Limitation on Transactions with Shareholders and Affiliates. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction or arrangement (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with (x) any holder (or any Affiliate of such holder) of 10% or more of any class of Capital Stock of the Parent Guarantor or (y) with any Affiliate of the Parent Guarantor (each an “Affiliate Transaction”), unless: (i) the Affiliate Transaction is on terms that are no less favorable to the Parent Guarantor or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not such a holder or an Affiliate of the Parent Guarantor; and (ii) the Parent Guarantor delivers to the Trustee: (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$5.0 million (or the Dollar Equivalent thereof), a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$15.0 million (or the Dollar Equivalent thereof), in addition to the Board Resolution required in clause (a)(ii)(A) of this Section 4.12, an opinion issued by an accounting, appraisal or investment banking firm of recognized international standing as to the fairness to the Parent Guarantor or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view. (b) The foregoing limitation does not limit, and shall not apply to: (i) any employment or compensation agreement (whether based in cash or securities), officer or director indemnification agreement, severance or termination agreement or any similar arrangement entered into by the Parent Guarantor or any Restricted Subsidiary with their respective officers, directors or employees and payments pursuant thereto, including the payment of reasonable fees and reimbursement of expenses, in each case in the ordinary course of business; (ii) transactions between or among the Parent Guarantor and any Wholly Owned Restricted Subsidiary (other than any member of the ER Group) or between or among Wholly Owned Restricted Subsidiaries (other than any member of the ER Group); (iii) transactions between and among any member of the ER Group; (iv) transactions between, on the one hand, the Parent Guarantor or any Parent Entity and, on the other hand, any member of the ER Group relating to any Indebtedness or Investment permitted to be Incurred or made under the Indenture; (v) any Restricted Payment (other than a Permitted Investment) not prohibited by Section 4.04; (vi) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Guarantor; (vii) the payment of compensation to officers and directors of the Parent Guarantor or any Restricted Subsidiary pursuant to an employee stock or share option scheme, so long as such scheme is in compliance with the listing rules of The Stock Exchange of Hong Kong Limited; (viii) transactions with a Person (other than any member of the ER Group or an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor, directly or indirectly, owns Capital Stock in, or controls, such Person or solely because the Parent Guarantor or one of its Subsidiaries has the right to designate one or more members of the Board of Directors or similar governing body of such Person; (ix) loans or advances to officers, directors or employees in the ordinary course of business in an aggregate principal amount not to exceed US$5.0 million (or the Dollar Equivalent thereof) at any one time outstanding; (x) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Parent Guarantor or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition or merger; and (xi) transactions with a Person that is an Affiliate of the Parent Guarantor solely as a result of or in connection with the Expansion Transaction. (c) In addition, the requirements of Section 4.12(a)(ii) shall not apply to (i) Investments (other than Permitted Investments) not prohibited by Section 4.04, (ii) transactions pursuant to agreements in effect on the Exchange Date, or any amendment or modification or replacement thereof, so long as such amendment, modification or replacement is not materially more disadvantageous to the Parent Guarantor and its Restricted Subsidiaries than the original agreement in effect on the Exchange Date, (iii) transactions with customers, clients, suppliers, contractors, other service providers or purchasers and sellers of goods and services or lessors or lessees, and (iv) any transaction between or among the Parent Guarantor and any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary (other than any member of the ER Group); provided that (A) in the case of clause (iii), such transaction is entered into in the ordinary course of business and (B) in the case of clause (iv) none of the minority shareholders or minority partners of or in such Restricted Subsidiary is a Person described in clauses (x) or (y) of Section 4.12(a) (other than by reason of such minority shareholder or minority partner being an officer or director of such Restricted Subsidiary).
