Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management fees, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiaries, as applicable, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holder, Affiliate or MCIT (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management fees, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter Enter into or permit to exist exist, directly or indirectly, any transaction (including, without limitation, including the purchase, sale, lease lease, or exchange of any property Asset or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 5% or holder more of any class of equity interests of Borrower or holders of any of its equity securities of the Borrower Subsidiaries or HoldingsAffiliates, or with any Affiliate of the Borrower or of any such holder, if such transaction is (other than Holdings, the Borrower and its Subsidiariesa) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiaries, as applicable, than those terms that might be obtained in an arm's length transaction at the time from Persons who are not such a holder, Subsidiary, or Affiliate, or (b) not negotiated in good faith on an arm’s length basis, in each case, other than: (i) subject to the Management Fee Subordination Agreement, the execution, delivery and performance of the agreements evidencing the obligation of the Borrower to pay management fees to the Adviser, (ii) the obligation of Borrower to reimburse the Adviser or any Affiliate of the Adviser for any fees or MCIT expenses, (iii) [reserved], (iv) obligations of any Subsidiary of Borrower under such Subsidiary’s Governing Documents, (v) discounts, reductions or forgiveness of any obligation of any Investor to reimburse or pay Borrower for management fees payable by Borrower to the Adviser (including reimbursement of any Investor for any management fees paid by such Investor), or (vi) transactions expressly permitted by this Agreement (including, any sale of assets by the Borrower to a Subsidiary in connection with any financing of such asset), in the case of each of clauses (i) through (vi), such transactions shall be on terms and conditions consistent with past practices. Other than with respect to immaterial transactions, and transactions described in clauses (i) through (vi) of this Section 6.7, prior to Borrower engaging in any such transaction or series permitted by this Section 6.7, the board of related transactions that are part directors of a common plan, an "Affiliate Transaction"), except to the extent Borrower shall determine that such Affiliate Transactions involve aggregate payments or other transfers transaction has been negotiated in good faith and on an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderarm’s length basis.
Appears in 2 contracts
Samples: Credit Agreement (Kayne DL 2021, Inc.), Credit Agreement (Kayne Anderson BDC, Inc.)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of five percent (5%) or holder more of any class of Capital Stock of Company or holders of any of its equity securities of the Borrower or Holdings, Restricted Subsidiaries or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryCompany or of any such holder, on terms that are less favorable to the Borrower Company or any of its that Restricted SubsidiariesSubsidiary, as applicablethe case may be, than those that might be obtained in an at arm's ’s length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate the foregoing restriction shall not apply to (a) any transactions among Subsidiary Guarantors; (b) reasonable and customary fees paid to members of the board of directors (or MCIT similar governing body) of Company and its Restricted Subsidiaries; (each c) ordinary course compensation and severance arrangements for officers and other employees of Company and its Restricted Subsidiaries; (d) issuances of Capital Stock to officers and other employees of Company; (e) 23A Transactions and other transactions in connection with or related to Bank Activities; (f) Ordinary Course of Business Activities, including ordinary course cash management and working capital funding arrangements, tax arrangements, and provision of overhead expenses, but excluding any such transaction or series of related transactions with Affiliates that are part not Credit Parties or Wholly-Owned Subsidiaries of a common planCredit Party; (g) Restricted Junior Payments paid in Cash permitted by Section 6.4; (h) Investments in Company or a Restricted Subsidiary permitted by Section 6.6; (i) transactions (other than Investments in, Indebtedness or Asset Sales to or from) involving Care Investment Trust, Inc.; (j) transactions between and among Restricted Subsidiaries that are Wholly-Owned Subsidiaries of the Subsidiary Guarantors; (k) any accommodation lease arrangements arising from cross-border leasing transactions with a subsidiary that is not a Credit Party entered into in the Ordinary Course of Business Activities; (l) transactions among the Company and its Restricted Subsidiaries permitted by Section 6.8; and (m) ordinary course transactions between an "Affiliate Transaction")owner trust, except its Owner-Trustee and the beneficiary of the owner trust, solely to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from relate to the operation and after the date hereof. Without in any way limiting the foregoing, without the prior written consent governance of the Required Lendersowner trust. Except as disclosed in public filings, the Borrower Company shall not agree to disclose in writing each transaction with any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment holder of five percent (5%) or more of any amounts payable thereunder, reduce the interest payable thereunder class of Capital Stock of Company or accept any non-cash consideration in payment of amounts payable thereunderits Restricted Subsidiaries or with any Affiliate of Company or of any such holder to Administrative Agent.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Cit Group Inc), Credit and Guaranty Agreement (Cit Group Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between or among the Borrower and any Guarantor; (ii) reasonable and customary fees paid to members of the Board of Directors of the Borrower and its Subsidiaries; (iii) (a) reasonable and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements and (b) reasonable incentive bonuses payable to officers and employees in connection with dispositions of assets of the Borrower or its Subsidiaries, in each case approved by the Board of Directors of the Borrower; (iv) a Permitted Holdco Transaction; (v) transactions or agreements between the Borrower and/or its Subsidiaries and Spinco and/or its Subsidiaries in contemplation of or to effect the Spin-Off and in connection with the Pick Rights; (vi) transfer pricing payments by the Borrower or any of its Subsidiaries to one another in the ordinary course of business and consistent with past practices or pursuant to any applicable requirements of Law; (vii) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods and services, in each case in the ordinary course of business and otherwise not prohibited by the Credit Documents; (viii) sales of the capital stock of the Borrower to Affiliates of the Borrower not otherwise prohibited by the Credit Documents and the granting of registration and other customary rights in connection therewith; (ix) any transaction with an Affiliate or MCIT where the only consideration paid by any Credit Party is the capital stock of the Borrower; (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"x) Restricted Payments permitted by Section 6.3; and (xi) Investments permitted by Section 6.4 (a), except (g) and (n), in the case of clause (n) of Section 6.4, solely with respect to the extent that such Affiliate Transactions involve aggregate payments or other transfers Investments in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderGuarantor Subsidiaries.
Appears in 2 contracts
Samples: Abl Credit and Guaranty Agreement (TiVo Corp), Credit and Guaranty Agreement (TiVo Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any material transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate the foregoing restriction shall not apply to (a) any transaction between Borrower and any Guarantor; (b) customary fees paid to members of the board of directors (or MCIT similar governing body) of Borrower and its Subsidiaries; (c) compensation arrangements for officers and other employees of Borrower and its Subsidiaries entered into in the ordinary course of business; (d) transactions described in Schedule 6.11; (e) the payment of transaction expenses in connection with this Agreement; and (f) entering into, making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of any Person and each Person who is or becomes a director, officer, agent or employee of the Borrower or any of its Subsidiaries, in respect of liabilities (i) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by Borrower, (ii) incurred to third parties for any action or failure to act of the Borrower or any of its Subsidiaries, predecessors or successors, (iii) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of the Borrower or any of its Subsidiaries, or is or was serving at the request of any such transaction corporation as a director, officer, employee or series agent of related transactions that are part of a common plananother corporation, an "Affiliate Transaction")partnership, except joint venture, trust or enterprise or (iv) to the fullest extent that such Affiliate Transactions involve aggregate payments permitted by Delaware or other transfers in an aggregate amount not to exceed $2,500,000 for all applicable state law, arising out of any breach or alleged breach by such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent indemnitee of his or her fiduciary duty as a director or officer of the Required Lenders, the Borrower shall not agree to or any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderits Subsidiaries.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Borrower shall, including performance by the applicable parties of the Obligations thereunderor shall permit any Borrower Subsidiary to, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management fees, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of more than five percent (5%) of any class of its equity securities Securities of the Borrower or Holdingsany Borrower, or with any other Affiliate of the any Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, :
(a) on terms that are less favorable to the such Borrower or any of its Restricted Subsidiariessuch Borrower Subsidiary, as applicable, than those that might be obtained in an arm's ’s length transaction at the time from Persons who are not such a holderholder or Affiliate;
(b) if such Affiliate transaction involves an amount in excess of $10,000,000, unless the terms of which are set forth in writing and a majority of the members of such Borrower or Borrower Subsidiary’s board of directors disinterested with respect to such Affiliate transaction have determined in good faith that the criteria set forth in clause (a) are satisfied and have approved the relevant Affiliate transaction as evidenced by a resolution of such board of directors; provided, that for purposes of this paragraph only, in the event of any Affiliate transaction involving the Parent, those members of the board of directors of the applicable Borrower or MCIT Borrower Subsidiary who are not Permitted Holders and are members of the board of directors of the Parent shall be deemed disinterested; or
(each c) if such Affiliate transaction involves an amount in excess of (i) $10,000,000 in the case of any Affiliate transaction between the Parent, on the one hand, and any Borrower or series any Borrower Subsidiary, on the other hand, or (ii) $20,000,000 in the case of related transactions that are part any other Affiliate transaction, unless the board of directors of the applicable Borrower or Borrower Subsidiary shall also have received a common plan, written opinion from an "Affiliate Transaction"), except Independent Qualified Party to the extent effect that such Affiliate Transactions involve aggregate payments transaction is fair, from a financial standpoint, to NMHG Holding and its Subsidiaries and the applicable Borrower or other transfers Borrower Subsidiary or not less favorable to NMHG Holding and its Subsidiaries and the applicable Borrower or Borrower Subsidiary than could reasonably be expected to be obtained at the time in an aggregate amount arm’s-length transaction with a Person who was not to exceed $2,500,000 an Affiliate. Nothing contained in this Section 9.08 shall prohibit (w) any transaction expressly permitted by Sections 9.01, 9.02, 9.04, 9.05 and 9.06; (x) increases in compensation and benefits for all officers and employees of any Borrower or any Borrower Subsidiary which are customary in the industry or consistent with the past business practice of such transactions from Borrower or such Subsidiary, provided that no Event of Default or Default has occurred and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for is continuing; (y) payment of customary directors’ fees and indemnities; or (z) performance of any amounts payable thereunder, reduce obligations arising under the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Nacco Industries Inc), Credit Agreement (NMHG Holding Co)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate as determined in good faith by the disinterested members of the Board of Directors of the Borrower; provided, Affiliate the foregoing restriction shall not apply to (a) any transaction between Borrower and any Guarantor Subsidiary (other than Real Estate Guarantors); (b) reasonable and customary fees paid to members of the board of directors (or MCIT similar governing body) of Borrower and its Subsidiaries; (each such transaction or series c) compensation arrangements for officers and other employees of related transactions that are part Borrower and its Subsidiaries entered into in the ordinary course of a common plan, an "Affiliate Transaction"), except business; (d) the provision of officers’ and directors’ indemnification and insurance in the ordinary course of business to the extent that such Affiliate Transactions involve aggregate payments or other transfers permitted by applicable law; (e) transactions described in an aggregate amount not Schedule 6.10; (f) Indebtedness may be incurred to exceed $2,500,000 for all such transactions from the extent permitted by Section 6.1(c)(i), Section 6.1(n)(i), Section 6.1(n)(ii) and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to Section 6.1(p) ; (g) Investments may be made to the extent permitted by Section 6.6(i); (h) sublease agreements between Real Estate Guarantors and any of the Credit Parties that operate a retail store, warehouse, distribution center or other business on any Leasehold Property; (i) any Investment by a Restricted Sponsor Affiliates in (A) the Equity Interests of the Borrower (that are not Disqualified Equity Interests) and (B) debt Securities (that are not Disqualified Equity Interests) that are otherwise permitted to be issued by Borrower in connection with Indebtedness permitted to be incurred under Section 6.1(o) and (j) Indebtedness owed to Restricted Sponsor Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay pursuant to this Agreement and/or the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderFirst Lien Credit Agreement.