majority shall, prior to September 10, 2058, include 2009 Transaction Agreements or are approved by a majority of the independent members Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection with such services or activities;
(f) the execution, delivery and performance of agreements or instruments (i) under which the Parent or its Restricted Subsidiaries do not make payments or provide consideration in excess of $15,000,000 per Fiscal Year or (ii) set forth on Schedule 8.11;
(g) (i) any transaction among any of the board of directors Parent and one or more Restricted Subsidiaries, (ii) any transaction permitted by clause (c), (d), (f), (g), (h), (i), (j), (l), (m) or (n)(ii) of the Companydefinition of “Permitted Investments” (provided that any transaction pursuant to clause (l) or (m) shall be limited to guarantees of loans and advances by third parties). The following items will , (iii) any transaction permitted by Subsection 8.2 or 8.3 or specifically excluded from the definition of Restricted Payment and (iv) any transaction permitted by Subsection 8.13(e)(i), 8.13(e)(ii), 8.13(e)(iii), 8.13(e)(vii), 8.13(e)(viii), or 8.13(i);
(h) the Transactions and all transactions in connection therewith (including but not be deemed to be Affiliate Transactions and, therefore, will not be subject limited to the provisions 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 prior paragraph:CD&R and its Affiliates;
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into transaction in the ordinary course of business with business, or for the benefit of employees, officers or directors approved by a majority of the Company Board of Directors of the Parent, between the Parent or its Subsidiaries;any Restricted Subsidiary and any Affiliate of the Parent controlled by the Parent that is a joint venture or similar entity; and
(v) Affiliate Transactions undertaken pursuant to (Aj) any contractual obligations or rights investment by any CD&R Investor in existence on securities of the Issue Date, (B) any contractual obligation of any Subsidiary Parent or any Person that is merged into the Company or of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (CCD&R Investor in connection therewith) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as (i) such amendment securities are being offered generally to investors (other than CD&R Investors) on the same or replacement agreement is not more disadvantageous favorable terms and (ii) to the Holders in extent such securities constitute Secured Indebtedness with a first priority Lien on any material respect, taken as a whole, than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph Collateral, such investment by all CD&R Investors constitutes less than 5.0% of this Section 4.15(b)(vii)the proposed or outstanding issue amount of such class of securities.
Appears in 1 contract
Limitations on Transactions with Affiliates. The Company shall not, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currencies) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:
(a) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person (as determined in good faith by a responsible financial or accounting officer of the Company); and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and
(vii) any (A) Restricted Payments specified under Section 4.12; and (B) Restricted Payments made in compliance with Section 4.12 to the extent such Restricted Payments are made as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii).
Appears in 1 contract
Samples: Indenture
Limitations on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, make directly or indirectly, enter into or conduct any payment totransaction or series of related transactions (including the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currenciesservice) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, with any Affiliate of the Borrower (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10,000,000the 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:
unless (ai) the terms of such Affiliate Transaction is on terms that are no not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the relevant Subsidiary case may be, than those that would 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 $25,000,000the 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 obtained approved by a majority of the Board of Directors. For purposes of this Subsection 8.5(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Subsection 8.5(a) if (x) such Affiliate Transaction is approved by a comparable transaction 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 Company entering into, maintaining or performance of any employment or, 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 Subsidiary with an unrelated Person 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 a responsible financial the Borrower, such Subsidiary or accounting officer 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 Company); andBorrower, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(biv) any transaction arising out of agreements or instruments in existence on the Company delivers 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 fair to the Trustee a resolution Borrower and its Restricted Subsidiaries in the reasonable determination of the board Board of directors Directors or senior management of the CompanyBorrower, as applicable, set forth or are not materially less favorable to the Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Officer’s Certificate from an authorized officer Affiliate of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has beenBorrower,
(Avi) recommended by any transaction in the compliance and audit committee ordinary course of the board of directors of the Company (with such compliance and audit committee havingbusiness, prior to September 10, 2058, independent directors as a majority of its members) and (B) or approved by a majority of the members Board of Directors, between the Borrower or any Restricted Subsidiary and any Affiliate of the board of directors Borrower controlled by the Borrower that is a joint venture or similar entity,