Appears in 3 contracts
Samples: Indenture (Energy Resources Rail LLC), Indenture (Enrestechnology LLC), Indenture (Enrestechnology LLC)
Limitation on Transactions with Shareholders and Affiliates. (a) The Parent Guarantor will TWTC and the Borrower shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction or arrangement (including, without limitation, including the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with (x) any holder (a Related Person or any Affiliate of such holder) of 10% or more of any class of Capital Stock of the Parent Guarantor or (y) with any Affiliate of TWTC’s or the Parent Guarantor (each an “Affiliate Transaction”)Borrower’s Affiliates, unless:
(ia) the Affiliate Transaction is on terms that of such transaction are fair and reasonable and no less favorable to TWTC, the Parent Guarantor Borrower or the relevant such Restricted Subsidiary than those that would have been obtained 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 by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not such a holder Related Person or an Affiliate of the Parent Guarantor; andAffiliate;
(iib) the Parent Guarantor delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration if such transaction involves an amount in excess of US$5.0 million (or the Dollar Equivalent thereof)$25,000,000, a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors has determined in good faith that the criteria set forth in clause (a) are satisfied and have approved such transaction; and
(Bc) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration if such transaction involves an amount in excess of US$15.0 million ($75,000,000, TWTC, the Borrower or the Dollar Equivalent thereof), in addition a Restricted Subsidiary delivers to the Board Resolution required in clause (a)(ii)(A) Administrative Agent a written opinion of this Section 4.12, an opinion issued by an accounting, appraisal or a nationally recognized investment banking firm of recognized international standing as stating that the transaction is fair to TWTC, the fairness to the Parent Guarantor Borrower or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view.
(b) . Such nationally recognized investment banking firm may have other relationships with TWTC, the Borrower, such Restricted Subsidiary or any Affiliate thereof. The foregoing limitation does not limit, limit and shall not apply to:
(i) any transaction solely between TWTC or the Borrower and any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted Subsidiaries;
(ii) the payment of customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or compensation agreement (whether based in cash employee benefit arrangements and incentive arrangements with any officer, Director or securities)employee of TWTC, officer or director indemnification agreement, severance or termination agreement or any similar arrangement entered into by the Parent Guarantor Borrower or any Restricted Subsidiary with their respective officers, directors or employees and payments pursuant thereto, including the payment of reasonable fees and reimbursement of expenses, in each case entered into in the ordinary course of business;
(ii) transactions between or among the Parent Guarantor and any Wholly Owned Restricted Subsidiary (other than any member of the ER Group) or between or among Wholly Owned Restricted Subsidiaries (other than any member of the ER Group);
(iii) transactions any transaction (A) with respect to the lease, sharing or other use of conduit, cable, fiber lines or facilities, equipment, transmission or network capacity, right-of-way or other access rights, between and among any member of the ER Group;
(iv) transactions between, on the one handTWTC, the Parent Guarantor or any Parent Entity and, on the other hand, any member of the ER Group relating to any Indebtedness or Investment permitted to be Incurred or made under the Indenture;
(v) any Restricted Payment (other than a Permitted Investment) not prohibited by Section 4.04;
(vi) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Guarantor;
(vii) the payment of compensation to officers and directors of the Parent Guarantor Borrower or any Restricted Subsidiary pursuant to an employee stock or share option scheme, so long as such scheme is in compliance with the listing rules of The Stock Exchange of Hong Kong Limited;
(viii) transactions with a Person (and any other than any member of the ER Group or an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor, directly or indirectly, owns Capital Stock in, or controls, such Person or solely because (B) between TWTC, the Parent Guarantor or one of its Subsidiaries has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(ix) loans or advances to officers, directors or employees in the ordinary course of business in an aggregate principal amount not to exceed US$5.0 million (or the Dollar Equivalent thereof) at any one time outstanding;
(x) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Parent Guarantor Borrower or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition or merger; and
(xi) transactions with a Person that is an Affiliate of the Parent Guarantor solely as a result of or in connection with the Expansion Transaction.
(c) In addition, the requirements of Section 4.12(a)(ii) shall not apply to (i) Investments (other than Permitted Investments) not prohibited by Section 4.04, (ii) transactions pursuant to agreements in effect on the Exchange Date, or any amendment or modification or replacement thereof, so long as such amendment, modification or replacement is not materially more disadvantageous to the Parent Guarantor Subsidiary and its Restricted Subsidiaries than the original agreement in effect on the Exchange Date, (iii) transactions with customers, clients, suppliers, contractors, other service providers lessors or purchasers and or sellers of goods and services or lessors or lesseesservices, and in each case with respect to transactions under this clause (ivB) any transaction between or among the Parent Guarantor and any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary (other than any member of the ER Group); provided that (A) in the case of clause (iii), such transaction is entered into in the ordinary course of business and otherwise in compliance with the terms of this Agreement; provided, however, that such transaction is on terms that:
(A) if applicable, are consistent with the past practices of TWTC, the Borrower or such Restricted Subsidiary; and
(B) are no less favorable, taken as a whole, to TWTC, the Borrower or the relevant Restricted Subsidiary than those that could have been obtained in a comparable transaction by TWTC, the case of clause (iv) none of the minority shareholders Borrower or minority partners of or in such Restricted Subsidiary with an unrelated Person (or, in the event that there are no comparable transactions involving unrelated Persons to apply for comparative purposes, is otherwise on terms that, taken as a Person described in clauses (x) whole, TWTC or (y) of Section 4.12(a) (other than by reason of such minority shareholder the Borrower, as applicable, has determined to be fair to TWTC or minority partner being an officer the Borrower or director of such the relevant Restricted Subsidiary); or
(iv) any Restricted Payments not prohibited by Section 9.3.
