Actions Pending the Closing. (a) Except (1) as required by applicable Law or by the Bankruptcy Case, or (2) the limitations of the DIP Credit Agreement, or (3) as otherwise expressly contemplated by this Agreement, or (4) with the prior written consent of Purchaser, during the period from the Effective Date to and through the Closing Date, the Sellers shall, and shall cause the other Seller Entities and Seller shall operate the Joint Venture to: (i) conduct the Business in substantially the same manner as conducted as of the Effective Date in the ordinary course of business; (ii) use their commercially reasonable efforts to (A) maintain and preserve the business organization and management of the Business intact, (B) keep available the services of the Employees, and (C) maintain the existing relations with customers, distributors, suppliers, -65- creditors, business partners, Service Providers, Employees and others having business dealings with the Business; (iii) file all material Tax Returns and pay or deposit all material Taxes on a timely basis in the ordinary course of business; (iv) (A) maintain all Purchased Assets in good repair, working order and condition (ordinary wear and tear excepted) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto in the ordinary course of business, and (B) defend and protect the Purchased Assets from infringement or deterioration; (v) pay all undisputed accounts payable and collect all accounts receivable in the ordinary course of business; (vi) comply with all applicable Laws (including Environmental Laws) in all material respects; and (vii) deliver any operational proposals or authorities for expenditures regarding the Xxxxx and Mineral Leases. (b) Except (1) as required by applicable Law or permitted within the Bankruptcy Case, or (2) as permitted under the DIP Credit Agreement, or (3) as otherwise contemplated by this Agreement, or (4) with the prior written consent of Purchaser, during the period from the Effective Date to and through the Closing Date, the Sellers shall not, and shall cause the other Seller Entities and operate the Joint Venture so as not to: (i) permit, offer, agree or commit (in writing or otherwise) to permit, any of the Purchased Assets to become subject, directly or indirectly, to any Lien or Legal Proceeding, except for any Permitted Liens; (ii) enter into any Contract for the direct or indirect sale (whether by merger, sale of assets or stock, or otherwise), transfer, financing, assignment, conveyance, lease recapitalization or other disposition of the Business as a whole or any Purchased Asset (including any Hydrocarbon sales, supply, or exchange contract, but excluding, any disposition in connection with the plugging and abandoning of dry or non-commercial Xxxxx) or that otherwise affects any Purchased Asset or the ability of Purchaser to determine the number of Employees it will be hiring, their qualifications and their terms and conditions of employment; provided, that this Section 8.2(b)(ii) shall not be deemed to -66- prohibit the Sellers from entering into (A) Contracts for the purchase, gathering, processing, transportation, and sale of Hydrocarbon production in the ordinary course of business; provided, that each such Contract is terminable by the applicable Seller without penalty upon 60 days’ or less notice, and (B) a Contract to consummate a Competing Transaction; (iii) other than in the ordinary course of business (A) enter into any Contract that would constitute a Material Contract, if in effect on the Effective Date, or (B) assume, amend, modify or terminate any Material Contract to which a Seller Entity or the Joint Venture is a party or by which any Seller Entity or the Joint Venture is bound and that is used in or related to the Business or the Purchased Assets (including any Purchased Contract), or fail to exercise any renewal right with respect to any Material Contract (including any Real Property Lease) that by its terms would otherwise expire; (iv) move any equipment, machinery, or other Purchased Assets from the facilities of the Business, except for the movement in the ordinary course of business of any personal property, fixtures, equipment or other Purchased Assets related to a Well that has been plugged and abandoned as dry or non-commercial; (v) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Business, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; (vi) adopt, establish, enter into, amend, terminate or increase the benefits under any Employee Benefit Plan or other employee benefit, plan, practice, program, policy or Contract that will be a Transferred Benefit Plan, in any case other than as may be required by the terms of such Employee Benefit Plan or other Contract, as may be required by applicable Law, in order to qualify under sections 401 and 501 of the Code, or in order to comply with section 409A of the Code; (vii) materially increase the compensation or benefits (including granting any bonuses, whether monetary or otherwise) of any current or former Employee or Service Provider other than as provided -67- for in any Employee Benefit Plan or written Contract (x) in effect as of the Effective Date or (y) that will not be a Transferred Benefit Plan; (viii) grant or increase any severance, retention, change-of-control or similar payments to any current or former Employee or Service Provider other than as provided for in any Employee Benefit Plan or written Contract made available to Purchaser prior to the Effective Date; or (ix) enter into any collective bargaining agreement or similar Contract; (x) compromise any material Indebtedness or claim or waive or release any right of the Seller Entities that constitutes a Purchased Asset; (xi) assign, sublet, pledge, encumber, terminate, amend or modify in any manner any Real Property; (xii) permit the lapse of any right relating to the Purchased Intellectual Property or any other intangible Purchased Asset; (xiii) use any Purchased Asset (other than cash or cash equivalents of the Business) to pay for any cost or expense arising out of or relating to the transactions contemplated hereby; (xiv) enter into any Contract to license any Purchased Intellectual Property or renew, extend, expand or otherwise amend the terms of any existing Intellectual Property License; (xv) commit to participate in the drilling of any new Well, other new operations on the Real Property or capital projects that are inconsistent with the terms of the DIP Credit Agreement or any budget in connection therewith; (xvi) merge or consolidate any Seller Entity or the Joint Venture with any other Person or acquire any business or equity interests or any other Person; (xvii) not take any action that would constitute or result in an Event of Default (as defined in the DIP Credit Agreement); (xviii) create or distribute any authority for expenditures on Xxxxx and Mineral Leases, or make an election to consent or non-consent -68- to any authority for expenditure or operations proposal regarding the Xxxxx and Mineral Leases; or (xix) take, or agree, commit or offer (in writing or otherwise) to take, any actions in violation of this Section 8.2(b).
