Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions. (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 the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Subsidiaries or exclusively between or among such Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted by, and complying with, the provisions of the covenant described in Section 5.01.
Appears in 1 contract
Samples: Indenture (Standard Commercial Corp)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 3.0 million shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 10.0 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 shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees employees, consultants or consultants investment bankers of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) -------- any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted byin which the Company or any of its Restricted Subsidiaries, and complying withas the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of this Section 4.12; (vi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the provisions Investors' Rights Agreement, the Securities Purchase Agreement, any stockholders' agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the covenant described Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or -------- ------- the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (vi) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in Section 5.01any material respect; (vii) the issuance of securities or other payments, awards or grants, in cash, securities or otherwise, pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company in good faith and loans to employees of the Company and its Subsidiaries which are approved by senior management of the Company in good faith; (viii) the payment of all fees and expenses related to the Transactions; (ix) transactions with customers, clients, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of 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; and (x) transactions reasonably related to (x) the exercise of rights and remedies with respect to the Convertible Subordinated Notes or (y) the conversion or exchange of the Convertible Subordinated Notes (each to the extent not otherwise prohibited in this Indenture).
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "“Affiliate Transaction"”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 the Company's ’s Board of Directors; provided, however, that for a transaction or series of related transactions with an aggregate value of $5.0 million or more, at the Company’s option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the Board of Directors of the Company or senior managementany such Restricted Subsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactions with an aggregate value of $20.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(iib) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii2) transactions effected as part of a Qualified Receivables Transaction;
(3) any agreement as in effect as of the Issue Date (as set forth in a list to be provided or approved pursuant to the Initial Purchasers on the Issue Date) Joint Plans or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; Date or as approved pursuant to the Joint Plans;
(iv4) Restricted Payments permitted by this Indenture;
(5) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in excess of $15.0 million at any one time outstanding;
(6) Permitted Investments or Permitted Liens;
(7) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(8) (i) reasonable and customary fees and compensation paid to, indemnity (including payment thereof) provided on behalf of, and reimbursement of reasonable out-of-pocket expenses incurred in connection with services provided by, officers, directors, consultants or employees of Holdings or any of its Restricted Subsidiaries (other than with respect to fees and compensation paid to the Advisors, which are set forth in clauses (9) and (10) below), as determined by the Board of Directors of the Company or any such Restricted Subsidiary or the senior management thereof in good faith, including, without limitation, issuances of stock, payment of bonuses and other transactions pursuant to employment or compensation agreements, stock option agreements, indemnification agreements (including payment thereunder) and other arrangements in effect on the Issue Date or substantially similar thereto; and (vii) transactions reimbursement of reasonable out-of-pocket expenses incurred by any representative of noteholders of the Company permitted byto be present at any meeting of the Board of Directors of Holdings in connection with attending any such meeting;
(9) the payment or accrual, on a quarterly basis, of advisory or management fees to (A) Avenue and complying withits Affiliates in an amount not to exceed $187,500 in any fiscal quarter and (B) Affiliates of Xxxxxxx Xxxxx and Trust Company of the West in an aggregate amount not to exceed $62,500 in any fiscal quarter, in each case in clauses (A) and (B) in accordance with the management or advisory services agreement between such Persons (collectively, but excluding, for the avoidance of doubt, individual members of the Board of Directors, the provisions “Advisors”) and Holdings or any of its Subsidiaries and the provision of indemnities (including payment thereof) to the Advisors in connection with such agreements;
(10) the reimbursement of the covenant described Advisors for the reasonable out-of-pocket expenses incurred by them in Section 5.01connection with performing advisory or management services to Holdings and its Restricted Subsidiaries;
(11) the payment of one-time fees to the Advisors in connection with acquisition transactions not prohibited by this Indenture, such fees to be payable at the time of each such acquisition and not to exceed (for all fees paid pursuant to this clause 11) 2.5% of the aggregate consideration paid by Holdings and its Restricted Subsidiaries for any such acquisition or such lesser amount as is then permitted pursuant to the Senior Credit Facilities; and
(12) fees paid to Advisors in connection with issuances and incurrences of Indebtedness by the Company or any Restricted Subsidiary to such Advisors (or in connection with amendments, waivers or forbearances of any such Indebtedness) and original issue discount in respect of any such Indebtedness.