(vii) payments to any Sponsor or any member of the Company 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 majority shall, prior to September 10, 2058, include payments are approved by a majority of the independent members 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 board Sponsors and their respective Affiliates,
(ix) any issuance or sale of directors Capital Stock (other than Disqualified Stock) of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject Borrower or Junior Capital or any capital contribution to the provisions Borrower,
(x) any investment by any member of the prior paragraph:
(i) Affiliate Transactions entered into Sponsor Group in accordance with securities of the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company Borrower or any Subsidiary;
of its Restricted Subsidiaries (iii) the and payment of reasonable and customary regular fees to directors out-of-pocket expenses incurred by any member of the Company or any Subsidiary;
(ivSponsor Group in connection therewith) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business with or for the benefit of employees, officers or directors of the Company or its Subsidiaries;
(v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment securities are being offered generally to other investors (other than members of the Sponsor Group) on the same or replacement agreement is not more disadvantageous to the Holders in any material respectfavorable terms, taken as a whole, than the original agreement.and
(vixi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or intercompany transactions undertaken in good faith (as determined by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms a Responsible Officer of the prior paragraph Borrower in good faith) for the purpose of this Section 4.15(b)(vii)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
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Subsidiary of its Restricted Subsidiaries to, make directly or indirectly, enter into any payment totransaction or series of related transactions (including, without limitation, the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee involving an aggregate amount in excess of U.S.$1,000,000 (or the equivalent in other currenciesservice) per transaction or in excess of U.S.$2,000,000 (or the equivalent in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate of its Affiliates (each, each an “"Affiliate Transaction”"), unless:
other than (ax) the Affiliate Transaction is Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable to the Company or the relevant Subsidiary than those that would might reasonably have been obtained in a comparable transaction by at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.5 million shall be approved by the Board of Directors of the Company 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 Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with an unrelated Person the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by a responsible financial or accounting officer of the Company)'s Board of Directors or senior management; and
(b) the Company delivers to the Trustee a resolution of the board of directors of the Company, as applicable, set forth in an Officer’s Certificate from an authorized officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has been
(A) recommended by the compliance and audit committee of the board of directors of the Company (with such compliance and audit committee having, prior to September 10, 2058, independent directors as a majority of its members) and (B) approved by a majority of the members of the board of directors of the Company (which majority shall, prior to September 10, 2058, include a majority of the independent members of the board of directors of the Company). The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with transactions exclusively between or among the IssuerCompany and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by the Company or any Subsidiary;
Indenture; (iii) Restricted Payments permitted by the payment Indenture; (iv) payments made pursuant to the Management Agreement; (v) loans and advances (or guarantees of reasonable and customary regular fees third party loans) to directors officers or employees of the Company or any Subsidiary;
of its Restricted Subsidiaries in the ordinary course of business not to exceed $750,000 at any time outstanding; (ivvi) transactions any employment agreement, collective bargaining agreement, employee benefit plan, related trust agreement, indemnification agreement, benefit plan or payments similar plan (including loans and advancesarrangements made with respect to bonuses) pursuant to for the benefit of directors, officers or employees of the Company or any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements of its Restricted Subsidiaries entered into in the ordinary course of business with or for business; and (vii) the benefit of employees, officers or directors transactions and payments contemplated by any agreement as in effect as of the Company or its Subsidiaries;
Issue Date (v) Affiliate Transactions undertaken pursuant to (A) any contractual obligations or rights in existence on including without limitation, the Issue Date, (B) any contractual obligation of any Subsidiary or any Person that is merged into Merger Agreement and the Company or any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (C) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (BStockholders' Agreement), so long as such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect, taken as a whole, than the original agreement. SECTION 4.12.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or its Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted in accordance with the terms of the prior paragraph of this Section 4.15(b)(vii).