Appears in 2 contracts
Samples: Credit Agreement (Tw Telecom Inc.), Amendment and Restatement Agreement (Tw Telecom Inc.)
Limitation on Transactions with Shareholders and Affiliates. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction or arrangement (including, without limitation, including the purchase, sale, lease or exchange of property or assets, or the rendering of any service) service with (x) any holder (or any Affiliate of such holder) of its shareholders holding 10% or more of any class of Capital Stock of the Parent Guarantor or (y) with any Affiliate of the Parent Guarantor or any Restricted Subsidiary (each an a “Affiliate Related Party Transaction”), unless:
(i) the Affiliate Transaction is on except upon terms that are no less favorable to the Parent Guarantor or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable arm’s-length transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not such a holder or an Affiliate of the Parent Guarantor; and.
(b) In any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of U.S.$20.0 million (or the equivalent thereof at the time of determination), the Guarantor must first deliver to the Trustee a certificate from the Guarantor’s Chief Financial Officer or Chief Executive Officer to the effect that such transaction or series of related transactions are on terms no less favorable to the Guarantor or such Restricted Subsidiary than could be obtained in a comparable arm’s length transaction and is otherwise compliant with the terms of this Indenture.
(c) The foregoing paragraphs of this Section 4.15 do not apply to
(i) any transaction between the Guarantor and any Restricted Subsidiary or between Restricted Subsidiaries and the Guarantor (in each case, including, at any time prior to the Comgás Spin-Off with Substitution Consummation Date, Radar Propriedades Agrícolas S.A. and its Subsidiaries (only to the extent the results of operations of such entity is consolidated by the Guarantor));
(ii) the Parent payment of reasonable and customary regular fees to directors of the Guarantor delivers who are not employees of the Guarantor;
(iii) any Restricted Payments of a type described in Section 4.08(a)(i) or Section 4.08(a)(ii) if permitted by that covenant;
(iv) any issuance or sale of Equity Interests (other than Disqualified Stock);
(v) transactions or payments pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the ordinary course of business;
(vi) transactions pursuant to agreements in effect on the Issue Date and described in the Offering Memorandum, as amended, modified or replaced from time to time so long as the amended, modified or new agreements, taken as a whole, are no less favorable to the Trustee:Guarantor and its Restricted Subsidiaries than those in effect on the date of this Indenture;
(vii) any Sale Leaseback Transaction otherwise permitted under Section 4.11 if such transaction is on market terms;
(viii) any advance, loan or other extension of credit (or guarantee thereof) in connection with the use of the proceeds of the Notes (including any Additional Notes) as well as additional loans outstanding from the Guarantor or any of its Restricted Subsidiaries to an Affiliate to the extent that any such advance, loan or other extension of credit (i) has a Stated Maturity that is prior to the Stated Maturity of the Notes and (ii) is on market terms;
(A) transactions with respect to any Affiliate Transaction customers, clients, distributors, suppliers or series purchasers or sellers of related Affiliate Transactions involving aggregate consideration in excess of US$5.0 million (goods or the Dollar Equivalent thereof), a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$15.0 million (or the Dollar Equivalent thereof), in addition to the Board Resolution required in clause (a)(ii)(A) of this Section 4.12, an opinion issued by an accounting, appraisal or investment banking firm of recognized international standing as to the fairness to the Parent Guarantor or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view.