Appears in 1 contract
Samples: Indenture (USA Direct, LLC)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 500,000 shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 million2,500,000, 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 shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this the Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) payments of annual fees and reimbursement of reasonable expenses to Novamil Corporation in accordance with the provisions of the Management Agreement dated April 28, 1995, as in effect on the Issue Date, to New House Capital Management Corp. in accordance with the provisions of the Consulting Agreement dated April 28, 1995, as in effect on the Issue Date and to Xxxxxx X. Xxxxxxx in accordance with the provisions of a consulting agreement dated January 10, 1997, as in effect on the Issue Date; (v) payments made in accordance with the Marpax, Inc. Supply Agreement, as in effect on the Issue Date, or any other such ink supply agreement with Marpax entered into on terms no less favorable to the Company than those that may reasonably have been obtained in an arm's length transaction as determined in good faith by the Company's Board of Directors; (vi) advances or loans to employees, officers and directors of the Company and its Restricted Subsidiaries permitted by clauses (iv) and (v) of the definition of Permitted Investments; and (vii) Restricted Payments permitted by this the Indenture; and (v) transactions permitted by, and complying with, the provisions of the covenant described in Section 5.01.
Appears in 1 contract
Samples: Indenture (Perry-Judds Inc)
Limitations on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 1.0 million shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 10.0 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 41 -41- Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, of officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by Section 4.06 of this Indenture; and (v) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of, its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter, provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (v) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in any material respect; (vi) transactions permitted by, and complying with, the provisions of Section 5.01 of this Indenture; (vii) the covenant described Recapitalization and the transactions contemplated by the Recapitalization Agreement; (viii) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in Section 5.01the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary; and (ix) transactions with customers, franchisees, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party.
Appears in 1 contract
Samples: Indenture (Roma Fort Worth Inc)
Limitations on Transactions with Affiliates. (a) The Prior to the Effective Date, the Company shall not enter into or permit to exist any Affiliate Transactions other than in connection with the consummation of the Transactions, the BWAY Assumption and the transactions contemplated thereby.
(b) From and after the Effective Date, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "“Affiliate Transaction"”), other than (x) Affiliate Transactions permitted under paragraph (bc) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, the Company or such Restricted Subsidiary, as the case may be, shallas determined in good faith by the Company’s Board of Directors; provided, prior to the consummation thereofhowever, obtain that for a favorable opinion as to the fairness of such transaction or series of related transactions to with an aggregate value of $5.0 million or more, at the Company’s option, (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the relevant Board of Directors of the Company or any such Restricted SubsidiarySubsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking, as the case may be, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view, from an Independent Financial Advisor and shall provide such opinion view to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactionstransactions with an aggregate value of $15.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(bc) The foregoing restrictions set forth in clause (a) shall not apply to to:
(i1) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's ’s Board of Directors or senior management; Directors;
(ii2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii3) transactions effected as part of a Qualified Receivables Transaction;
(4) any agreement as in effect as of the Issue Effective Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Effective Date; ;
(iv5) Restricted Payments permitted by this Indenture;
(6) any Permitted Investment; and any loan, advance or other payment described in the third paragraph of Section 4.03;
(v7) transactions permitted by, and complying with, the provisions of Article Five hereof;
(8) any payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the covenant described funding of, employment arrangements and Plans approved by the Board of Directors of the Company;
(9) the grant of stock options or similar rights to employees and directors of the Company and its Subsidiaries pursuant to Plans and employment contracts approved by the Board of Directors of the Company;
(10) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in Section 5.01excess of $5.0 million at any one time outstanding;
(11) the granting or performance of registration rights under a written registration rights agreement approved by the Board of Directors of the Company;
(12) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(13) any agreement to do any of the foregoing;
(14) the payment of fees, reimbursements, indemnifications and other amounts pursuant to any agreements between the Company and Xxxxx & Company, L.P. with respect to the payment of investment banking and annual financial advisory fees;
(15) the Transactions;
(16) execution, delivery and performance of a tax sharing agreement with respect to Holding Related Taxes;
(17) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or senior management thereof or are on terms no less favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(18) any transaction in the ordinary course of business, or approved in good faith by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity.