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Limitations on Transactions with Affiliates. The Company shall notExcept as otherwise expressly permitted in this Agreement, and shall not permit any Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contractincluding any purchase, agreementsale, understandinglease or exchange of property or the rendering of any service, loan, advance or guarantee involving an with any Affiliate which involves aggregate amount consideration in excess of U.S.$1,000,000 the greater of (x) $50,000,000 and (y) 3.50% of Consolidated Tangible Assets, unless such transaction is (A) not otherwise prohibited under this Agreement, (B) upon terms not materially less favorable to the Parent Borrower or such Restricted Subsidiary, as the equivalent case may be, than those that could be obtained at the time in other currenciesa transaction with a Person which is not an Affiliate and (C) per transaction or if such Affiliate Transaction involves aggregate consideration in excess of U.S.$2,000,000 (or the equivalent 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; provided that nothing contained in other currencies) within any twelve (12) month period, with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unlessthis Subsection 8.11 shall be deemed to prohibit:
(a) (1) the Affiliate Transaction is on terms that are no less favorable Parent Borrower or any Restricted Subsidiary from entering into, modifying, maintaining or performing any consulting, management, compensation, collective bargaining, benefits or employment agreements, related trust agreement or other compensation arrangements with a current or former management member, director, officer, employee or consultant of or to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company Parent Borrower or such Restricted Subsidiary with an unrelated Person or any Parent Entity or IPO Vehicle 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 equity securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle (as determined in good faith by a responsible financial the Parent Borrower, such Subsidiary or accounting officer 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 Companydefinition of such term); and;
(b) the Company delivers payment of all amounts in connection with this Agreement or any of the Transactions and the Third Amendment Effective Date Transactions;
(c) the Parent Borrower or any of its Restricted Subsidiaries from entering into, making payments pursuant to and otherwise performing (i) the obligations under the Plumb Acquisition Agreement and (ii) an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by any Parent Entity or IPO Vehicle (provided that, if such Parent Entity or IPO Vehicle shall own any material assets other than (x) the Capital Stock of the Parent Borrower or another Parent Entity or IPO Vehicle, or (y) other assets relating to the Trustee a resolution ownership interest by such Parent Entity or IPO Vehicle in the Parent Borrower or another Parent Entity or IPO Vehicle, such liabilities shall be limited to the reasonable and proportional share, as determined by the Borrower Representative in its reasonable discretion based on the benefit therefrom to the Parent Borrower and its Subsidiaries, of such liabilities relating or allocable to the ownership interest of such Parent Entity or IPO Vehicle in the Parent Borrower or another Parent Entity or IPO Vehicle and such other related assets) or the Parent Borrower or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the board Parent Borrower or any of directors its Subsidiaries or any Parent Entity or IPO Vehicle or any of their predecessors or successors, (C) arising out of the Companyperformance by any Affiliate of the CD&R Investors of management, consulting or financial advisory services provided to the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, (D) arising out of the fact that any indemnitee was or is a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle, or is or was serving at the request of any such Person as applicablea director, set forth in an Officer’s Certificate from an authorized officer, agent, consultant or employee of another corporation, partnership, joint venture, trust, enterprise or other Person or (E) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Company certifying that such Affiliate Transaction complies with this section and that such Affiliate Transaction has beenParent Borrower or any of its Subsidiaries or any Parent Entity or IPO Vehicle;
(Ad) recommended any issuance or sale of Capital Stock of the Parent Borrower or any Parent Entity or IPO Vehicle or capital contribution to the Parent Borrower or any Restricted Subsidiary;