(b) The foregoing limitation does not limit, and shall not apply to:
(i) any employment or compensation agreement (whether based in cash or securities), officer or director indemnification agreement, severance or termination agreement or any similar arrangement entered into by the Parent Guarantor or any Restricted Subsidiary with their respective officers, directors or employees and payments pursuant thereto, including the payment of reasonable fees and reimbursement of expensesservices, in each case in the ordinary course of business;
business and on market terms, or (ii) transactions between or among the Parent Guarantor and any Wholly Owned Restricted Subsidiary (other than any member of the ER Group) or between or among Wholly Owned Restricted Subsidiaries (other than any member of the ER Group);
(iii) transactions between and among any member of the ER Group;
(iv) transactions between, on the one hand, the Parent Guarantor or any Parent Entity and, on the other hand, any member of the ER Group relating to any Indebtedness or Investment permitted to be Incurred or made under the Indenture;
(v) any Restricted Payment (other than a Permitted Investment) not prohibited by Section 4.04;
(vi) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Guarantor;
(vii) the payment of compensation to officers and directors of the Parent Guarantor or any Restricted Subsidiary pursuant to an employee stock or share option scheme, so long as such scheme is in compliance with the listing rules of The Stock Exchange of Hong Kong Limited;
(viiiB) transactions with a Person (joint ventures or other than any member of the ER Group or an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor, directly or indirectly, owns Capital Stock in, or controls, such Person or solely because the Parent Guarantor or one of its Subsidiaries has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(ix) loans or advances to officers, directors or employees in the ordinary course of business in an aggregate principal amount not to exceed US$5.0 million (or the Dollar Equivalent thereof) at any one time outstanding;
(x) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Parent Guarantor or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition or merger; and
(xi) transactions with a Person that is an Affiliate of the Parent Guarantor solely as a result of or in connection with the Expansion Transaction.
(c) In addition, the requirements of Section 4.12(a)(ii) shall not apply to (i) Investments (other than Permitted Investments) not prohibited by Section 4.04, (ii) transactions pursuant to agreements in effect on the Exchange Date, or any amendment or modification or replacement thereof, so long as such amendment, modification or replacement is not materially more disadvantageous to the Parent Guarantor and its Restricted Subsidiaries than the original agreement in effect on the Exchange Date, (iii) transactions with customers, clients, suppliers, contractors, other service providers or purchasers and sellers of goods and services or lessors or lessees, and (iv) any transaction between or among the Parent Guarantor and any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary (other than any member of the ER Group); provided that (A) in the case of clause (iii), such transaction is arrangements entered into in the ordinary course of business business, on market terms and (B) in the case of clause (iv) none of the minority shareholders consistent with past practice or minority partners of or in such Restricted Subsidiary is a Person described in clauses industry norms;
(x) at any time prior to the Comgás Spin-Off with Substitution Consummation Date, the Joint Venture and any transactions or provision of services related thereto;
(yxi) the provision of Section 4.12(aadministrative services to any joint venture or Unrestricted Subsidiary on substantially the same terms provided to or by Restricted Subsidiaries;
(xii) the Comgás Spin-Off with Substitution;
(other than by reason of such minority shareholder or minority partner being an officer or director of such Restricted Subsidiary)xiii) the Comgás Spin-Off without Substitution;
(xiv) the Lubricant Spin-Off; and
(xv) the Radar Spin-Off.
Appears in 1 contract
Samples: Indenture (Cosan Ltd.)
Limitation on Transactions with Shareholders and Affiliates. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction or arrangement (including, without limitation, including the purchase, sale, lease or exchange of property or assets, or the rendering of any service) service with (x) any holder (of its shareholders, or any Affiliate of such holder) any shareholder, of 105% or more of any class of Capital Stock of the Parent Guarantor or (y) with any Affiliate of the Parent Guarantor or any Subsidiary (each an a “Affiliate Related Party Transaction”), unless:
(i) the Affiliate Transaction is on except upon fair and reasonable terms that are no less favorable to the Parent Guarantor or the relevant Restricted Subsidiary than those that would have been could be obtained in a comparable arm’s-length transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not such a holder or an Affiliate of the Parent Guarantor; and.