Appears in 1 contract
Samples: Indenture (Bway Corp)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 250,000 shall be approved by a majority of non-interested directors of the Board of Directors or a majority of non-interested directors of a committee of the Board of Directors of the CompanyCompany or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such majority of non-interested directors of the Board of Directors has or such majority of non-interested directors of the committee of the Board of Directors, as the case may be, have 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 payment or other property in excess fair market value of more than $5 million5,000,000, 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 independent nationally recognized investment banking firm and shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or a committee thereof or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted byany payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the funding of, employment arrangements and complying withstock option and stock ownership plans approved by the Board of Directors, or the provisions appropriate committee of the covenant described Board of Directors, of the Company; and (vi) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in Section 5.01excess of $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Indenture (Vista Eyecare Inc)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "“Affiliate Transaction"”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, the Company or such Restricted Subsidiary, as the case may be, shallas determined in good faith by the Company’s Board of Directors; provided, prior to the consummation thereofhowever, obtain that for a favorable opinion as to the fairness of such transaction or series of related transactions to with an aggregate value of $5.0 million or more, at the Company’s option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of Directors of the Company or (ii) the relevant Board of Directors of the Company or any such Restricted SubsidiarySubsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking, as the case may be, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view, from an Independent Financial Advisor and shall provide such opinion view to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactionstransactions with an aggregate value of $15.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(b) The foregoing restrictions set forth in clause (a) shall not apply to to:
(i1) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's ’s Board of Directors or senior management; Directors;
(ii2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii3) transactions effected as part of a Qualified Receivables Transaction;
(4) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; ;
(iv5) Restricted Payments permitted by this Indenture; Indenture and any transaction expressly excluded from the definition of “Restricted Payment” in the first paragraph of Section 4.03;
(v6) any Permitted Investment, and any loan, advance or other payment described in the second paragraph of Section 4.03;
(7) transactions permitted by, and complying with, the provisions of Article Five hereof;
(8) any payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the covenant described funding of, employment arrangements and Plans approved by the Board of Directors of the Company;
(9) the grant of stock options or similar rights to employees and directors of the Company and its Subsidiaries pursuant to Plans and employment contracts approved by the Board of Directors of the Company;
(10) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in Section 5.01excess of $5.0 million at any one time outstanding;
(11) the granting or performance of registration rights under a written registration rights agreement approved by the Board of Directors of the Company;
(12) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(13) any agreement to do any of the foregoing;
(14) the payment of fees, reimbursements, indemnifications and other amounts pursuant to any agreements between the Company and Xxxxx & Company, L.P. with respect to the payment of investment banking and annual financial advisory fees;
(15) execution, delivery and performance of a tax sharing agreement with respect to Holding Related Taxes;
(16) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or senior management thereof or are on terms no less favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(17) any transaction in the ordinary course of business, or approved in good faith by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity.
Appears in 1 contract
Samples: Indenture (BWAY Holding CO)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 250,000 shall be approved by a majority of non-interested directors of the Board of Directors or a majority of non-interested directors of a committee of the Board of Directors of the CompanyCompany or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such majority of non-interested directors of the Board of Directors has or such majority of non-interested directors of the committee of the Board of Directors, as the case may be, have 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 payment or other property in excess fair market value of more than $5 million5,000,000, 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 independent nationally recognized investment banking firm and shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or a committee thereof or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided PROVIDED such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Effective Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Effective Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted byany payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the funding of, employment arrangements and complying withstock option and stock ownership plans approved by the Board of Directors, or the provisions appropriate committee of the covenant described Board of Directors, of the Company; and (vi) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in Section 5.01excess of $500,000 at any one time outstanding.
Appears in 1 contract
Samples: Indenture (National Vision Inc)
Limitations on Transactions with Affiliates. (a) The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries towill, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, with or for the benefit of, of any of its Affiliates (each, other than transactions between the Company and a Wholly Owned Subsidiary of the Company or among Wholly Owned Subsidiaries of the Company) (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate; provided, however, that for a transaction or series of related transactions involving value of $1,000,000 or more, such determination will be made in good faith by a majority of the members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $5,000,000 or more, the Board of Directors of the Company has received an opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary. All Affiliate Transactions The foregoing restrictions will not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any obligations of the Company under the Financial Monitoring and Oversight Agreements (provided that each series amendment of related Affiliate Transactions which are any of the foregoing agreements shall be subject to the limitations of this covenant) or any employment agreement, noncompetition or confidentiality with any officer of the Company, (3) reasonable and customary investment banking, financial advisory, commercial banking and similar or part fees and expenses paid to BT Securities Corporation and its Affiliates, (4) any Restricted Payment permitted to be made pursuant to Section 4.03, (5) any issuance of a common plan) involving aggregate payments securities, or other property payments, awards or grants in excess of $2.5 million shall be cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, such approval (6) loans or advances to be evidenced by a Board Resolution stating that such Board employees in the ordinary course 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 payment or other property in excess of $5 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 business of the Company or any Restricted Subsidiary of its Subsidiaries consistent with past practices, (7) payments made in connection with the Osboxx Xxxuisition, the Osboxx Xxx-on Acquisitions, the Osboxx Xx. Myerx Xxxposition and the Pending Acquisitions, including fees to Hickx Xxxe as all such terms are defined in that certain Offering Memorandum dated February 14, 1997 relating to the Securities, and (8) the issuance of Capital Stock of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Subsidiaries or exclusively between or among such Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect other than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted by, and complying with, the provisions of the covenant described in Section 5.01Disqualified Capital Stock).