(e) (1) the execution, delivery and performance of any obligations under any Tax Sharing Agreement or payments by the compliance Parent 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 Receivable 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 absence of such acceleration) and audit committee of the board of directors of the Company any Transaction Agreement, and (with such compliance and audit committee having, prior 2) payments to September 10, 2058, independent directors as a majority CD&R or any of its membersAffiliates (x) and (B) for any management, consulting, financial or advisory services, pursuant to the CD&R Consulting Agreement or as may be approved by a majority of the members of Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the board of directors of the Company (which majority shall, prior to September 10, 2058, include Transaction Agreements or are approved by a majority of the independent members 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;
(f) the execution, delivery and performance of agreements or instruments (i) under which the Parent Borrower or its Restricted Subsidiaries do not make payments or provide consideration in excess of the board greater of directors (x) $7,500,000 and (y) 0.50% of Consolidated Tangible Assets per Fiscal Year or (ii) set forth on Schedule 8.11;
(g) (i) any transaction between or among any of the CompanyParent Borrower and one or more Restricted Subsidiaries, (ii) any transaction permitted by clause (c). The following items will , (d), (f), (g), (h), (i), (j), (l), (m) or (n)(ii) of the definition of “Permitted Investments” (provided that any transaction pursuant to clause (l) or (m) shall be limited to guarantees of loans and advances by third parties), (iii) any transaction permitted by Subsection 8.2 or 8.3 or specifically excluded from the definition of “Restricted Payment” and (iv) any transaction permitted by Subsection 8.13(f)(i), 8.13(f)(ii), 8.13(f)(iii), 8.13(f)(vii), 8.13(f)(viii), or 8.13(j);
(h) the Transactions and the Third Amendment Effective Date Transactions, all transactions in connection therewith (including but not be deemed to be Affiliate Transactions and, therefore, will not be subject limited to the provisions financing thereof), and all fees and expenses paid or payable in connection with the Transactions and the Third Amendment Effective Date Transactions, including the fees and out-of-pocket expenses of the prior paragraph:CD&R or any of its Affiliates;
(i) Affiliate Transactions entered into in accordance with the Intercompany Agreement;
(ii) Affiliate Transactions with or among the Issuer, the Company or any Subsidiary;
(iii) the payment of reasonable and customary regular fees to directors of the Company or any Subsidiary;
(iv) transactions or payments (including loans and advances) pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into transaction in the ordinary course of business with business, or for the benefit of employees, officers or directors approved by a majority of the Company Board of Directors of the Parent Borrower, between the Parent Borrower or its Subsidiariesany Restricted Subsidiary and any Affiliate of the Parent Borrower controlled by the Parent Borrower that is a joint venture or similar entity;
(vj) Affiliate Transactions undertaken pursuant to (Ai) any contractual obligations investment by any CD&R Investor in securities or rights in existence on loans of the Issue Date, (B) any contractual obligation of any Subsidiary Parent Borrower or any Person that is merged into the Company or of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any Subsidiary on the date such Person becomes a Subsidiary or is merged into the Company or any Subsidiary and (CCD&R Investor in connection therewith) any amendment or replacement agreement to the obligations and rights described in clauses (A) and (B), so long as such amendment investments are being offered by the Parent Borrower or replacement agreement is not the applicable Restricted Subsidiary generally to investors (other than CD&R Investors) on the same or more disadvantageous favorable terms and (ii) payments to any CD&R Investor in respect of securities or loans of the Holders Parent Borrower or any of its Restricted Subsidiaries contemplated in any material respect, taken as a whole, the foregoing subclause (i) or that were acquired from Persons other than the original agreement.
(vi) any provision of any administrative services to any Joint Venture Company on substantially the same terms provided to or by the Company or Parent Borrower and its Restricted Subsidiaries; and as required by (or pursuant to an election specifically contemplated by) the terms of agreements that are: deemed not to be “Affiliate Transactions” pursuant to the foregoing clauses (a) through (v) or otherwise permitted , in each case, in accordance with the terms of such securities or loans; and
(k) the prior paragraph pledge of this Section 4.15(b)(vii)Capital Stock, Indebtedness or other securities of any Unrestricted Subsidiary or joint venture to lenders to support the Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively, owed to such lenders.
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