(iib) the Parent Guarantor delivers to the Trustee:
(A) with respect to In any Affiliate Related Party Transaction or series of related Affiliate Related Party Transactions involving with an aggregate consideration value in excess of US$5.0 U.S.$5.0 million (or the Dollar Equivalent thereofequivalent thereof at the time of determination), a Board Resolution set forth in the Guarantor must first deliver to the Trustee an Officers’ Certificate certifying to the effect that such Affiliate Transaction complies transaction or series of related transactions are on fair and reasonable terms no less favorable to the Guarantor or such Subsidiary than could be obtained in a comparable arm's length transaction and is otherwise compliant with the terms of this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect Indenture. Prior to entering into any Affiliate Related Party Transaction or series of related Affiliate Related Party Transactions involving with an aggregate consideration value in excess of US$15.0 U.S.$15.0 million (or the Dollar Equivalent thereofequivalent thereof at the time of determination), the Guarantor must in addition obtain and deliver to the Board Resolution required in clause (a)(ii)(A) of this Section 4.12Trustee a favorable written opinion from an independent nationally recognized Brazilian or internationally recognized investment banking, an opinion issued by an accounting, appraisal auditing or investment banking consulting firm of recognized international standing as to the fairness of the transaction to the Parent Guarantor or such Restricted Subsidiary of such Affiliate Transaction and its Subsidiaries from a financial point of view.
(bc) The foregoing limitation does not limit, and shall paragraphs of this Section 4.14 do not apply to:
(i) any employment transaction between the Guarantor and any Subsidiary or compensation agreement between Subsidiaries and the Guarantor;
(whether based ii) the payment of reasonable and customary regular fees to directors of the Guarantor who are not employees of the Guarantor;
(iii) any Restricted Payments described in cash Section 4.07(a)(i) if permitted by that covenant;
(iv) any issuance or securitiessale of Equity Interests (other than Disqualified Stock);
(v) transactions or payments pursuant to any employee, officer or director indemnification agreementcompensation or benefit plans, severance customary indemnifications or termination agreement or any similar arrangement arrangements entered into in the ordinary course of business;
(vi) transactions pursuant to agreements in effect on the Issue Date and described in the Offering Memorandum, as amended, modified or replaced from time to time so long as the amended, modified or new agreements, taken as a whole, are no less favorable to the Guarantor and its Subsidiaries than those in effect on the date of this Indenture;
(vii) any Sale Leaseback Transaction otherwise permitted under Section 4.10 if such transaction is on market terms;
(viii) the issuance of a guarantee by the Parent Guarantor under the Cosan IFC Loan;
(ix) any advance, loan or other extension of credit (or guarantee thereof) in connection with the use of the proceeds of the Notes (including any Additional Notes) as well as additional loans outstanding from the Guarantor or any Restricted Subsidiary of its Subsidiaries to an Affiliate to the extent that any such advance, loan or other extension of credit (i) has a Stated Maturity that is prior to the Stated Maturity of the Notes and (ii) is on market terms; and
(x) (A) transactions with their respective officerscustomers, directors clients, distributors, suppliers or employees and payments pursuant thereto, including the payment purchasers or sellers of reasonable fees and reimbursement of expensesgoods or services, in each case in the ordinary course of business;
business and on market terms, or (ii) transactions between or among the Parent Guarantor and any Wholly Owned Restricted Subsidiary (other than any member of the ER Group) or between or among Wholly Owned Restricted Subsidiaries (other than any member of the ER Group);
(iii) transactions between and among any member of the ER Group;
(iv) transactions between, on the one hand, the Parent Guarantor or any Parent Entity and, on the other hand, any member of the ER Group relating to any Indebtedness or Investment permitted to be Incurred or made under the Indenture;
(v) any Restricted Payment (other than a Permitted Investment) not prohibited by Section 4.04;
(vi) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Guarantor;
(vii) the payment of compensation to officers and directors of the Parent Guarantor or any Restricted Subsidiary pursuant to an employee stock or share option scheme, so long as such scheme is in compliance with the listing rules of The Stock Exchange of Hong Kong Limited;
(viiiB) transactions with a Person (joint ventures or other than any member of the ER Group or an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor, directly or indirectly, owns Capital Stock in, or controls, such Person or solely because the Parent Guarantor or one of its Subsidiaries has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(ix) loans or advances to officers, directors or employees in the ordinary course of business in an aggregate principal amount not to exceed US$5.0 million (or the Dollar Equivalent thereof) at any one time outstanding;
(x) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Parent Guarantor or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition or merger; and
(xi) transactions with a Person that is an Affiliate of the Parent Guarantor solely as a result of or in connection with the Expansion Transaction.