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 3.0 million shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 10.0 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 shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees employees, consultants or consultants investment bankers of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) -------- any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted byin which the Company or any of its Restricted Subsidiaries, and complying withas the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of this Section 4.12; (vi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the provisions Investors' Rights Agreement, the Securities Purchase Agreement, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the covenant described Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the -------- ------- existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (vi) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in Section 5.01any material respect; (vii) the issuance of securities or other payments, awards or grants, in cash, securities or otherwise, pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company in good faith and loans to employees of the Company and its Subsidiaries which are approved by senior management of the Company in good faith; (viii) the payment of all fees and expenses related to the Transactions; (ix) transactions with customers, clients, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of 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; and (x) transactions reasonably related to (x) the exercise of rights and remedies with respect to the Convertible Subordinated Notes or (y) the conversion or exchange of the Convertible Subordinated Notes (each to the extent not otherwise prohibited in this Indenture).
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Prior to the Effective Date, the Company shall not enter into or permit to exist any Affiliate Transactions other than in connection with the consummation of the Transactions, the BWAY Assumption and the transactions contemplated thereby.
(b) From and after the Effective Date, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (bc) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, the Company or such Restricted Subsidiary, as the case may be, shallas determined in good faith by the Company's Board of Directors; provided, prior to the consummation thereofhowever, obtain that for a favorable opinion as to the fairness of such transaction or series of related transactions to with an aggregate value of $5.0 million or more, at the Company's option, (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the relevant Board of Directors of the Company or any such Restricted SubsidiarySubsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking, as the case may be, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view, from an Independent Financial Advisor and shall provide such opinion view to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactionstransactions with an aggregate value of $15.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(bc) The foregoing restrictions set forth in clause (a) shall not apply to to:
(i1) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; Directors;
(ii2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii3) transactions effected as part of a Qualified Receivables Transaction;
(4) any agreement as in effect as of the Issue Effective Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Effective Date; ;
(iv5) Restricted Payments permitted by this Indenture;
(6) any Permitted Investment; and any loan, advance or other payment described in the third paragraph of Section 4.03;
(v7) transactions permitted by, and complying with, the provisions of Article Five hereof;
(8) any payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the covenant described funding of, employment arrangements and Plans approved by the Board of Directors of the Company;
(9) the grant of stock options or similar rights to employees and directors of the Company and its Subsidiaries pursuant to Plans and employment contracts approved by the Board of Directors of the Company;
(10) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in Section 5.01excess of $5.0 million at any one time outstanding;
(11) the granting or performance of registration rights under a written registration rights agreement approved by the Board of Directors of the Company;
(12) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(13) any agreement to do any of the foregoing;
(14) the payment of fees, reimbursements, indemnifications and other amounts pursuant to any agreements between the Company and Xxxxx & Company, L.P. with respect to the payment of investment banking and annual financial advisory fees;
(15) the Transactions;
(16) execution, delivery and performance of a tax sharing agreement with respect to Holding Related Taxes;
(17) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or senior management thereof or are on terms no less favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(18) any transaction in the ordinary course of business, or approved in good faith by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity.