Appears in 1 contract
Samples: Asset Purchase Agreement
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by From the Bankruptcy Casedate hereof until the Closing Date, or (2) the limitations of the DIP Credit Agreement, or (3) and except as otherwise expressly contemplated provided for by this Agreement, or consented to or approved by Purchaser, Sellers shall operate the Business in the ordinary course and shall use commercially reasonable efforts to maintain intact and preserve in all material respects Sellers’ business organization, the Purchased Assets, the Assumed Contracts, their properties, the Business and their relationships with Customers, Suppliers, employees and other Persons in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. Sellers shall promptly notify Purchaser of any material changes to the Business, or WPCS-Seattle’s operations, financial position, assets, Assumed Contracts or prospects. Should any such fact or condition require any change in the Sellers’ disclosure schedules if the Sellers’ disclosure schedules were dated the date of the occurrence or discovery of any such fact or condition, Sellers will promptly deliver to Purchaser a supplement to the disclosure schedule specifying such change (4the “Supplemental Disclosure Schedules”).
(b) Without limiting the generality of Section 6.4(a), above, from the date hereof until the Closing Date, Sellers shall not, except with the prior written consent of Purchaser, during the period from the Effective Date to Purchaser and through the Closing Date, the Sellers shall, and shall cause the other Seller Entities and Seller shall operate the Joint Venture to: except as expressly contemplated or permitted by this Agreement:
(i) conduct carry on the Business other than in the usual, regular and ordinary course in substantially the same manner as conducted as of the Effective Date in the ordinary course of business; heretofore conducted;
(ii) use their commercially reasonable efforts to (A) maintain and preserve the business organization and management of the Business intact, (B) keep available the services of the Employees, and (C) maintain the existing relations with customers, distributors, suppliers, -65- creditors, business partners, Service Providers, Employees and others having business dealings with the Business; (iii) file all material Tax Returns and pay or deposit all material Taxes on a timely basis incur any indebtedness in the ordinary course of business; (iv)
(A) maintain all Purchased Assets in good repair, working order and condition (ordinary wear and tear excepted) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto in the ordinary course of business, and (B) defend and protect the Purchased Assets from infringement or deterioration; (v) pay all undisputed accounts payable and collect all accounts receivable in the ordinary course of business; (vi) comply with all applicable Laws (including Environmental Laws) in all material respects; and (vii) deliver any operational proposals or authorities for expenditures regarding the Xxxxx and Mineral Leases.