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Movie Gallery Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsHolding and its Subsidiaries will not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 5% or holder or holders more of any class of its equity securities of the Holding or Borrower or Holdings, or with any Affiliate of Holding or Borrower or of any such holder, as the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiarycase may be, on terms that are less favorable to the Borrower Holding or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be 114 obtained in an arm's length transaction at the time from Persons who are not such a holderholder or Affiliate; provided that with respect to any transaction or series of related transactions involving aggregate payments or value equal to or greater than $1,000,000, Affiliate or MCIT (each Borrower shall have delivered an officer's certificate to Administrative Agent certifying that such transaction or series of related transactions that are part comply with the provisions of a common planthis subsection 6.10 and, an "Affiliate Transaction"), except with respect to the extent that such Affiliate Transactions involve any transaction or series of transactions involving aggregate payments or other transfers in an aggregate amount not value equal to exceed or greater than $2,500,000 for all 5,000,000, further certifying that such transaction or series of transactions from and after have been approved by a majority of the date hereofBoard of Directors of Borrower, including a majority of the disinterested directors of the Board of Directors of Borrower. Without in any way limiting For the purposes of the foregoing, without the prior written consent a director of the Required Lenders, the Borrower shall not agree be considered "interested" with respect to any modification ofa transaction solely by virtue of being a director of the other party to such transaction. Borrower shall be deemed to have complied with the foregoing provisions if it has obtained a written opinion from an Independent Financial Advisor stating that the terms of such transaction or series of transactions are fair to Holding or Subsidiary, nor as the case may be, from a financial point of view. The foregoing restrictions shall it permit, any modification not apply to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for (i) payment of Transaction Costs and payments permitted under subsection 6.5, (ii) any amounts payable thereundertransaction between Borrower and any of its wholly-owned Subsidiaries (other than BB Capital) or between any of its wholly-owned Subsidiaries (other than BB Capital), reduce (iii) customary fees paid to members of the interest payable thereunder Boards of Directors of Borrower and its Subsidiaries, (iv) reasonable financial advisory arrangements for services rendered by Xxxxxxx Xxxxx or accept any nonof its Affiliates to Borrower or any of its Subsidiaries, (v) arms-cash consideration length transactions in payment the ordinary course of amounts payable thereunderbusiness with other companies managed by MLCP or Stonington Partners, Inc., (vi) transactions between Borrower and BB Capital expressly permitted by this Agreement or (vii) allocation of tax benefits in accordance with the terms of the Tax Allocation Agreement.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsHoldings shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 5% or holder or holders more of any class of its equity securities Securities of the Borrower or Holdings, Holdings or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that are less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderholder or Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Holdings and any of its wholly owned Subsidiaries or between any of its wholly owned Subsidiaries, Affiliate (ii) any payment from Company to Holdings expressly permitted under subsection 7.5, (iii) the payment of Management Fees to Bxxx under the Bxxx Advisory Services Agreement, (iv) the payment of Harvard Management Fees under the Harvard Advisory Services Agreement, (v) any employment agreement entered into by Holdings or MCIT any of its Subsidiaries in the ordinary course of business, (each such transaction vi) any issuance of capital stock of Holdings in connection with employment arrangements, stock options and stock ownership plans of Holdings or series any of related transactions that are part its Subsidiaries entered into in the ordinary course of a common planbusiness, an "Affiliate Transaction")(vii) reasonable and customary fees paid to members of the Boards of Directors of Holdings and its Subsidiaries, except to the extent that such Affiliate Transactions involve aggregate payments or other transfers and (viii) in an aggregate amount not to exceed $2,500,000 for all such transactions from addition to, and after the date hereof. Without in any way without limiting the foregoing, without Holdings shall not permit total Affiliate Exposure (other than with respect to Company), together with (y) any cash payments by Holdings or any of its Subsidiaries for the prior written consent purpose of the Required Lendersrepayment, whether directly or indirectly, of any existing Indebtedness of MF and (z) any consideration payable (including without limitation all payment, whether direct or indirect, whether in Cash or in kind and similar to items listed in the definition of Affiliate Exposure set forth in Section 1 hereto) by Holdings or any of its Subsidiaries with respect to the MD or any purchaser of MD or its assets (in each case, so long as MD is an Affiliate), to exceed $20,000,000 in the aggregate; provided, however, that with respect to (a) any other investment or transaction with Affiliates or any transaction with MD or its Subsidiaries or any purchaser of MD or its assets (in each case, so long as MD is an Affiliate), in each case involving consideration in excess of $3,000,000 but not in excess of $5,000,000, a majority of the disinterested members of the Board of Directors of Company shall determine in good faith that such Affiliate Transaction is on terms that are not materially less favorable than those that might be reasonably obtained in a comparable transaction at such time on an arms’-length basis from a Person that is not an Affiliate of Holdings or any of its Subsidiaries and (b) any other Investment or transaction with Affiliates or any transaction with MD or its Subsidiaries or any purchaser of MD or its assets (in each case, so long as MD is an Affiliate), in each case involving consideration in excess of $5,000,000, the Borrower Board of Directors of Company or any such Subsidiary party to such Affiliate Transaction shall not agree to any modification of, nor shall it permit, any modification to be made have received an opinion from a nationally recognized investment banking firm reasonable acceptable to the Agents and stating that such Affiliate Notes, nor shall it forgive Transaction is on terms not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arms’-length basis from a Person that is not an Affiliate of Holdings or any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderits Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management feesto, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are materially less favorable favorable, taken as a whole (as determined in good faith by Borrower), to the Borrower or any of its that Restricted SubsidiariesSubsidiary, as applicablethe case may be, than those that might be obtained in an arm's ’s length transaction at with a Person that is not an Affiliate; provided, the time from Persons who foregoing restriction shall not apply to
(a) any transaction between Borrower and any Guarantor or between or among Credit Parties or between or among Subsidiaries that are not such a holder, Affiliate or MCIT Credit Parties;
(each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to b) Restricted Junior Payments may be made to the extent permitted by Section 6.04;
(c) loans may be made and other transactions may be entered into by Borrower and its Restricted Subsidiaries to the extent permitted by Sections 6.01, 6.06 and 6.07;
(d) any transaction with an Affiliate Noteswhere the only consideration paid is Equity Interests of Borrower (other than Disqualified Equity Interests);
(e) pledges of capital stock of an Unrestricted Subsidiary to secure Indebtedness of such Unrestricted Subsidiary and
(f) transactions described in Schedule 6.09 and any amendments to agreements described in Schedule 6.09 to the extent such amendment is not adverse, nor taken as a whole, to the Lenders in any material respect. For the avoidance of doubt, this Section shall it forgive not apply to employment arrangements with, and payments of compensation, expense reimbursement, indemnification or benefits to or for the benefit of, current or former employees, officers or directors of Borrower or any amounts payable thereunderRestricted Subsidiary, delay the date for payment in each case, in their capacity as current or former employees, officers or directors of Borrower or any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderRestricted Subsidiary.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which involving aggregate payments or consideration in excess of $2,500,000 unless such transaction is not its Restricted Subsidiary, on terms that are less at least as favorable to Borrower or that Restricted Subsidiary, as the case may be, as those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of Borrower; provided, the foregoing restriction shall not apply to (a) any transaction between Borrower and any Restricted Subsidiary or by and among Restricted Subsidiaries; (b) reasonable and customary fees and reimbursement of expenses of directors, officers, managers, employees or consultant of Borrower or any of its Restricted Subsidiaries; (c) compensation and compensation arrangements for present or future officers, as applicableconsultants, than those directors and other employees of Borrower and its Subsidiaries (including bonuses) and other benefits (including health, retirement, stock option and other benefit plans) entered into in the ordinary course of business; (d) any issuance of Equity Interests of Borrower to Affiliates of Borrower; (e) transactions with customers, clients, suppliers and purchasers or sellers of goods and services (including pursuant to joint venture agreements) otherwise in compliance with the terms hereof that might be obtained in an arm's length transaction at the time from Persons who are not such materially less favorable taken as a holder, Affiliate whole than what Borrower and its Restricted Subsidiaries might reasonably have obtained from an unaffiliated party; (f) loans or MCIT (each such transaction or series advances to employees in the ordinary course of related transactions that are part of a common plan, an "Affiliate Transaction"), except to the extent that such Affiliate Transactions involve aggregate payments or other transfers business in an aggregate amount not to exceed $2,500,000 for all such transactions from 5,000,000; (g) dividends permitted by Section 6.4; (h) mergers, amalgamations, consolidations and after intercompany dispositions expressly permitted by Section 6.8; (i) license agreements relating to Intellectual Property granted by Borrower or its Restricted Subsidiaries in the date hereof. Without ordinary course of business and not interfering in any way limiting material respect with the foregoingordinary conduct of business of Borrower and its Restricted Subsidiaries, without the prior written consent provided that any such exclusive licenses or sublicenses are not licenses or sublicenses of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made Intellectual Property material to the business of Borrower or its Restricted Subsidiaries; (j) sales of Disqualified Equity Interests of Borrower to Affiliates not otherwise prohibited by the Credit Documents and the granting of registration and other customary rights in connection therewith; and (k) any transaction with an Affiliate Notes, nor shall it forgive where the only consideration paid by Borrower or any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment its Restricted Subsidiaries is Disqualified Equity Interests of amounts payable thereunderBorrower.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Casino & Entertainment Properties LLC)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate as determined in good faith by the disinterested members of the Board of Directors of the Borrower; provided, Affiliate the foregoing restriction shall not apply to (a) any transaction between Borrower and any Guarantor Subsidiary (other than Real Estate Guarantors); (b) reasonable and customary fees paid to members of the board of directors (or MCIT similar governing body) of Borrower and its Subsidiaries; (each such transaction or series c) compensation arrangements for officers and other employees of related transactions that are part Borrower and its Subsidiaries entered into in the ordinary course of a common plan, an "Affiliate Transaction"), except business; (d) the provision of officers’ and directors’ indemnification and insurance in the ordinary course of business to the extent that such Affiliate Transactions involve aggregate payments permitted by applicable law; (e) transactions described in Schedule 6.11; (f) Indebtedness may be incurred to the extent permitted by Sections 6.1(c)(i), (n)(i), (n)(ii), (p) or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to (r); (g) Investments may be made to the extent permitted by Section 6.6(i); (h) sublease agreements between Real Estate Guarantors and any of the Credit Parties that operate a retail store, warehouse, distribution center or other business on any Leasehold Property; (i) any Investment by a Restricted Sponsor Affiliate Notesin (A) the Equity Interests of the Borrower (that are not Disqualified Equity Interests) and (B) debt Securities (that are not Disqualified Equity Interests) that are otherwise permitted to be issued by Borrower in connection with Indebtedness permitted to be incurred under Section 6.2(o), nor shall it forgive any amounts payable thereunder, delay and (j) Indebtedness owed to a Restricted Sponsor Affiliate pursuant to this Agreement and/or the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderSecond Lien Credit Agreement.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Movie Gallery Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsThe Borrowers shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its their Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of a Borrower, except, that the Borrower Borrowers and their Restricted Subsidiaries may enter into and permit to exist:
(other than Holdings, the Borrower and its Subsidiariesi) which is not its Restricted Subsidiary, transactions that are on terms that are not less favorable to the that Borrower or any of its Restricted SubsidiariesSubsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderan Affiliate if (a) Borrowers have delivered to the Administrative Agent (1) with respect to any transaction involving an amount in excess of $1,000,000, Affiliate or MCIT (each an Officers Certificate certifying that such transaction complies with this subsection 7.10, (2) with respect to any transaction involving an amount in excess of $2,000,000, a resolution adopted by a majority of the disinterested non-employee directors of the applicable Borrower or series Restricted Subsidiary approving such transaction and an Officers Certificate certifying that such transaction complies with this subsection 7.10, at the time such transaction is entered into and (c) with respect to any such transaction that involves aggregate payments in excess of related transactions $15,000,000 or that are part is a loan transaction involving a principal amount in excess of a common plan$15,000,000, an "Affiliate Transaction"), except opinion as to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent fairness of the Required Lendersfinancial terms to the applicable Borrower or Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor at the time such transaction is entered into,
(ii) the Services Agreement;
(iii) purchases of materials or services from a Supplier Joint Venture by the Borrowers or any of their Restricted Subsidiaries in the ordinary course of business on arm's length terms;
(iv) any employment, compensation, indemnification, noncompetition or confidentiality agreement or arrangement entered into by the Borrowers or any of their Restricted Subsidiaries with their employees or directors or directors of LVSC in the ordinary course of business or as approved by a majority of the independent members of the board of directors of the Borrowers or any of their Restricted Subsidiaries (or by a committee of such board, the Borrower shall not agree majority of which consists of independent directors) in its reasonable determination, including the employment agreements referred to any modification of, nor shall it permit, any modification in Section 6.14;
(v) loans or advances to be made to employees of the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay Borrowers or their Restricted Subsidiaries permitted under subsection 7.3(vi) or (x); (vi) the date for payment of any amounts payable thereunder, reduce reasonable fees to directors of the interest payable thereunder Borrowers and their Restricted Subsidiaries who are not employees of the Borrowers or accept any non-cash consideration in payment of amounts payable thereunder.their Restricted Subsidiaries;
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsThe Borrowers shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its their Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of a Borrower, except, that the Borrower Borrowers may enter into and permit to exist:
(other than Holdings, the Borrower and its Subsidiariesi) which is not its Restricted Subsidiary, transactions that are on terms that are not less favorable to the that Borrower or any of its Restricted SubsidiariesSubsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderan Affiliate if (a) Borrowers have delivered to the Administrative Agent (1) with respect to any transaction involving an amount in excess of $500,000, Affiliate or MCIT (each an Officers Certificate certifying that such transaction complies with this subsection 7.10, (2) with respect to any transaction involving an amount in excess of $2,000,000, a resolution adopted by a majority of the disinterested non-employee directors of the applicable Borrower or series Restricted Subsidiary approving such transaction and an Officers Certificate certifying that such transaction complies with this subsection 7.10, at the time such transaction is entered into and (c) with respect to any such transaction that involves aggregate payments in excess of related transactions $15,000,000 or that are part is a loan transaction involving a principal amount in excess of a common plan$15,000,000, an "Affiliate Transaction"opinion as to the fairness of the financial terms to the applicable Borrower or Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor at the time such transaction is entered into,
(ii) the Services Agreement;
(iii) purchases of materials or services from a Joint Venture Supplier by the Borrowers or any of their Restricted Subsidiaries in the ordinary course of business on arm's length terms;
(iv) any employment, indemnification, noncompetition or confidentiality agreement entered into by the Borrowers or any of their Restricted Subsidiaries with their employees or directors in the ordinary course of business;
(v) loans or advances to employees of the Borrowers or their Restricted Subsidiaries permitted under subsection 7.3(vi) or (xi);
(vi) the payment of reasonable fees to directors of the Borrowers and their Restricted Subsidiaries who are not employees of the Borrowers or their Restricted Subsidiaries;
(vii) the grant of restricted stock, except stock options or similar rights to employees and directors of either of the Borrowers pursuant to agreements or plans approved by the Board of Directors of LVSI and any repurchases of stock or options of the Borrowers from such employees to the extent permitted by subsection 7.5;
(viii) transactions between or among Borrowers and any of their wholly-owned Subsidiaries;
(ix) the transactions contemplated by each Project Document;
(x) the transactions contemplated by the Cooperation Agreement;
(xi) the transactions contemplated by the HVAC Services Agreement;
(xii) the use of the Congress Center or the meeting space in the Phase I-A Project by the owner of the Sands Expo and Convention Center; PROVIDED that Venetian receives fair market value for the use of such Affiliate Transactions involve aggregate payments property, as determined in the reasonable discretion of LVSI's Board of Directors;
(xiii) the Borrowers may enter into and perform their obligations under a gaming, operations lease or management agreement with Phase II Subsidiary or any of its Subsidiaries relating to the casino to be operated in the casino resort owned by the Phase II Subsidiary or any of its Subsidiaries on terms substantially similar to those of the Casino Lease except that (a) the rent payable under such lease shall be equal to all revenues derived from such casino minus the sum of (1) the operating costs related to such casino (including an allocated portion (based on gaming revenue) of the Borrower's administrative costs related to its gaming operations) and (2) the lesser of $250,000 or 1.0% of such casino's operating income (or zero if there is an operating loss) (determined in accordance with GAAP), (b) the Borrowers may agree that they shall operate the casino in the casino resort owned by the Phase II Subsidiary and the casino in the Project in substantially similar manners and (c) the Borrowers may agree to have common gaming and surveillance operations in such casinos (based on equal allocations of revenues and operating costs).
(xiv) employees of Interface may participate in LVSI's 401(k) Retirement Plan if Interface reimburses the Borrowers for a pro rata portion of the administrative expenses of such plan based on the number of employees of each of Interface and LVSI participating in such plan;
(xv) transactions contemplated by the Interface Lease;
(xvi) the Borrowers may reimburse Yona Aviation Services, Inc., or its successors for its operating and lease costs related to the use of its aircraft by the Borrower's employees (based on the actual allocated costs and time of usage);
(xvii) transactions contemplated by the Restaurant Leases;
(xviii) transactions contemplated by the Billboard Master Lease and the other transfers master leases;
(xix) the preferred reservation system agreement, one or more meeting services agreements, one or more agreements for the use of any space in the Expo Center, and one or more management or operating agreements with respect to the Expo Center, each as may be amended from time to time, and entered into with or required to be entered into with Interface Group--Nevada, Inc. in accordance with that certain Loan Agreement, dated as of June 28, 2001, by and between Bear, Stearns Funding, Inc. and Interface Group--Nevada, Inc.;
(xx) (i) license agreements with a Macau Entity and (ii) any other agreements with a Macau Entity, provided the terms of such other agreement under clause (ii) or any amendment to such agreement are no less favorable to the Borrowers or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Borrowers or such Restricted Subsidiary with an aggregate amount not unrelated Person;
(xxi) a stockholders' agreement entered into among the Borrowers and the stockholders of LVSI, dated as of January 2, 2002, as amended from time to exceed $2,500,000 for all such transactions from and time;
(xxii) Subordinated Indebtedness to Adelson, his Affiliates and/or his Related Parties that has x xxxxxity date that matures after the date hereof. Without in any way limiting the foregoing, without the prior written consent of maturity of the Required LendersTerm B Loans, the Borrower shall that does not agree to pay any modification of, nor shall it permit, any modification to be made cash interest and that is subordinated in right of payment to the Affiliate Notespayment in full of the Loans;
(xxiii) issuances of Securities by the Borrowers;
(xxiv) Investments in and licenses and other agreements with Joint Ventures permitted hereunder;
(xxv) the Phase I-A Lease and the transactions contemplated thereunder and the contemplated transfer of the Phase I-A Airspace to Venetian;
(xxvi) any agreement by the owner of the Macau Project to pay Macau Fees to the Borrowers or a Restricted Subsidiary directly or indirectly;
(xxvii) any registration rights agreement to provide for the registration under the Securities Act of the capital stock interests held by Affiliates;
(xxviii) the Agreement between Mall Subsidiary and New Mall Subsidiary, nor shall it forgive any amounts payable thereunderdated as of the Closing Date, delay whereby Mall Subsidiary provides employee services to New Mall Subsidiary;
(xxix) Investments permitted by subsection 7.3 and Restricted Payments permitted by Subsection 7.5;
(xxx) transactions consummated on the date for payment Closing Date in connection with the Restructuring;
(xxxi) the IPO Restructuring and the transactions contemplated thereby;
(xxxii) transactions permitted by subsection 7.7; and
(xxxiii) an agreement with Interface to provide audio visual, telecommunications, electrical, janitorial and other related services to group customers of any amounts payable thereunder, reduce (a) the interest payable thereunder or accept any nonPhase I-cash consideration in payment of amounts payable thereunder.A Project meeting space and (b) the Phase I Project;
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements(a) The Borrower will not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor will not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) 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 any Jordan Stockholderwith, Managementor for the benefit of, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiaries, as applicable, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holder, Affiliate or MCIT Affiliates (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except unless: (i) the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the extent Borrower; (ii) in the event that such Affiliate Transactions involve Transaction involves aggregate payments, or transfers of property or services with a fair market value in excess of $1.0 million, the terms of such Affiliate Transaction shall be approved by a majority of the members of the Board of Directors of the Borrower, such approval to be evidenced by a resolution of the Board of Directors of the Borrower stating that such Board of Directors has determined that such transaction complies with the foregoing provisions and (iii) in the event that such Affiliate Transaction involves aggregate payments or other transfers or services with a fair market value in an aggregate amount not excess of $10.0 million, the Borrower shall, prior to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting consummation thereof, obtain the written approval of First Union with respect to the terms thereof.