Appears in 1 contract
Samples: Indenture (Bway Corp)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "“Affiliate Transaction"”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 the Company's ’s Board of Directors; provided, however, that for a transaction or series of related transactions with an aggregate value of $5.0 million or more, at the Company’s option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the Board of Directors of the Company or senior managementany such Restricted Subsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactions with an aggregate value of $20.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(iib) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii2) transactions effected as part of a Qualified Receivables Transaction;
(3) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; ;
(iv4) Restricted Payments permitted by this Indenture; ;
(5) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in excess of $10.0 million at any one time outstanding;
(6) Permitted Investments or Permitted Liens;
(7) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(8) reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors, consultants or employees of Holdings or any of its Restricted Subsidiaries (other than the THL Affiliates and the ECP Affiliates, which are set forth in clauses (9), (10) and (v11) below), as determined by the Board of Directors of the Company or any such Restricted Subsidiary or the senior management thereof in good faith, including, without limitations, issuances of stock, payment of bonuses and other transactions permitted bypursuant to employment or compensation agreements, stock option agreements, indemnification agreements and complying withother arrangements in effect on the Issue Date or substantially similar thereto;
(9) the payment, on a quarterly basis, of management fees to (A) THL and/or the THL Affiliates not to exceed $250,000 in any fiscal quarter and (B) ECP and/or the ECP Affiliates not to exceed $62,500 in any fiscal quarter, in each case in accordance with the management agreement between THL, the provisions THL Affiliates, ECP and/or the ECP Affiliates and Holdings;
(10) the reimbursement of THL, the THL Affiliates, ECP and/or the ECP Affiliates for the reasonable out-of-pocket expenses incurred by them in connection with performing management services to Holdings and its Restricted Subsidiaries;
(11) the payment of one-time fees to THL, the THL Affiliates, ECP and/or the ECP Affiliates in connection with acquisition transactions not prohibited by this Indenture, such fees to be payable at the time of each such acquisition and not to exceed (for all fees paid pursuant to this clause (11)) 2.5% of the covenant described in Section 5.01aggregate consideration paid by Holdings and its Restricted Subsidiaries for any such acquisition or such lesser amount as is then permitted pursuant to the Senior Credit Facility; and
(12) reasonable and customary fees paid to members of the Board of Directors of the Company, other than THL, the THL Affiliates, ECP and the ECP Affiliates. Notwithstanding the foregoing, the Company shall only pay one-half of any management or other fees or expenses permitted under clauses (9), (10) and (11) to the Equity Investors or their Affiliates at a time when a Default or an Event of Default exists; provided that such unpaid fees and/or expenses shall be paid at such time as such Default or Event of Default shall have been cured or waived.
Appears in 1 contract
Samples: Indenture (Vertis Inc)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 1.0 million shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 10.0 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 shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior managementDirectors; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not -------- otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous disadvanta- geous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted byin which the Company or any of its Restricted Subsidiaries, and complying withas the case may be, delivers to the provisions Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the covenant described first sentence of paragraph (a) above; (vi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or -------- ------- any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after that Issue Date shall only be permitted by this clause to the extent that the terms of any such, amendment or new agreement are not otherwise disadvantageous to the holders of the Securities in Section 5.01any material respect; (vii) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by Board of Directors of the Company in good faith and loans to employees of the Company and its Subsidiaries which are approved by the Board of Directors of the Company in good faith; (viii) the payment of all fees and expenses related to the Transactions; (ix) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and (x) fees payable to Apollo pursuant to the Management Agreement and the Shareholders Agreement.
Appears in 1 contract
Samples: Indenture (MTL Inc)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "“Affiliate Transaction"”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 the Company's ’s Board of Directors; provided, however, that for a transaction or series of related transactions with an aggregate value of $5.0 million or more, at the Company’s option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the Board of Directors of the Company or senior managementany such Restricted Subsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactions with an aggregate value of $20.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(iib) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii2) transactions effected as part of a Qualified Receivables Transaction;
(3) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; ;
(iv4) Restricted Payments permitted by this Indenture; ;
(5) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in excess of $15.0 million at any one time outstanding;
(6) Permitted Investments or Permitted Liens;
(7) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(8) reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors, consultants or employees of Holdings or any of its Restricted Subsidiaries, as determined by the Board of Directors of the Company or any such Restricted Subsidiary or the senior management thereof in good faith, including, without limitations, issuances of stock, payment of bonuses and other transactions pursuant to employment or compensation agreements, stock option agreements, indemnification agreements and other arrangements in effect on the Issue Date or substantially similar thereto;
(9) the payment or accrual, on a quarterly basis, of advisory or management fees to (A) Avenue and its Affiliates in an amount not to exceed $187,500 in any fiscal quarter and (vB) transactions permitted byAffiliates of Xxxxxxx Xxxxx and Trust Company of the West in an aggregate amount not to exceed $62,500 in any fiscal quarter, in each case in clauses (A) and complying with(B) in accordance with the management or advisory services agreement between such Persons (collectively, the provisions “Advisors”) and Holdings or any of its Subsidiaries and the provision of reasonable and customary indemnity to the Advisors in connection with any such agreement;
(10) the reimbursement of the covenant described Advisors for the reasonable out-of-pocket expenses incurred by them in Section 5.01connection with performing advisory or management services to Holdings and its Restricted Subsidiaries;
(11) the payment of one-time fees to the Advisors in connection with acquisition transactions not prohibited by this Indenture, such fees to be payable at the time of each such acquisition and not to exceed (for all fees paid pursuant to this clause 11) 2.5% of the aggregate consideration paid by Holdings and its Restricted Subsidiaries for any such acquisition or such lesser amount as is then permitted pursuant to the Senior Credit Facilities; and
(12) reasonable and customary fees paid to members of the Board of Directors of the Company, other than the Advisors and their respective Affiliates.