(c) In addition, the requirements of Section 4.12(a)(ii) shall not apply to (i) Investments (other than Permitted Investments) not prohibited by Section 4.04, (ii) transactions pursuant to agreements in effect on the Exchange Date, or any amendment or modification or replacement thereof, so long as such amendment, modification or replacement is not materially more disadvantageous to the Parent Guarantor and its Restricted Subsidiaries than the original agreement in effect on the Exchange Date, (iii) transactions with customers, clients, suppliers, contractors, other service providers or purchasers and sellers of goods and services or lessors or lessees, and (iv) any transaction between or among the Parent Guarantor and any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary (other than any member of the ER Group); provided that (A) in the case of clause (iii), such transaction is arrangements entered into in the ordinary course of business business, on market terms and consistent with past practice or industry norms.
(Bd) in Notwithstanding any other provision hereof, the case Guarantor or any of clause (iv) none of the minority shareholders its Subsidiaries will not maintain or minority partners of or in such Restricted Subsidiary is a Person described in clauses (x) or (y) of Section 4.12(a) make any loan to an Affiliate (other than by reason to the Guarantor or its Subsidiaries) except to the extent that (1) the aggregate amount outstanding of any such minority shareholder or minority partner being an officer or director loans do not exceed R$140.5 million (excluding any loans with the use of such Restricted Subsidiaryproceeds of the Notes (and any Additional Notes)), and (2) any loan has a Stated Maturity that is prior to the Stated Maturity of the Notes and is on market terms.
Appears in 1 contract
Samples: Indenture (Cosan Ltd.)
Limitation on Transactions with Shareholders and Affiliates. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary toSubsidiary, directly or indirectly, to enter into, renew or extend any transaction or arrangement (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with (x) any holder (or any Affiliate of such holder) of 10% or more of any class of Capital Stock of the Parent Guarantor or (y) with any Affiliate of the Parent Guarantor (each an “Affiliate Transaction”)Parent, unless:
(i) the Affiliate Transaction such transaction or series of transactions is on terms that are no less favorable to the Parent Guarantor or the relevant such Restricted Subsidiary than those that would have been could be obtained in a comparable arm’s-arm’s length transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not such a holder or an Affiliate of the Parent Guarantor; andAffiliate;
(ii) the Parent Guarantor delivers to the Trustee:
(A) with respect to any Affiliate Transaction if such transaction or series of related Affiliate Transactions involving transactions involves aggregate consideration in excess of US$5.0 million ($10,000,000, then such transaction or the Dollar Equivalent thereof), a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this covenant and such Affiliate Transaction has been series of transactions is approved by a majority of the Board of Directors of Parent, including the approval of a majority of the independent, disinterested members directors, and is evidenced by a resolution of the Board of DirectorsDirectors of Parent; and
(Biii) with respect to any Affiliate Transaction if such transaction or series of related Affiliate Transactions involving transactions involves aggregate consideration in excess of US$15.0 million ($25,000,000, then Parent or the Dollar Equivalent thereof), in addition such Restricted Subsidiary will deliver to the Board Resolution required in clause (a)(ii)(A) of this Section 4.12, an Administrative Agent a written opinion issued by an accounting, appraisal or investment banking firm of recognized international standing as to the fairness to the Parent Guarantor or such Restricted Subsidiary of such Affiliate Transaction transaction from a financial point of view.