(b) Notwithstanding the foregoing, without the prior written consent restrictions set forth in paragraph (a) shall not apply to (i) transactions with or among the Borrower and any Wholly-Owned Subsidiary of the Required LendersBorrower or between or among Wholly-Owned Subsidiaries of the Borrower; (ii) reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Borrower shall not agree or any Subsidiary of the Borrower as determined in good faith by the Borrower's Board of Directors; (iii) any transactions undertaken pursuant to any modification ofContractual Obligations or rights set forth in Schedule D (as in effect on the Closing Date) and any renewals thereof or amendments thereto; provided, nor shall it permitthat such renewals or amendments do not materially -------- change the rights and obligations of the Borrower and its Subsidiaries; (iv) any Investments made in compliance with clause (iv) of the definition of Permitted Investments; (v) loans and advances to officers, directors and employees of the Borrower or any modification Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business, (vi) the entering into by the Borrower and any of its consolidated Subsidiaries of a tax sharing or similar arrangement with Glass Holdings and its Affiliates other than AGY Holdings; provided, that any such tax sharing agreement shall, prior to the consummation thereof, be approved by First Union and (vii) any Restricted Payments permitted to be made pursuant to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderSection 6.3.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (BGF Industries Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 10% or holder more of any class of Capital Stock of Holdings or holders of any of its equity securities of the Borrower or Holdings, Subsidiaries or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that taken as a whole are materially less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate the foregoing restriction shall not apply to:
(a) any transaction between Company and any Guarantor Subsidiary, and transactions among Foreign Subsidiaries;
(b) reasonable and customary fees paid to members of the governing body of Holdings and its Subsidiaries;
(c) any Restricted Junior Payment permitted by Section 6.5;
(d) loans or MCIT advances to employees permitted by Section 6.7(i);
(each e) reasonable fees and compensation, benefits and incentive arrangements paid or provided to, and any indemnities provided to, officers, directors and employees of any Parent Company or any of its Subsidiaries as determined in good faith by the governing body of any Parent Company or Company;
(f) the existence of, or the performance by any Parent Company or any of its Subsidiaries of their 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 Closing Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by any Parent Company or any of its Subsidiaries of obligations under any future amendment to any such transaction existing agreement or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except under any similar agreement entered into after the Closing Date shall only be permitted by this clause to the extent that the terms of any such Affiliate Transactions involve aggregate amendment or new agreement are not disadvantageous to Agents or Lenders in any material respect;
(g) any management, financial advisory, financing, underwriting or placement services or any other investment banking, banking or similar services involving any Parent Company or any of its Subsidiaries (including without limitation any payments in cash, Capital Stock or other transfers consideration made by any Parent Company or any of its Subsidiaries in an aggregate amount not to exceed $2,500,000 for all such connection therewith) on the one hand and the Sponsors on the other hand, which services (and payments and other transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent connection therewith) are approved by a majority of the Required Lenders, members of the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment governing body of any amounts payable thereunder, reduce Parent Company or Company in good faith; and
(h) the interest payable thereunder issuance or accept sale of any non-cash consideration in payment of amounts payable thereunderCapital Stock by Holdings other than to a Credit Party.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Kraton Polymers LLC)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management feesEnter into, consulting fees, investment banking fees renew or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist extend any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder (or holder any Affiliate of such holder) of 5% or holders more of any class of its equity securities Capital Stock of the Borrower or Holdings, Parent or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Parent or any Restricted Subsidiary, on except upon fair and reasonable terms that taken as a whole are no less favorable to the Borrower Parent and such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-length transaction with a Person that is not such a holder or an Affiliate.
(ii) The foregoing limitation does not limit, and shall not apply to:
(A) transactions (x) approved by a majority of the disinterested members of the Board of Directors or (y) for which the Parent or a Restricted Subsidiary delivers to the Administrative Agent a written opinion of a nationally recognized investment banking firm stating that the transaction is fair to the Parent (in a transaction not involving a Restricted Subsidiary) or such Restricted Subsidiary from a financial point of view, or is upon terms that taken as a whole are no less favorable to the Parent (in a transaction not involving a Restricted Subsidiary) or such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction;
(B) any transaction solely between or among the Parent and any of its Wholly Owned Restricted Subsidiaries to the extent such transactions are in the ordinary course of business or solely between or among between Wholly Owned Restricted Subsidiaries, as applicable, than those that might be obtained in an arm's length transaction at ;
(C) the time from Persons payment of reasonable and customary regular fees to directors of the Parent who are not employees of the Parent;
(D) any payments or other transactions pursuant to any tax-sharing agreement between the Parent and any other Person with which the Parent files a consolidated tax return or with which the Parent is part of a consolidated group for tax purposes; or
(E) any Restricted Payments (or a transaction excluded from the definition of the term "RESTRICTED PAYMENTS") not prohibited by Section 5.02(b).
(F) transactions consisting of or pursuant to employment or benefit agreements, plans, programs or arrangements for or with, or indemnification or contribution obligations to, employees, officers or directors in the ordinary course of business;
(G) the entering into of the Securities Purchase and Cancellation Agreement, the 1999 Share Option Plan, the Securities Purchase Agreement, the Registration Rights Agreement and the Securityholders' Agreement, as described in the Offering Memorandum dated February 12, 1999 as amended or supplemented, and performance of the obligations and the transactions contemplated thereby; or
(H) issuances or sales of Capital Stock (other than Disqualified Stock) of the Parent or options, warrants or other rights to acquire such a holderCapital Stock.
(iii) Notwithstanding the foregoing, Affiliate or MCIT (each such any transaction or series of related transactions that are part covered by paragraph (i) above and not covered by clauses (B) through (H) of a common plan, an "Affiliate Transaction"paragraph (ii), except to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed of which exceeds $2,500,000 for all such transactions from and after the date hereof. Without 2 million in any way limiting the foregoingvalue, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification must be approved or determined to be made to fair in the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date manner provided for payment of any amounts payable thereunder, reduce the interest payable thereunder in clause (A)(x) or accept any non-cash consideration in payment of amounts payable thereunder(y) above.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 10% or holder more of any class of Capital Stock of Holdings or holders of any of its equity securities of the Borrower or Holdings, Subsidiaries or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that taken as a whole are materially less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate the foregoing restriction shall not apply to:
(a) any transaction between Company and any Guarantor Subsidiary, and transactions among Foreign Subsidiaries;
(b) reasonable and customary fees paid to members of the governing body of Holdings and its Subsidiaries;
(c) any Restricted Junior Payment permitted by Section 6.5;
(d) loans or MCIT advances to employees permitted by Section 6.7(i);
(each e) reasonable fees and compensation, benefits and incentive arrangements paid or provided to, and any indemnities provided to, officers, directors and employees of any Parent Company or any of its Subsidiaries as determined in good faith by the governing body of any Parent Company or Company;
(f) the existence of, or the performance by any Parent Company or any of its Subsidiaries of their 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 date hereof and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by any Parent Company or any of its Subsidiaries of obligations under any future amendment to any such transaction existing agreement or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except under any similar agreement entered into after the date hereof shall only be permitted by this clause to the extent that the terms of any such Affiliate Transactions involve aggregate amendment or new agreement are not disadvantageous to Agents or Lenders in any material respect;
(g) any management, financial advisory, financing, underwriting or placement services or any other investment banking, banking or similar services involving any Parent Company or any of its Subsidiaries (including without limitation any payments in cash, Capital Stock or other transfers consideration made by any Parent Company or any of its Subsidiaries in an aggregate amount not to exceed $2,500,000 for all such connection therewith) on the one hand and the Sponsors on the other hand, which services (and payments and other transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent connection therewith) are approved by a majority of the Required Lenders, members of the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment governing body of any amounts payable thereunder, reduce Parent Company or Company in good faith; and
(h) the interest payable thereunder issuance or accept sale of any non-cash consideration in payment of amounts payable thereunderCapital Stock by Holdings other than to a Credit Party.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Kraton Polymers LLC)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsCompany shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 5% or holder or holders more of any class of its equity securities Securities of the Borrower or Holdings, Company or with any Affiliate of Company or of any such holder, (A) in the Borrower case of any agreement or arrangement pursuant to which any Loan Party is obligated to pay any amounts to LGP (including any of its Affiliates other than Holdings), without the Borrower prior written consent of Administrative Agent, Syndication Agent and its SubsidiariesRequisite Lenders, and (B) which is not its Restricted Subsidiaryin all other cases, on terms that are less favorable to the Borrower Company or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderholder or Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Company and any of its wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries, Affiliate (ii) reasonable and customary fees and reimbursement of expenses paid to members of the Governing Bodies of Company and its Subsidiaries, (iii) the transactions contemplated by this Agreement and the Related Agreements to occur on or MCIT after the Closing Date (each such transaction or series including, without limitation, payment of related transactions that are part principal and interest on the UK Loan Notes and consummation of a common plan, an "Affiliate Transaction"the Put/Call Agreements), except (iv) indemnification payments to the extent that such Affiliate Transactions involve aggregate officers or directors of Loan Parties, (v) payments or other transfers loans to employees which are approved by a majority of the Governing Body of Company or are made pursuant to agreements, arrangements or plans approved by a majority of the Governing Body of Company, (vi) any transaction as in an aggregate amount not to exceed $2,500,000 for all such transactions from and after effect as of the date hereof. Without hereof and set forth on Schedule 7.9, (vii) employment agreements of senior management of Company as in any way limiting the foregoing, without the prior written consent effect as of the Required Lenders, date hereof or otherwise approved by the Borrower shall not agree to Governing Body of Company and (viii) any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderRestricted Junior Payment permitted by subsection 7.5.