(13) fees paid to Advisors in connection with issuances or incurrence of Indebtedness by the Company or any Restricted Subsidiary to such Advisors (or in connection with amendments, waivers or forbearances of any such Indebtedness) and original issue discount in respect of any such Indebtedness.
Appears in 1 contract
Samples: Indenture (Webcraft LLC)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "“Affiliate Transaction"”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 the Company's ’s Board of Directors; provided, however, that for a transaction or series of related transactions with an aggregate value of $5.0 million or more, at the Company’s option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the Board of Directors of the Company or senior managementany such Restricted Subsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactions with an aggregate value of $20.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(iib) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; ;
(iii2) transactions effected as part of a Qualified Receivables Transaction;
(3) any agreement as in effect as of the Issue Date (as set forth in a list to be provided or approved pursuant to the Initial Purchasers on the Issue Date) Joint Plans or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; Date or as approved pursuant to the Joint Plans;
(iv4) Restricted Payments permitted by this Indenture; ;
(5) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in excess of $15.0 million at any one time outstanding;
(6) Permitted Investments or Permitted Liens;
(7) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(8) (A) reasonable and customary fees and compensation paid to, indemnity (including payment thereof) provided on behalf of, and reimbursement of reasonable out-of-pocket expenses incurred in connection with services provided by, officers, directors, consultants or employees of Holdings or any of its Restricted Subsidiaries (other than with respect to any fees and compensation paid to the Advisors which are set forth in clauses (9) and (v10) transactions permitted bybelow), and complying with, as determined by the provisions Board of Directors of the covenant Company or any such Restricted Subsidiary or the senior management thereof in good faith, including, without limitation, issuances of stock, payment of bonuses and other transactions pursuant to employment or compensation agreements, stock option agreements, indemnification agreements (including payments thereunder) and other arrangements in effect on the Issue Date or substantially similar thereto and (B) reimbursement of reasonable out-of-pocket expenses incurred by any Observer (as defined in the Stockholders’ Agreement) permitted to be present at any meeting of the Board of Directors of Holdings in connection with attending any such meeting;
(9) the accrual (but not payment), on a quarterly basis, of Advisory Fees to (A) the Avenue Advisors not to exceed $187,500 in the aggregate in any fiscal quarter pursuant to any Avenue Advisory Services Agreement and (B) the Xxxxxxx Advisors and the TCW Advisors, collectively, not to exceed $62,500 in the aggregate in any fiscal quarter pursuant to any Goldman Advisory Services Agreement or TCW Advisory Services Agreement, as applicable;
(10) (A) the reimbursement of the Avenue Advisors for all reasonable out-of-pocket expenses incurred by the Avenue Advisors pursuant to any Avenue Advisory Services Agreement, (B) the reimbursement of the Xxxxxxx Advisors for all reasonable out-of-pocket expenses incurred by the Xxxxxxx Advisors pursuant to any Goldman Advisory Services Agreement, (C) the reimbursement of the TCW Advisors for all reasonable out-of-pocket expenses incurred by the TCW Advisors pursuant to any TCW Advisory Services Agreement and (D) the provision of indemnities (including payment thereof) to the Advisors in connection with the agreements described in Section 5.01clauses (A), (B) and (C); and
(11) fees paid to Advisors and their Affiliates solely in their capacity as lenders or holders of Indebtedness (or prospective lenders or holders of Indebtedness) of the Company or any Restricted Subsidiary in connection with the issuance or incurrence of such Indebtedness (or in connection with amendments, waivers or forbearances of any such Indebtedness) and original issue discount in respect of any such Indebtedness.