view from a nationally recognized investment banking firm (b) or, if an investment banking firm is generally not qualified to give such an opinion, by a nationally recognized appraisal firm or accounting firm). Any such transaction or series of transactions shall be conclusively deemed to be on terms no less favorable to Parent or such Restricted Subsidiary than those that could be obtained in an arm’s length transaction if such transaction or transactions are approved by a majority of the Board of Directors of Parent, including a majority of the independent, disinterested directors, and are evidenced by a resolution of the Board of Directors of Parent. The foregoing limitation does not limit, and shall will not apply to:
(ia) any employment transaction between Parent and any of its Restricted Subsidiaries or compensation agreement between Restricted Subsidiaries;
(whether based in cash or securities), officer or director indemnification agreement, severance or termination agreement or any similar arrangement entered into by the Parent Guarantor or any Restricted Subsidiary with their respective officers, directors or employees and payments pursuant thereto, including b) the payment of reasonable and customary regular fees and reimbursement of expenses, in each case in the ordinary course of business;
(ii) transactions between or among the Parent Guarantor and any Wholly Owned Restricted Subsidiary (other than any member of the ER Group) or between or among Wholly Owned Restricted Subsidiaries (other than any member of the ER Group);
(iii) transactions between and among any member of the ER Group;
(iv) transactions between, on the one hand, the Parent Guarantor or any Parent Entity and, on the other hand, any member of the ER Group relating to any Indebtedness or Investment permitted to be Incurred or made under the Indenture;
(v) any Restricted Payment (other than a Permitted Investment) not prohibited by Section 4.04;
(vi) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Guarantor;
(vii) the payment of compensation to officers and directors of the Parent Guarantor or any Restricted Subsidiary pursuant to an employee stock or share option scheme, so long as such scheme is in compliance with the listing rules of The Stock Exchange of Hong Kong Limited;
(viii) transactions with a Person (other than any member of the ER Group or an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor, directly or indirectly, owns Capital Stock in, or controls, such Person or solely because the Parent Guarantor or one of its Subsidiaries has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(ix) loans or advances to officers, directors or employees in the ordinary course of business in an aggregate principal amount not to exceed US$5.0 million (or the Dollar Equivalent thereof) at any one time outstanding;
(x) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Parent Guarantor or any of its Restricted Subsidiaries; provided that such agreement was Subsidiaries who are not its employees and Indemnification Arrangements entered into in contemplation by Parent or any of such acquisition or merger; and
(xi) transactions with a Person that is an Affiliate its Restricted Subsidiaries and approved by the Board of the Parent Guarantor solely as a result Directors of or in connection with the Expansion Transaction.Parent;
(c) In addition, the requirements of Section 4.12(a)(ii) shall not apply to (i) Investments (other than Permitted Investments) any Restricted Payments not prohibited by Section 4.04, Section 6.3 and any Permitted Investment other than a Permitted Investment made pursuant to clause (iiix) of the definition thereof;
(d) transactions pursuant to agreements provided for in the Employment Agreement as in effect on the Exchange DateJanuary 16, 2004;
(e) loans and advances to employees of Parent or any amendment or modification or replacement thereof, so long as such amendment, modification or replacement is not materially more disadvantageous to the Parent Guarantor and its Restricted Subsidiaries than the original agreement in effect on the Exchange Date, (iii) transactions with customers, clients, suppliers, contractors, other service providers or purchasers and sellers of goods and services or lessors or lessees, and (iv) any transaction between or among the Parent Guarantor and any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary (other than exceeding at any member of the ER Group); provided that (A) one time outstanding $5,000,000 in the case of clause (iii)aggregate, such transaction is entered into in the ordinary course of business and (B) in the case of clause (iv) none of the minority shareholders or minority partners of or in such Restricted Subsidiary is a Person described in clauses (x) or (y) of Section 4.12(a) (other than by reason of such minority shareholder or minority partner being an officer or director of such Restricted Subsidiary).accordance with past practice;
Appears in 1 contract
Samples: Term Loan Agreement (Primus Telecommunications Group Inc)
Limitation on Transactions with Shareholders and Affiliates. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, conduct, renew or extend any transaction or arrangement (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with (x) any holder (or any Affiliate of such holder) of 1010.0% or more of any class of Capital Stock of the Parent Guarantor or (y) with any Affiliate of the Parent Guarantor (each an “Affiliate Transaction”), unless:
(i) the Affiliate Transaction is on fair and reasonable terms that are no less favorable to the Parent Guarantor or the relevant Restricted Subsidiary Subsidiary, as the case may be, than those that would have been obtained at the time of the Affiliate Transaction in a comparable arm’s-length transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not neither such a holder or nor an Affiliate of the Parent Guarantor; and
(ii) the Parent Guarantor delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$5.0 million (or the Dollar Equivalent thereof), a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$15.0 10.0 million (or the Dollar Equivalent thereof), in addition to the Board Resolution required in clause (a)(ii)(A(ii)(A) of this Section 4.12above, an opinion issued by an accounting, appraisal or investment banking firm of recognized international standing as to the fairness to the Parent Guarantor or such Restricted Subsidiary Subsidiary, as the case may be, of such Affiliate Transaction from a financial point of viewview issued by an independent accounting, appraisal or investment banking firm of recognized international standing.