Appears in 1 contract
Samples: Credit Agreement (FTD Group, Inc.)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, Atlantic Power or Holdings on terms that are less favorable to the Borrower or any of its Restricted Subsidiariessuch Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who is not an Affiliate; provided, the foregoing restriction shall not apply to (a) any transaction (x) between or among Borrower and/or any Guarantors and (y) among Subsidiaries of Borrower that are not Guarantors; (b) any indemnity provided to and any reasonable and customary fees paid to members of (i) in the case of Borrower, the board of directors (or similar governing body) of the General Partner, acting on behalf of Borrower and (ii) in the case of any Subsidiary of Borrower, the board of directors (or similar governing body) of such a holderSubsidiary; (c) (i) compensation, Affiliate benefits and indemnification arrangements for officers and other employees of Borrower and its Subsidiaries entered into in the ordinary course of business, (ii) any issuance of securities, or MCIT other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock ownership plans, including restricted stock plans, stock grants, directed share programs and other equity based plans and the granting and stockholder rights of registration rights approved by the General Partner’s board of directors, acting on behalf of Borrower; and (each such transaction iii) payments or series loans (or cancellation of related transactions loans) to officers, directors and employees that are part approved by a majority of a common planthe General Partner’s board of directors, an "Affiliate Transaction")acting on behalf of Borrower, except subject to the extent that such Affiliate Transactions involve aggregate payments or other transfers limitations set forth in an aggregate amount not to exceed $2,500,000 for all such Section 6.6; (d) transactions from and after described in Schedule 6.11 (as in effect on the date hereof. Without in any way limiting the foregoing, Effective Date without the prior written consent of the Required Lenders, the Borrower shall not agree giving effect to any modification of, nor shall it permit, amendment thereto); (e)
(i) any modification to be made purchase by Holdings of Equity Interests of Borrower or any contribution by Holdings to the Affiliate Notesequity capital of Borrower and (ii) any acquisition of Equity Interests of Holdings and any contribution by any equity holder of Holdings to the equity capital of Holdings; (f) Restricted Junior Payments permitted by Section 6.4, nor shall it forgive any amounts payable thereunderInvestments permitted by Section 6.6, delay and Indebtedness (other than Indebtedness owned by the date for payment Sponsor and its Affiliates) permitted by Section 6.1; and (g) the entering into of any amounts payable thereunder, reduce the interest payable thereunder tax sharing agreement or accept any non-cash consideration in payment of amounts payable thereundersimilar arrangement consistent with Section 6.4(b).
Appears in 1 contract
Samples: Loan Agreement (Atlantic Power Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsBorrower shall not, including performance by the applicable parties of the Obligations thereundernor shall permit any Credit Party Entity to, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management fees, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of more than five percent (5%) of any class of its equity securities Securities of the Borrower or HoldingsBorrower, or with any other Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, :
(a) on terms that are less favorable to the Borrower or any of its Restricted SubsidiariesCredit Party Entity, as applicable, than those that might be obtained in an arm's ’s length transaction at the time from Persons who are not such a holderholder or Affiliate;
(b) if such Affiliate transaction involves an amount in excess of $11,000,000, unless the terms of which are set forth in writing and a majority of the members of Borrower or such Credit Party Entity’s board of directors disinterested with respect to such Affiliate transaction have determined in good faith that the criteria set forth in clause (a) are satisfied and have approved the relevant Affiliate transaction as evidenced by a resolution of such board of directors; provided, that for purposes of this paragraph only, in the event of any Affiliate transaction involving the Parent, those members of the board of directors of applicable Credit Party Entity who are not Permitted Holders and are members of the board of directors of the Parent shall be deemed disinterested; or
(c) if such Affiliate transaction involves an amount in excess of (i) $11,000,000 in the case of any Affiliate transaction between the Parent, on the one hand, and any Credit Party Entity, on the other hand, or MCIT (each such transaction ii) $22,000,000 in the case of any other Affiliate transaction, unless the board of directors of Borrower or series of related transactions that are part of the applicable Credit Party Entity shall also have received a common plan, written opinion from an "Affiliate Transaction"), except Independent Qualified Party to the extent effect that such Affiliate Transactions involve aggregate payments transaction is fair, from a financial standpoint, to NMHG Holding and its Subsidiaries and Borrower or other transfers the applicable Credit Party Entity or not less favorable to NMHG Holding and its Subsidiaries and Borrower or the applicable Credit Party Entity than could reasonably be Credit Agreement expected to be obtained at the time in an aggregate amount arm’s-length transaction with a Person who was not to exceed $2,500,000 an Affiliate. Nothing contained in this Section 9.08 shall prohibit (w) any transaction expressly permitted by Sections 9.01, 9.02, 9.04, 9.05 and 9.06; (x) increases in compensation and benefits for all officers and employees of any Credit Party Entity which are customary in the industry or consistent with the past business practice of such transactions from Credit Party Entity, provided that no Event of Default or Default has occurred and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for is continuing; (y) payment of customary directors’ fees and indemnities; or (z) performance of any amounts payable thereunder, reduce obligations arising under the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (NMHG Holding Co)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariessuch Credit Party, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who is not an Affiliate; provided, the foregoing restriction shall not apply to (a) any transaction (x) between or among Borrower and/or any Subsidiary Guarantors and (y) among Subsidiaries of Borrower that are not Subsidiary Guarantors; (b) any indemnity provided to and any reasonable and customary fees paid to members of (i) in the case of Borrower, the board of directors (or similar governing body) of Cheniere Energy Partners GP, LLC, acting on behalf of Borrower and (ii) in the case of any Subsidiary Guarantor, the board of directors (or similar governing body) of such a holderSubsidiary Guarantor; (c) (i) compensation, Affiliate benefits and indemnification arrangements for officers and other employees of Borrower and its Subsidiaries entered into in the ordinary course of business, (ii) any issuance of securities, or MCIT other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock ownership plans, including restricted stock plans, stock grants, directed share programs and other equity based plans and the granting and stockholder rights of registration rights approved by Cheniere Energy Partners GP, LLC’s board of directors, acting on behalf of Borrower; and (each such transaction iii) payments or series loans (or cancellation of related transactions loans) to officers, directors, managers and employees that are part approved by a majority of a common planCheniere Energy Partners GP, an "Affiliate Transaction")LLC’s board of directors, except acting on behalf of Borrower, subject to the extent that such Affiliate Transactions involve aggregate payments or other transfers limitations set forth in an aggregate amount not to exceed $2,500,000 for all such Section 6.5 (Investments); (d) transactions from and after described in Schedule 6.10 (as in effect on the date hereof. Without in any way limiting the foregoing, Closing Date without the prior written consent of the Required Lenders, the Borrower shall not agree giving effect to any modification ofamendment thereto); (e) any contribution by Cheniere Energy Partners GP, nor shall it permit, any modification to be made LLC or its Affiliate to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay equity capital of Borrower; and (f) Subordinated Indebtedness permitted by Section 6.1(m) (Indebtedness); and (g) the date for payment entering into of any amounts payable thereunder, reduce the interest payable thereunder tax sharing agreement or accept any non-cash consideration in payment of amounts payable thereundersimilar arrangement.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Cheniere Energy Partners, L.P.)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any material transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate the foregoing restriction shall not apply to (a) any transaction between the Borrower and any Guarantor; (b) customary fees paid to members of the board of directors (or MCIT similar governing body) of the Borrower and its Subsidiaries; (c) compensation arrangements for officers and other employees of the Borrower and its Subsidiaries entered into in the ordinary course of business; (d) transactions described in Schedule 6.11; (e) the payment of transaction expenses in connection with this Agreement; and (f) entering into, making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of any Person and each Person who is or becomes a director, officer, agent or employee of the Borrower or any of its Subsidiaries, in respect of liabilities (i) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by the Borrower, (ii) incurred to third parties for any action or failure to act of the Borrower or any of its Subsidiaries, predecessors or successors, (iii) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of the Borrower or any of its Subsidiaries, or is or was serving at the request of any such transaction corporation as a director, officer, employee or series agent of related transactions that are part of a common plananother corporation, an "Affiliate Transaction")partnership, except joint venture, trust or enterprise or (iv) to the fullest extent that such Affiliate Transactions involve aggregate payments permitted by Delaware or other transfers in an aggregate amount not to exceed $2,500,000 for all applicable state law, arising out of any breach or alleged breach by such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent indemnitee of his or her fiduciary duty as a director or officer of the Required Lenders, the Borrower shall not agree to or any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderits Subsidiaries.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsEach of Holdings and Company shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiarysuch Person, on terms that are less favorable to the Borrower such Person or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderan Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Company and any of its wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries; (ii) reasonable and customary fees paid to members of the Boards of Directors of Holdings and its Subsidiaries; (iii) issuances of stock, Affiliate payments of bonuses and other transactions pursuant to employment or MCIT compensation agreements, stock option agreements, indemnification agreements and other arrangements, in each case satisfactory in form and substance to Agent and as in effect as of the Closing Date and unamended, and substantially similar agreements as may hereafter become effective, in each case with officers or directors who are Affiliates of Holdings or any of its Subsidiaries; (each such transaction or series iv) payment of related consulting and other fees and expenses and the reimbursement of losses, costs and expenses under the Consulting Agreement, as amended in accordance with subsection 7.15A, and in form and substance satisfactory to Agent; (v) transactions between Company and/or any of its Subsidiaries and Golden Alliance that are part of a common plan, an "Affiliate Transaction"), except otherwise permitted under this Agreement; (vi) to the extent that permitted under subsection 7.3(xiv), any repurchase of stock of Holdings from Company's employee stock ownership plan or participants or former participants in such Affiliate Transactions involve aggregate plan, in each case to the extent such repurchases are required by the terms of such plan; (vii) payments or other transfers by Holdings and its Subsidiaries pursuant to tax sharing agreements in an aggregate amount not effect from time to exceed $2,500,000 for all such transactions from time among Holdings and after its Subsidiaries; (viii) the date hereof. Without in any way limiting the foregoing, without the prior written consent issuance by Holdings of common stock to Yucaipa pursuant to Yucaipa's exercise of the Required Lenderswarrant issued to it on the Closing Date by Holdings in connection with the acquisition of Company; (ix) transactions between Company and Holdings entered into pursuant to and in accordance with the Transfer and Assumption Agreement, and (x) a loan made by Company to RGC Investment Co., on the Borrower shall not agree to any modification ofClosing Date in the original principal amount of $5,000,000, nor shall it permitall of the proceeds of which loan will immediately be invested by RGC Investment Co. in RGC Partners, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunder.L.P.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements(a) No Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder (other than any Excluded Holder) of five percent (5%) or holder more of any class of Capital Stock of Holdings or holders of any of its equity securities of the Borrower or Holdings, Subsidiaries or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that are less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, the foregoing restriction shall not apply to (i) any transaction between Holdings and any Subsidiary of Holdings that is otherwise permitted under this Agreement; (ii) reasonable and customary fees paid to members of the board of directors (or similar governing body) of Holdings; (iii) compensation arrangements for officers and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business; (iv) customary indemnification agreements with officers and directors; and (v) any transaction with any Silver Point Party solely in its capacity as an Agent hereunder or as agent under the First Lien Credit Documents or the Second Lien Credit Documents. Holdings shall use commercially reasonable efforts to promptly disclose in writing (and in any event shall disclose on a quarterly basis no later than the time the materials referred to in Section 5.1(b) are required to be delivered to Note Agent) each transaction with any holder (other than any Excluded Holder) of five percent (5%) or more of any class of Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or MCIT of any such holder (in each such transaction case, other than a Subsidiary of Holdings) to Note Agent.