Appears in 1 contract
Samples: Indenture (Webcraft LLC)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 5,000,000 shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 million10,500,000, 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 shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) above shall not apply to (i) reasonable fees and compensation paid to, loans or advances to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as payments or transactions pursuant to agreements in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted by, and complying with, the provisions any Investments by an Affiliate of the covenant described Company in Section 5.01the Capital Stock (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company.
Appears in 1 contract
Samples: Indenture (Air Rental Supply Inc)
Limitations on Transactions with Affiliates. (a) The Prior to the Effective Date, the Company shall not enter into or permit to exist any Affiliate Transactions other than to the extent necessary to consummate the Recapitalization, the Assumption and the transactions contemplated thereby.
(b) From and after the Effective Date, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "Affiliate Transaction"), --------------------- other than (x) Affiliate Transactions permitted under paragraph (bc) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, the Company or such Restricted Subsidiary, as the case may be, shallas determined in good faith by the Company's Board of Directors; provided, prior however, that for a transaction or -------- ------- series of related transactions with an aggregate value of $5.0 million or more, at the Company's option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or (ii) the Board of Directors of the Company or any such Restricted Subsidiary party to the consummation thereof, obtain such Affiliate Transaction shall have received a favorable opinion as from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the fairness of Company or such Restricted Subsidiary; provided, further, that for a transaction or series of related transactions to with an aggregate value of $15.0 million or more, the Board of Directors of the Company or the relevant Restricted Subsidiary, as the case may be, shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view, from an Independent Financial Advisor and shall provide such opinion view to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of Company or such transaction or series of related transactionsRestricted Subsidiary.
(bc) The foregoing restrictions set forth in clause (a) shall not apply to to:
(i1) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; Directors;
(ii2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by -------- this Indenture; ;
(iii3) transactions effected as part of a Qualified Receivables Transaction;
(4) any agreement as in effect as of the Issue Effective Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Effective Date; ;
(iv5) Restricted Payments permitted by this Indenture; and ;
(v6) any Permitted Investment;
(7) transactions permitted by, and complying with, the provisions of Article 5 hereof;
(8) any payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the covenant described funding of, employment arrangements and Plans approved by the Board of Directors of the Company;
(9) the grant of stock options or similar rights to employees and directors of the Company and its Subsidiaries pursuant to Plans and employment contracts approved by the Board of Directors of the Company;
(10) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in Section 5.01excess of $5.0 million at any one time outstanding;
(11) the granting or performance of registration rights under a written registration rights agreement approved by the Board of Directors of the Company;
(12) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(13) any agreement to do any of the foregoing;
(14) the payment of fees, reimbursements, indemnifications and other amounts pursuant to any agreements between the Company and Xxxxx & Co., L.P. with respect to the payment of investment banking and annual financial advisory fees; and
(15) transactions entered into on the Effective Date in connection with the Recapitalization and the financing therefor.
Appears in 1 contract
Samples: Indenture (Unilab Corp /De/)
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 3.0 million shall be approved by the Board of Directors of the CompanyCompany 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 payment or other property in excess fair market value of more than $5 10.0 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 shall provide such opinion to file the Trustee together same with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactionsTrustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to, to and indemnity provided on behalf of, officers, directors, employees employees, consultants or consultants investment bankers of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) -------- any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted byin which the Company or any of its Restricted Subsidiaries, and complying withas the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of this Section 4.12; (vi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the provisions Investors' Rights Agreement, the Securities Purchase Agreement, any stockholders' agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the covenant described Issue Date and any similar agreements which it may enter into thereafter; provided, however, that -------- ------- the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (vi) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in Section 5.01any material respect; (vii) the issuance of securities or other payments, awards or grants, in cash, securities or otherwise, pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company in good faith and loans to employees of the Company and its Subsidiaries which are approved by senior management of the Company in good faith; (viii) the payment of all fees and expenses related to the Transactions; (ix) transactions with customers, clients, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of 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; and (x) transactions reasonably related to (x) the exercise of rights and remedies with respect to the Convertible Subordinated Notes or (y) the conversion or exchange of the Convertible Subordinated Notes (each to the extent not otherwise prohibited in this Indenture).