(b) The foregoing limitation does not limit, and shall not apply to:
(i) any employment or compensation agreement (whether based in cash or securities), officer or director indemnification agreement, severance or termination agreement or any similar arrangement entered into by the Parent Guarantor or any Restricted Subsidiary with their respective officers, directors or employees and payments pursuant thereto, including the payment of reasonable and customary regular fees and reimbursement to directors of expenses, in each case in the ordinary course Parent Guarantor who are not employees of businessthe Parent Guarantor;
(ii) transactions between or among the Parent Guarantor and any Wholly Owned Restricted Subsidiary (other than any member of the ER Group) or between or among Wholly Owned Restricted Subsidiaries (other than any member of the ER Group)Subsidiaries;
(iii) transactions between and among any member Restricted Payment of the ER Grouptype described in clause (i) or (ii) of Section 4.07(a) (other than Restricted Payments made in respect of Series D Preferred Stock) if permitted by Section 4.07;
(iv) transactions between, on the one hand, the Parent Guarantor or any Parent Entity and, on the other hand, any member of the ER Group relating to any Indebtedness or Investment permitted to be Incurred or made under the Indenture;
(v) any Restricted Payment (other than a Permitted Investment) not prohibited by Section 4.04;
(vi) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Guarantor;
(v) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Parent Guarantor or any Restricted Subsidiary with directors, officers, employees and consultants in the ordinary course of business and the payment of reasonable compensation pursuant thereto;
(vi) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor owns, directly or indirectly, Capital Stock in such Person;
(vii) transactions with customers, clients, suppliers or joint venture partners in the ordinary course of the business of the Parent Guarantor and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the members of the Board of Directors or Senior Management of the Parent Guarantor, such transactions or agreements are on terms that are no less favorable to the Parent Guarantor or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions or agreements in a comparable transaction or agreement by the Parent Guarantor or such Restricted Subsidiary with an unrelated Person;
(viii) Restricted Payments in respect of the Series D Preferred Stock made in accordance with the terms thereof to the extent permitted under Section 4.07; and
(ix) the payment of compensation to officers and directors of the Parent Guarantor or any Restricted Subsidiary Subsidiary, in the ordinary course of business, pursuant to an employee stock or share option schemeplan, so long as restricted stock plans, long-term incentive plans or similar employee benefits plans; provided that such scheme or plans is in compliance with the listing rules of The the Nasdaq Global Market or such other recognized stock exchange on which any Capital Stock Exchange of Hong Kong Limited;
(viii) transactions with a Person (other than any member of the ER Group or an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantoris listed, directly or indirectly, owns for so long as any Capital Stock in, or controls, such Person or solely because the Parent Guarantor or one of its Subsidiaries has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(ix) loans or advances to officers, directors or employees in the ordinary course of business in an aggregate principal amount not to exceed US$5.0 million (or the Dollar Equivalent thereof) at any one time outstanding;
(x) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Parent Guarantor or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition or merger; and
(xi) transactions with a Person that is an Affiliate of the Parent Guarantor solely as a result of is listed on the Nasdaq Global Market or in connection with the Expansion Transactionsuch other stock exchange.
(c) In addition, the requirements of Section 4.12(a)(iiclause (ii) of Section 4.15(a) shall not apply to (i) Investments (other than Permitted Investments) not prohibited by Section 4.04Section 4.07, (ii) transactions pursuant to agreements in effect on the Exchange DateOriginal Issue Date and described in the Offering Memorandum, or any amendment or modification or replacement thereof, so long as such amendment, modification or replacement is not materially more disadvantageous to the Parent Guarantor and its Restricted Subsidiaries than the original agreement in effect on the Exchange Date, Original Issue Date and (iii) transactions with customers, clients, suppliers, contractors, other service providers or purchasers and sellers of goods and services or lessors or lessees, and (iv) any transaction between or among the Parent Guarantor Guarantor, any Wholly Owned Restricted Subsidiary and any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary (other than any member of the ER Group)or between or among Restricted Subsidiaries that are not Wholly Owned Restricted Subsidiaries; provided that (A) in the case of clause (iii(iii), (A) such transaction is entered into in the ordinary course of business and (B) in the case of clause (iv) none of the minority shareholders or minority partners of or in such Restricted Subsidiary that is not a Wholly Owned Subsidiary is a Person described in clauses clause (x) or (y) of Section 4.12(a) (other than by reason of such minority shareholder or minority partner being an officer or director of such Restricted SubsidiarySection 4.15(a).
Appears in 1 contract
Samples: Indenture (China XD Plastics Co LTD)