(b) No Credit Party shall enter into, or series permit any of related transactions its Subsidiaries to enter into, any Intercompany Arrangements, on terms and conditions, taken as a whole, other than those that are part fair and reasonable and no less favorable to such Credit Party or such Subsidiary than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a common planCo-Issuer or such Subsidiary, an "Affiliate Transaction"), except and which are disclosed in writing to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderNote Agent.
Appears in 1 contract
Samples: Third Lien Note Purchase Agreement (Vonage Holdings Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsCompany shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryCompany, on terms that are less favorable to the Borrower Company or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such an Affiliate; provided that the foregoing restriction shall not apply to:
(i) any transaction between Holdings and any of its Subsidiaries not prohibited by this Agreement;
(ii) reimbursement of reasonable out-of-pocket costs and expenses of members of the Governing Bodies of Holdings and its Subsidiaries (or after a holderQualifying IPO of Company, Affiliate or MCIT (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"Company), except and reasonable and customary fees paid to such members who are not employed by Company, any other Loan Party, any Equity Holder, any Affiliate of any Equity Holder or any Permitted Successor of any Equity Holder (or an immediate family member of an employer of any of the foregoing);
(iii) [Reserved];
(iv) [Reserved];
(v) equity issuances to Affiliates otherwise permitted under this Agreement;
(vi) employment and severance arrangements between Company and any of its Subsidiaries and their officers and employees in the ordinary course of business;
(vii) payments by Company and its Subsidiaries pursuant to tax sharing agreements, if any, solely among Holdings and its Domestic Subsidiaries on customary terms;
(viii) transactions pursuant to permitted agreements in existence on the Restatement Date and set forth on Schedule 7.9 or any amendment thereto to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount amendment is not adverse to exceed $2,500,000 for all such transactions from and after the date hereof. Without Lenders in any way limiting the foregoing, without the prior written consent material respect;
(ix) Restricted Junior Payments permitted under subsection 7.5; and
(x) indemnification payments to officers or directors of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderHoldings and its Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Panolam Industries International Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate or MCIT the foregoing restriction shall not apply to (each such a) (i) any transaction or series between Borrower and any Guarantor and (ii) any transaction between Subsidiaries of related transactions Borrower that are part not Guarantors; (b) reasonable and customary fees paid to members of a common planthe board of directors (or similar governing body) of Borrower and its Subsidiaries; (c) compensation arrangements for officers and other employees of Borrower and its Subsidiaries entered into in the ordinary course of business and consistent with past practice; (d) required payments of interest, an "Affiliate Transaction")fees, except principal and other amounts under the Second Lien Loan Documents and the Third Lien Note Documents to the extent that such Affiliate Transactions involve aggregate payments otherwise permitted hereunder; (e) transactions between a Credit Party and the ESOP in the ordinary course of business to the extent required by the ESOP Plan Documents; (f) transactions described in Schedule 6.11; (g) in the ordinary course of business and consistent with past practice, any issuance of Securities or other transfers payments, awards or grants in an aggregate amount not to exceed $2,500,000 for all such transactions from and after cash, securities of Borrower, or otherwise pursuant to, or the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification funding of, nor shall it permitemployment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of Borrower; (h) compensation, including incentive compensation, fees and indemnities to directors, officers, consultants and employees of Borrower and its Subsidiaries in the ordinary course of business and consistent with past practice; and (i) any modification to be made transaction among Borrower and any holder of Borrower’s securities with respect to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment exercise or waiver of any amounts payable thereunder, reduce such holder’s rights under the interest payable thereunder or accept any non-cash consideration in payment terms and conditions of amounts payable thereundersuch securities.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Alion Science & Technology Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Borrower Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, Sponsor on terms that are less favorable to the Borrower or any of its Restricted Subsidiariessuch Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who is not an Affiliate; provided, the foregoing restriction shall not apply to (a) any transaction (x) between or among Borrower and/or any Guarantors (other than Sponsor) and (y) among Subsidiaries of Borrower that are not Guarantors; (b) any indemnity provided to and any reasonable and customary fees paid to members of (i) in the case of Borrower, the board of directors (or similar governing body) of the General Partner, acting on behalf of Borrower and (ii) in the case of any Subsidiary of Borrower, the board of directors (or similar governing body) of such a holderSubsidiary; (c) (i) compensation, Affiliate benefits and indemnification arrangements for officers and other employees of Borrower and its Subsidiaries entered into in the ordinary course of business, (ii) any issuance of securities, or MCIT other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock ownership plans, including restricted stock plans, stock grants, directed share programs and other equity based plans and the granting and stockholder rights of registration rights approved by the General Partner’s board of directors, acting on behalf of Borrower; and (each such transaction iii) payments or series loans (or cancellation of related transactions loans) to officers, directors and employees that are part approved by a majority of a common planthe General Partner’s board of directors, an "Affiliate Transaction")acting on behalf of Borrower, except subject to the extent that such Affiliate Transactions involve aggregate payments or other transfers limitations set forth in an aggregate amount not to exceed $2,500,000 for all such Section 6.6; (d) transactions from and after described in Schedule 6.11 (as in effect on the date hereof. Without in any way limiting the foregoing, Effective Date without the prior written consent of the Required Lenders, the Borrower shall not agree giving effect to any modification of, nor shall it permit, amendment thereto); (e) any modification to be made purchase by Sponsor of Equity Interests of Borrower or any contribution by Sponsor to the Affiliate Notesequity capital of Borrower; and (f) Restricted Junior Payments permitted by Section 6.4, nor shall it forgive any amounts payable thereunderInvestments permitted by Section 6.6, delay and Indebtedness (other than Indebtedness owned by Sponsor and its Affiliates) permitted by Section 6.1; and (g) the date for payment entering into of any amounts payable thereunder, reduce the interest payable thereunder tax sharing agreement or accept any non-cash consideration in payment of amounts payable thereundersimilar arrangement consistent with Section 6.4(b).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Atlantic Power Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsCompany shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryCompany, on terms that are less favorable to the Borrower Company or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderan Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Company and any of its wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries; (ii) reasonable and customary fees paid to members of the Boards of Directors of Company and its Subsidiaries; (iii) issuances of stock, Affiliate payments of bonuses and other transactions pursuant to employment or MCIT compensation agreements, stock option agreements, indemnification agreements, severance agreements and other arrangements, in each case as in effect as of the Closing Date and unamended, and substantially similar agreements as may hereafter become effective, in each case with officers or directors who are Affiliates of Company or any of its Subsidiaries; (iv) payment of consulting and other fees and expenses and the reimbursement of losses, costs and expenses under the Management Agreement, as amended in accordance with subsection 7.15A, and in form and substance satisfactory to Agent; (v) the payment of fees and expenses to Yucaipa or its affiliates and designees and other holders of capital stock of Smitty's in connection with the Acquisition, in each such transaction or series of related transactions case in amounts that are part satisfactory to Agent; (vi) payments by Company and its Subsidiaries pursuant to tax sharing agreements in effect from time to time among Company and its Subsidiaries; or (vii) the issuance by Company of a common plan, an "Affiliate Transaction"), except stock to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not Yucaipa pursuant to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent Yucaipa's exercise of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderYucaipa Warrant.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholderofficer, Managementdirector, MCIT employee or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiaries; provided, as applicable, the foregoing restriction shall not apply to (a) any such transaction that is for fair market value and on fair and reasonable terms no less favorable to such Credit Party or such Subsidiary than those that might be obtained it would obtain in an a comparable arm's ’s length transaction at with a Person that is not an Affiliate, (b) any transaction between or among the time from Persons who are not such a holder, Affiliate or MCIT (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except Borrower and its Subsidiaries and Non-Consolidated Entities to the extent that such Affiliate Transactions involve aggregate payments permitted under the Credit Documents; (c) reasonable and customary fees and expenses, indemnification, incentive plans and similar items paid to members of the board of directors (or similar governing body) of the Borrower and its Subsidiaries; (d) employment and compensation arrangements for (i) officers and other transfers employees of the Borrower and its Subsidiaries entered into in an aggregate amount not the ordinary course of business (including base salary and incentives) and (ii) executives, employees, service providers and staff of NorthStar Asset Management Group Inc. and its Subsidiaries (collectively, “NSAM”) relating to exceed $2,500,000 for all such transactions from services provided to or in respect of Borrower and after its Subsidiaries, to the date hereof. Without extent set forth in any way limiting asset management agreement between Borrower and/or its Subsidiaries and any employment, consulting or similar service agreement(s) between NSAM and any natural person; (e) transactions in existence on the foregoing, without Closing Date and set forth on Schedule 6.9; (f) [Intentionally Omitted]; (g) transactions in the prior written consent ordinary course of business in accordance with the Consolidated Cash Management System of the Required LendersBorrower and its Subsidiaries; (h) reimbursement of travel, moving and similar expenses in the Borrower shall not agree ordinary course of business; (i) loans and advances to any modification ofdirectors, nor shall it permit, any modification officers and employees in the ordinary course of business or otherwise permitted hereunder; (j) Restricted Junior Payments permitted under Section 6.4; and (k) Asset Sales of Equity Interests in order to be made to qualify members of the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment board of directors (or similar governing body) of any amounts payable thereunder, reduce the interest payable thereunder Credit Party or accept any non-cash consideration in payment of amounts payable thereundertheir Subsidiaries if required by applicable law or contract.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Northstar Realty Finance Corp.)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsA. Borrower shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 5% or holder or holders more of any class of its equity securities Securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiaryor of any such holder, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holder, Affiliate holder or MCIT Affiliate; PROVIDED that the foregoing restriction shall not apply to (each such i) any transaction or series between Borrower and any of related transactions its wholly-owned domestic Subsidiaries that are part Subsidiary Guarantors or between any of its wholly-owned domestic Subsidiaries that are Subsidiary Guarantors, (ii) reasonable and customary fees paid to members of the Governing Bodies of Borrower and its Subsidiaries, (iii) so long as no Potential Event of Default or Event of Default shall have occurred and be continuing or would arise as a common planresult thereof, an "Affiliate Transaction"), except a monitoring fee paid by Borrower to the extent that such Affiliate Transactions involve aggregate payments or other transfers Affiliates of Veritas in an aggregate amount not to exceed $2,500,000 for all 300,000 per year, (iv) payments made to Parent pursuant to Sections 2.5. 5.14(b) and 9.3 of the Combination Agreement and as otherwise provided in subsection 7.10B, or (v) payments made to Parent and certain Affiliates of Parent pursuant to the Ancillary Agreements (as such transactions from term is defined in the Combination Agreement).