Appears in 1 contract
Limitations on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to to, and in the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate 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 in excess of $2.5 million shall be approved by the Board of Directors of the Company, 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 payment or other property in excess of $5 millionbest interests of, 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 the Company's Board of Directors; PROVIDED, HOWEVER, that for a transaction or series of related transactions with an aggregate value of $5.0 million or more, at the Company's option (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Company or senior management; (ii) the Board of Directors of the Company or any such Restricted Subsidiary party to such Affiliate Transaction shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary; PROVIDED, FURTHER, that for a transaction or series of related transactions with an aggregate value of $20.0 million or more, the Board of Directors of the Company shall have received a favorable opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided PROVIDED such transactions are not otherwise prohibited by this Indenture; ;
(iii2) transactions effected as part of a Qualified Receivables Transaction;
(3) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; ;
(iv4) Restricted Payments permitted by this Indenture; ;
(5) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in excess of $10.0 million at any one time outstanding;
(6) Permitted Investments or Permitted Liens;
(7) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(8) reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors, consultants or employees of Holdings or any of its Restricted Subsidiaries (other than the THL Affiliates and the ECP Affiliates, which are set forth in clauses (9), (10) and (v11) below), as determined by the Board of Directors of the Company or any such Restricted Subsidiary or the senior management thereof in good faith, including, without limitations, issuances of stock, payment of bonuses and other transactions permitted bypursuant to employment or compensation agreements, stock option agreements, indemnification agreements and complying withother arrangements in effect on the Issue Date or substantially similar thereto;
(9) the payment, on a quarterly basis, of management fees to (A) THL and/or the THL Affiliates not to exceed $250,000 in any fiscal quarter and (B) ECP and/or the ECP Affiliates not to exceed $62,500 in any fiscal quarter, in each case in accordance with the management agreement between THL, the provisions THL Affiliates, ECP and/or the ECP Affiliates and Holdings;
(10) the reimbursement of THL, the THL Affiliates, ECP and/or the ECP Affiliates for the reasonable out-of-pocket expenses incurred by them in connection with performing management services to Holdings and its Restricted Subsidiaries;
(11) the payment of one-time fees to THL, the THL Affiliates, ECP and/or the ECP Affiliates in connection with acquisition transactions not prohibited by this Indenture, such fees to be payable at the time of each such acquisition and not to exceed (for all fees paid pursuant to this clause (11)) 2.5% of the covenant described in Section 5.01aggregate consideration paid by Holdings and its Restricted Subsidiaries for any such acquisition or such lesser amount as is then permitted pursuant to the Senior Credit Facility; and
(12) reasonable and customary fees paid to members of the Board of Directors of the Company, other than THL, the THL Affiliates, ECP and the ECP Affiliates. Notwithstanding the foregoing, the Company shall only pay one-half of any management or other fees or expenses permitted under clauses (9), (10) and (11) to the Equity Investors or their Affiliates at a time when a Default or an Event of Default exists; PROVIDED that such unpaid fees and/or expenses shall be paid at such time as such Default or Event of Default shall have been cured or waived.
Appears in 1 contract
Samples: Indenture (Big Flower Digital Services Delaware Inc)
Limitations on Transactions with Affiliates. (a) The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries towill, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, with or for the benefit of, of any of its Affiliates (each, other than transactions between the Company and a Wholly Owned Subsidiary of the Company or among Wholly Owned Subsidiaries of the Company) (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person person that is not an Affiliate; provided, however, that for a transaction or series of related transactions involving value of $5.0 million or more, such determination will be made in good faith by a majority of members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15.0 million or more, the Board of Directors of the Company has received an opinion from a nationally recognized investment banking firm that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary. All Affiliate Transactions The foregoing restrictions will not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any obligations of the Company under the Financial Monitoring and Oversight Agreements, or any employment agreement, noncompetition or confidentiality agreement with any officer of the Company (provided that each series amendment of related Affiliate Transactions which are any of the foregoing agreements shall be subject to the limitations of this covenant), (3) reasonable and customary investment banking, financial advisory, commercial banking and similar or part fees and expenses paid to the Initial Purchaser and its Affiliates, (4) any Restricted Payment permitted to be made pursuant to Section 4.10, (5) any issuance of a common plan) involving aggregate payments securities, or other property payments, awards or grants in excess of $2.5 million shall be cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, such approval (6) loans or advances to be evidenced by a Board Resolution stating that such Board employees in the ordinary course 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 payment or other property in excess of $5 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 shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(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 business of the Company or any Restricted Subsidiary of its Subsidiaries consistent with past practices, and (7) the issuance of Capital Stock of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Subsidiaries or exclusively between or among such Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date (as set forth in a list to be provided to the Initial Purchasers on the Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect other than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; and (v) transactions permitted by, and complying with, the provisions of the covenant described in Section 5.01Disqualified Stock).
Appears in 1 contract