B. If any payments on account of Excluded A/R are received by Borrower, Borrower shall be permitted to make a payment to Parent in an amount up to the amount so received, in satisfaction of Borrower's obligations under Section 5.14 of the Combination Agreement. All amounts received by Borrower on account of Excluded A/R shall not be applied against any of the Obligations and after Borrower shall be permitted to make such payments to Parent notwithstanding the date hereof. Without occurrence of an Event of Default or Potential Default and notwithstanding any covenant or agreement in any way limiting the foregoing, without the prior written consent of the Required LendersLoan Documents that might otherwise prevent, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder condition or accept any non-cash consideration in payment of amounts payable thereunderlimit such payments.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan StockholderAffiliate of Holdings on terms, Management, MCIT or holder or holders considered together with the terms of any all related and substantially concurrent transactions between such Credit Party and such Affiliate of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower such Credit Party or any of its Restricted SubsidiariesSubsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderan Affiliate of Holdings in an arms’ length transaction; provided, Affiliate the foregoing restriction shall not apply to (a) any transaction between or MCIT among the Borrower and the Guarantors; (each such transaction b) reasonable and customary fees paid to members of the board of directors (or series similar governing body) of related Holdings and its Subsidiaries; (c) compensation arrangements for officers and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business; (d) transactions that are part as of a common plan, an "Affiliate Transaction"), except the Closing Date described in Schedule 6.11 or any amendment thereto to the extent that such Affiliate Transactions involve aggregate payments amendment is not adverse to the Lenders in any material respect, (e) Permitted Project Undertakings and Permitted Equity Commitments, (f) any Project Obligation of a Non-Recourse Subsidiary acquired as a result of the Acquisition (but not entered into in contemplation thereof) and (g) any acquisition of assets or other transfers Equity Interests from SunEdison or a Subsidiary of SunEdison pursuant to the Project Support Agreement or the Intercompany Agreement as such agreement is in an aggregate amount not to exceed $2,500,000 for all existence as of the Closing Date or as such transactions from and agreement may be amended after the date hereof. Without Closing Date if such amendment, taken as a whole with all other such amendments, is not more disadvantageous to the Lenders in any way limiting the foregoing, without the prior written consent material respect than such agreement as it is in existence as of the Required LendersClosing Date, and so long as the Corporate Governance and Conflicts Committee of Parent (or, if at any time Parent is not the sole managing member of Holdings, the Borrower Board of Directors of Holdings) has approved such acquisition, and any construction, operational or similar agreements or arrangements or Project Obligations entered into in connection with such acquisition. Nothing in the foregoing shall not agree be construed to any modification of, nor shall it permit, any modification to be made to prohibit the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment issuance of any amounts payable thereunderPermitted Convertible Bond Indebtedness (or any guarantee thereof), reduce the interest payable thereunder issuance of any Permitted Exchangeable Bond Indebtedness, or accept the entry into any non-cash consideration in payment of amounts payable thereunderPermitted Call Transaction.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (TerraForm Power, Inc.)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsCompany shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryCompany, on terms that are less favorable to the Borrower Company or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holder, Affiliate an Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Company and any of its wholly-owned Subsidiaries or MCIT between any of its wholly-owned Subsidiaries; (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except ii) reasonable and customary fees paid to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent members of the Required LendersBoards of Directors of Company and its Subsidiaries; (iii) issuances of stock, payments of bonuses and other transactions pursuant to employment or compensation agreements, stock option agreements, indemnification agreements, severance agreements and other arrangements, in each case as in effect as of the Borrower shall not agree to Closing Date and unamended, and substantially similar agreements as may hereafter become effective, in each case with officers or directors who are Affiliates of Company or any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for of its Subsidiaries; (iv) payment of any amounts payable thereunderconsulting and other fees and expenses and the reimbursement of losses, reduce costs and expenses under the interest payable thereunder Management Agreement, as amended in accordance with subsection 7.15A, and in form and substance satisfactory to Administrative Agent; (v) payments by Company and its Subsidiaries pursuant to tax sharing agreements in effect from time to time among Company and its Subsidiaries; or accept any non-cash consideration in payment (vi) the issuance by Company of amounts payable thereundercommon stock to Yucaipa pursuant to Yucaipa's exercise of the Yucaipa Warrant.
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsCompany shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryCompany, on terms that are less favorable to the Borrower Company or that Restricted Subsidiary in any of its Restricted Subsidiariesmaterial respect, taken as a whole, as applicablethe case may be, than those that might be would have been obtained in an arm's length transaction at the time from Persons who are not such a holderan Affiliate; provided that the foregoing restriction shall not apply to:
(i) any transaction between Company and any of its wholly-owned Restricted Subsidiaries or between any of its wholly-owned Restricted Subsidiaries;
(ii) indemnification payments (including reimbursement of fees and expenses) to officers, Affiliate directors, employees or MCIT consultants of Company or any of its Restricted Subsidiaries;
(each such iii) any Restricted Junior Payment permitted by subsection 7.5;
(iv) Investments permitted by subsection 7.3;
(v) any transaction involving consideration of $2,000,000 or series of related transactions that are part of a common less per annum;
(vi) any employment agreement, employee benefit plan, an "Affiliate Transaction")officer or director indemnification agreement or any similar arrangement entered into by Company or any of its Restricted Subsidiaries in the ordinary course of business and payments or issuances of Equity Interests of United Online pursuant thereto;
(vii) any tax sharing agreements of Company or any of its Restricted Subsidiaries entered into with United Online and any of its Restricted Subsidiaries providing for Company and its Restricted Subsidiaries to pay the portion of United Online’s consolidated taxes directly attributed to Holdings, except Company and its Restricted Subsidiaries;
(viii) marketing, advertising and cross promotional arrangements regarding the promotion and sale of the products and services of Company or any of its Restricted Subsidiaries, on one side, and the promotion and sale of the products and services of United Online or any of its Subsidiaries, on the other side, provided (a) with respect to such marketing, advertising and cross promotional arrangements provided by Company and its Restricted Subsidiaries, the amounts paid to Company and its Restricted Subsidiaries shall be at least equal to the out-of-pockets cost incurred by Company and its Restricted Subsidiaries and shall not exceed $15,000,000 in any calendar year and (b) with respect to marketing, advertising and cross promotional arrangements provided to Company and its Restricted Subsidiaries, the amount paid by Company and its Restricted Subsidiaries shall be reasonable in the good faith judgment of Company taking into account all relevant factors including the market value of the benefit received by Company and the market value of such promotions, products or services to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount ascertainable and shall not to exceed $2,500,000 for all such transactions from and after the date hereof. Without 15,000,000 in any way limiting calendar year;
(ix) agreements between United Online and its Subsidiaries (other than the foregoingLoan Parties and their Restricted Subsidiaries) on the one hand, without and the prior written consent Loan Parties, on the other hand, with respect to good faith allocations of the Required Lendersexpenses relating to, the Borrower shall not agree to any modification ofand cost sharing arrangements relating to, nor shall it permitgeneral, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration administrative and information technology matters; and
(x) agreements and payments in payment of amounts payable thereunderconnection with Equity Related Compensation Payments.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsHoldings shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder of 5% or holder or holders more of any class of its equity securities Securities of the Borrower or Holdings, Holdings or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that are less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderholder or Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Holdings and any of its wholly owned Subsidiaries or between any of its wholly owned Subsidiaries, Affiliate (ii) any payment from Company to Holdings expressly permitted under subsection 7.5, (iii) any payment by Holdings or MCIT any of its Subsidiaries of fees owing under the Consulting Agreement in accordance with the terms thereof, (each such transaction iv) any employment agreement entered into by Holdings or series any of related transactions that are part its Subsidiaries in the ordinary course of a common planbusiness, an "Affiliate Transaction"(v) any issuance of capital stock of Holdings in connection with employment arrangements, stock options and stock ownership plans of Holdings or any of its Subsidiaries entered into in the ordinary course of business, (vi) any of the Recapitalization Transactions (as defined in the Existing Credit Agreement), except (vii) reasonable and customary fees paid to members of the Boards of Directors of Holdings and its Subsidiaries, (viii) so long as no Event of Default under subsection 8.1, 8.6 or 8.7 is then in existence or would result from the payment thereof, (x) any payment by Holdings or any of its Subsidiaries of Xxxx Management Fees under the Xxxx Advisory Services Agreement as and when due, provided if any such fees cannot be paid as provided above as a result of the existence of such an Event of Default, such fees shall continue to accrue and shall be permitted to be paid at such time as all such Events of Default have been cured or waived and no other Event of Default is then in existence and (y) any prepayment by Holdings of the Xxxx Management Fees owing to Xxxx over the term of the Xxxx Advisory Services Agreement to the extent that such Affiliate Transactions involve aggregate payments or other transfers permitted by subsection 7.5(vii)(y) and (ix) the reimbursement of Xxxx for its reasonable out-of-pocket expenses under the Xxxx Advisory Services Agreement incurred in an aggregate amount not connection with performing management services to exceed $2,500,000 for all such transactions from Holdings and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderits Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, Affiliate or MCIT the foregoing restriction shall not apply to (each such a) (i) any transaction or series between Borrower and any Guarantor and (ii) any transaction between Subsidiaries of related transactions Borrower that are part not Guarantors; (b) reasonable and customary fees paid to members of a common planthe board of directors (or similar governing body) of Borrower and its Subsidiaries; (c) compensation arrangements for officers and other employees of Borrower and its Subsidiaries entered into in the ordinary course of business and consistent with past practice; (d) required payments of interest, an "Affiliate Transaction")fees, except principal and other amounts hereunder and under the Third Lien Note Documents to the extent that such Affiliate Transactions involve aggregate payments otherwise permitted hereunder; (e) transactions between a Credit Party and the ESOP in the ordinary course of business to the extent required by the ESOP Plan Documents; (f) transactions described in Schedule 6.11; (g) in the ordinary course of business and consistent with past practice, any issuance of Securities or other transfers payments, awards or grants in an aggregate amount not to exceed $2,500,000 for all such transactions from and after cash, securities of Borrower, or otherwise pursuant to, or the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification funding of, nor shall it permitemployment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of Borrower; (h) compensation, including incentive compensation, fees and indemnities to directors, officers, consultants and employees of Borrower and its Subsidiaries in the ordinary course of business and consistent with past practice; and (i) any modification to be made transaction among Borrower and any holder of Borrower’s securities with respect to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment exercise or waiver of any amounts payable thereunder, reduce such holder’s rights under the interest payable thereunder or accept any non-cash consideration in payment terms and conditions of amounts payable thereundersuch securities.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Alion Science & Technology Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements(a) No Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder (other than any Excluded Holder) of five percent (5%) or holder more of any class of Capital Stock of Holdings or holders of any of its equity securities of the Borrower or Holdings, Subsidiaries or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that are less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, the foregoing restriction shall not apply to (i) any transaction between Holdings and any Subsidiary of Holdings that is otherwise permitted under this Agreement; (ii) reasonable and customary fees paid to members of the board of directors (or similar governing body) of Holdings; (iii) compensation arrangements for officers and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business; (iv) customary indemnification agreements with officers and directors; and (v) any transaction with any Silver Point Party solely in its capacity as an Agent hereunder or as agent under the Second Lien Credit Documents or the Third Lien Documents. Holdings shall use commercially reasonable efforts to promptly disclose in writing (and in any event shall disclose on a quarterly basis no later than the time the materials referred to in Section 5.1(b) are required to be delivered to Administrative Agent) each transaction with any holder (other than any Excluded Holder) of five percent (5%) or more of any class of Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or MCIT of any such holder (in each such transaction case, other than a Subsidiary of Holdings) to Administrative Agent.
(b) No Credit Party shall enter into, or series permit any of related transactions its Subsidiaries to enter into, any Intercompany Arrangements, on terms and conditions, taken as a whole, other than those that are part fair and reasonable and no less favorable to such Credit Party or such Subsidiary than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a common planBorrower or such Subsidiary, an "Affiliate Transaction"), except and which are disclosed in writing to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderAdministrative Agent.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Vonage Holdings Corp)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsEach Borrower shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall directly or indirectly (i) pay any management feesto, consulting fees, investment banking fees or other similar fees or compensation to do any of the Jordan Stockholders, Management, MCIT or following: (a) make any other holder or holders Investment in an Affiliate of the Parent which Affiliate is not a Borrower's ; (b) transfer, sell, lease, assign or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange otherwise dispose of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with asset to any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) Parent which is not its Restricted Subsidiarya Borrower; (c) merge into or consolidate with or purchase, on terms that are less favorable exchange, lease or otherwise acquire assets from any Affiliate of the Parent, other than a Borrower; (d) repay any Indebtedness to any Affiliate of the Parent, other than a Borrower; or (e) enter into any other transaction directly or indirectly with or for the benefit of any Affiliate of the Parent which is not a Borrower (including guaranties and assumptions of obligations of any such Affiliate) except, in the case of clause (e), for (i) salaries and other bona fide employee compensation to officers of the Parent or any of its Restricted Subsidiaries, as applicable(ii) stock options and stock issuance agreements involving only issuance of Stock of the Parent, than those that might be obtained (iii) reasonable and customary fees paid to and indemnification of members of the Boards of Directors of the Borrowers, (iv) amounts paid by the Parent or SC to Brentwood Private Equity LLP in an arm's length transaction at accordance with the time from Persons who are not such a holder, Affiliate or MCIT (each such transaction or series of related transactions that are part of a common plan, an "Affiliate Transaction"), except Administrative Services Agreement to the extent permitted under Section 7.4, (v) amounts paid to DLJ or its Affiliates under that such Affiliate Transactions involve aggregate payments certain engagement letter, dated May 10, 1999, between DLJ and the Parent; (vi) amounts paid to Bank of America (for the account of Brentwood) under the BofA L/C Facility in reimbursement of amounts actually paid by Brentwood to Bank of America under Brentwood's 100% participation interest in the BofA L/C Facility upon the occurrence of an "Event of Default" thereunder; (vii) loans or other transfers in an aggregate amount advances permitted under clause (iii) or (v) of Section 7.7; and (viii) any Restricted Junior Payment permitted pursuant to clause (a) of the proviso to Section 7.4. Each Borrower shall not to exceed $2,500,000 for all such transactions from and after amend, 111 121 modify or waive any provision of the date hereof. Without in any way limiting the foregoing, Administrative Services Agreement without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderAgent.
Appears in 1 contract
Samples: Credit Agreement (Silver Cinemas International Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsNo Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiary, on terms that are less favorable to the Borrower or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate as determined in good faith by the disinterested members of the Board of Directors of the Borrower; provided, Affiliate the foregoing restriction shall not apply to (a) any transaction between Borrower and any Guarantor Subsidiary (other than Real Estate Guarantors); (b) reasonable and customary fees paid to members of the board of directors (or MCIT similar governing body) of Borrower and its Subsidiaries; (each such transaction or series c) compensation arrangements for officers and other employees of related transactions that are part Borrower and its Subsidiaries entered into in the ordinary course of a common plan, an "Affiliate Transaction"), except business; (d) the provision of officers’ and directors’ indemnification and insurance in the ordinary course of business to the extent that such Affiliate Transactions involve aggregate payments permitted by applicable law; (e) transactions described in Schedule 6.11; (f) Indebtedness may be incurred to the extent permitted by Section 6.1(n)(i) or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to Section 6.1(n)(ii); (g) Investments may be made to the Affiliate Notesextent permitted by Section 6.6(i); (h) sublease agreements between Real Estate Guarantors and any of the Credit Parties that operate a retail store, nor shall it forgive warehouse, distribution center or other business on any amounts payable thereunderLeasehold Property; (i) to the extent permitted by the other terms of this Agreement, delay any Investment by Sopris in the date for payment Equity Interests of the Borrower, including any amounts payable thereunderSpecified Equity Contribution, reduce and (j) Indebtedness owed to Sopris pursuant to this Agreement, the interest payable thereunder or accept First Lien Term Credit Agreement, the Second Lien Credit Agreement, any non-cash consideration Term Loan Refinancing Indebtedness (as defined in payment of amounts payable thereunderthe First Lien Term Credit Agreement) and/or any Seasonal Overadvance Facility.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Movie Gallery Inc)
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreementsEach of Holdings and Company shall not, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder and shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor not permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT or holder or holders of any of its equity securities of the Borrower or Holdings, or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted Subsidiarysuch Person, on terms that are less favorable to the Borrower such Person or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons who are not such a holderan Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between Company and any of its wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries, Affiliate or MCIT (each such transaction or series ii) transactions relating to the termination of related transactions that are part the Consulting Agreement and the payment of a common plantermination fee thereunder as described in subsection 4.1H, an "Affiliate Transaction")(iii) reasonable and customary fees paid to members of the Boards of Directors of Holdings and its Subsidiaries, except (iv) issuances of stock, payments of bonuses and other transactions pursuant to employment or compensation agreements, stock option agreements, indemnification agreements and other arrangements, in each case satisfactory in form and in substance to Agent and Arrangers and as in effect as of the Closing Date and unamended, and substantially similar agreements as may hereafter become effective, in each case with officers or directors who are Affiliates of Holdings or any of its Subsidiaries, (v) payment of consulting and other fees and expenses under the Management Agreement, as amended to the extent that such Affiliate Transactions involve aggregate payments permitted pursuant to subsection 7.15, and in form and substance satisfactory to Agent and Arrangers, (vi) to the extent permitted under subsection 7.3(xii), any repurchase of stock of Holdings from Company's stock option or other transfers stock plan or participants in an aggregate amount not such plan, in each case to exceed $2,500,000 for all the extent such transactions from repurchases are required by the terms of such plan, (vii) payments by Holdings and after its Subsidiaries pursuant to the date hereof. Without Tax Sharing Agreement, and (viii) the issuance by Holdings of Holdings Common Stock to Yucaipa pursuant to Yucaipa's warrant issued to it on the Acquisition Date by Holdings (as in any way limiting effect on the foregoing, without the prior written consent of the Required LendersAcquisition Date, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunder"YUCAIPA WARRANTS").
Appears in 1 contract
Transactions with Shareholders and Affiliates. Except for the transactions contemplated by the agreements(a) No Credit Party shall, including performance by the applicable parties of the Obligations thereunder, set forth on Schedule 6.3(H) as such agreements are in effect as of the date hereof or any amendment permitted by the terms of this Agreement(provided any payments thereunder nor shall be governed by the terms of Section 6.3(F)) and except as otherwise permitted herein, neither the Borrower nor it permit any of its Restricted Subsidiaries shall to, directly or indirectly (i) pay any management feesindirectly, consulting fees, investment banking fees or other similar fees or compensation to any of the Jordan Stockholders, Management, MCIT or any other holder or holders of the Borrower's or Holdings' Equity Securities, other than wages, salaries and bonuses of employees who are also stockholders of the Borrower in the ordinary course and consistent with past practices or (ii) enter into or permit to exist any transaction (including, without limitation, including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Jordan Stockholder, Management, MCIT holder (other than any Excluded Holder) of five percent (5%) or holder more of any class of Capital Stock of Holdings or holders of any of its equity securities of the Borrower or Holdings, Subsidiaries or with any Affiliate of the Borrower (other than Holdings, the Borrower and its Subsidiaries) which is not its Restricted SubsidiaryHoldings or of any such holder, on terms that are less favorable to the Borrower Holdings or any of its Restricted Subsidiariesthat Subsidiary, as applicablethe case may be, than those that might be obtained in an arm's length transaction at the time from Persons a Person who are is not such a holderholder or Affiliate; provided, the foregoing restriction shall not apply to (i) any transaction between Holdings and any Subsidiary of Holdings that is otherwise permitted under this Agreement; (ii) reasonable and customary fees paid to members of the board of directors (or similar governing body) of Holdings; (iii) compensation arrangements for officers and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business; (iv) customary indemnification agreements with officer and directors; and (v) any transaction with any Silver Point Party solely in its capacity as an Agent hereunder or as agent under the First Lien Credit Documents or the Third Lien Documents. Holdings shall use commercially reasonable efforts to promptly disclose in writing (and in any event shall disclose on a quarterly basis no later than the time the materials referred to in Section 5.1(b) are required to be delivered to Administrative Agent) each transaction with any holder (other than any Excluded Holder) of five percent (5%) or more of any class of Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or MCIT of any such holder (in each such transaction case, other than a Subsidiary of Holdings) to Administrative Agent.
(b) No Credit Party shall enter into, or series permit any of related transactions its Subsidiaries to enter into, any Intercompany Arrangements, on terms and conditions, taken as a whole, other than those that are part fair and reasonable and no less favorable to such Credit Party or such Subsidiary than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a common planBorrower or such Subsidiary, an "Affiliate Transaction"), except and which are disclosed in writing to the extent that such Affiliate Transactions involve aggregate payments or other transfers in an aggregate amount not to exceed $2,500,000 for all such transactions from and after the date hereof. Without in any way limiting the foregoing, without the prior written consent of the Required Lenders, the Borrower shall not agree to any modification of, nor shall it permit, any modification to be made to the Affiliate Notes, nor shall it forgive any amounts payable thereunder, delay the date for payment of any amounts payable thereunder, reduce the interest payable thereunder or accept any non-cash consideration in payment of amounts payable thereunderAdministrative Agent.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Vonage Holdings Corp)