(b) Except (1) as required by applicable Law or permitted within the Bankruptcy Case, or (2) as permitted under the DIP Credit Agreement, or (3) as otherwise contemplated by this Agreement, or (4) with the prior written consent of Purchaser, during the period from the Effective Date to and through the Closing Date, the Sellers shall not, and shall cause the other Seller Entities and operate the Joint Venture so as not to: (i) permit, offer, agree or commit (in writing or otherwise) to permit, any of the Purchased Assets to become subject, directly or indirectly, to any Lien or Legal Proceeding, except for any Permitted Liens; (ii) enter into any Contract for the direct or indirect sale (whether by merger, sale of assets or stock, or otherwise), transfer, financing, assignment, conveyance, lease recapitalization or other disposition of the Business as a whole or any Purchased Asset (including any Hydrocarbon sales, supply, or exchange contract, but excluding, any disposition in connection with the plugging and abandoning of dry or non-commercial Xxxxx) or that otherwise affects any Purchased Asset or the ability of Purchaser to determine the number of Employees it will be hiring, their qualifications and their terms and conditions of employment; provided, that this Section 8.2(b)(ii) shall not be deemed to -66- prohibit the Sellers from entering into (A) Contracts for the purchase, gathering, processing, transportation, and sale of Hydrocarbon production in the ordinary course of business; provided, that each such Contract is terminable by the applicable Seller without penalty upon 60 days’ or less notice, and (B) a Contract to consummate a Competing Transaction; (iii) an amount greater than $25,000 other than in the ordinary course of business the Business;
(Aiii) enter into any Contract that would constitute a Material Contract, if in effect on the Effective Date, or (B) assume, amend, modify or terminate any Material Contract to which a Seller Entity or the Joint Venture is a party or by which any Seller Entity or the Joint Venture is bound and that is used in or related to the Business or the Purchased Assets (including any Purchased Contract), or fail to exercise any renewal right with respect to any Material Contract (including any Real Property Lease) that by its terms would otherwise expire; amend their Charter Documents;
(iv) move waive or release any equipment, machinery, material right or other Purchased Assets from the facilities of the Business, except for the movement in the ordinary course of business of cancel or compromise any personal property, fixtures, equipment material debt or other Purchased Assets related to a Well that has been plugged and abandoned as dry or non-commercial; claim;
(v) make liquidate or change any election, change an annual accounting period, adopt sell or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Business, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any other similar action relating to the filing dispose of any Tax Return Purchased Assets or acquire any material assets other than inventory in the payment of any Tax; usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(vi) adopt, establish, enter into, amend, terminate or increase the benefits under rate of compensation of, pay or agree to pay any Employee Benefit Plan bonus to, or provide any other employee benefitbenefit or incentive to, planany of the directors, practiceofficers or employees of WPCS-Seattle or directors, programofficers or employees of WPCS providing services to WPCS-Seattle, policy except in a manner consistent with past practice or Contract that will be a Transferred Benefit Plan, in any case other than as may be required by the terms of such Employee Benefit Plan law or other Contract, as may be required by applicable Law, in order to qualify under sections 401 and 501 of the Code, or in order to comply with section 409A of the Code; (vii) materially increase the compensation or benefits (including granting any bonuses, whether monetary or otherwise) of any current or former Employee or Service Provider other than as provided -67- for in any Employee Benefit Plan or written Contract (x) contractual obligation in effect as of the Effective Date date hereof;
(vii) knowingly take any action, or (y) knowingly fail to take any action, that would render any representation, warranty, covenant or agreement in this Agreement inaccurate or breached such that the conditions in Section 8.1 or Section 8.2 will not be a Transferred Benefit Plan; satisfied;
(viii) grant modify any Assumed Contracts, including by a change order or increase any severanceoral modification, retention, change-of-control or similar payments to any current or former Employee or Service Provider other than as provided for in any Employee Benefit Plan or written Contract made available to Purchaser prior to the Effective Dateusual, regular and ordinary course; or or
(ix) enter into agree or consent to do any collective bargaining agreement or similar Contract; (x) compromise any material Indebtedness or claim or waive or release any right of the Seller Entities that constitutes a Purchased Asset; (xi) assign, sublet, pledge, encumber, terminate, amend or modify in any manner any Real Property; (xii) permit the lapse of any right relating to the Purchased Intellectual Property or any other intangible Purchased Asset; (xiii) use any Purchased Asset (other than cash or cash equivalents of the Business) to pay for any cost or expense arising out of or relating to the transactions contemplated hereby; (xiv) enter into any Contract to license any Purchased Intellectual Property or renew, extend, expand or otherwise amend the terms of any existing Intellectual Property License; (xv) commit to participate in the drilling of any new Well, other new operations on the Real Property or capital projects that are inconsistent with the terms of the DIP Credit Agreement or any budget in connection therewith; (xvi) merge or consolidate any Seller Entity or the Joint Venture with any other Person or acquire any business or equity interests or any other Person; (xvii) not take any action that would constitute or result in an Event of Default (as defined in the DIP Credit Agreement); (xviii) create or distribute any authority for expenditures on Xxxxx and Mineral Leases, or make an election to consent or non-consent -68- to any authority for expenditure or operations proposal regarding the Xxxxx and Mineral Leases; or (xix) take, or agree, commit or offer (in writing or otherwise) to take, any actions in violation of this Section 8.2(b)foregoing.
Appears in 1 contract
Actions Pending the Closing. (a) Except (1I) as required by applicable Law (including actions, rules, regulations or requirements of a Government Body in response or related to the COVID-19 pandemic) or by order of the Bankruptcy CaseCourt, or (2) the limitations of the DIP Credit Agreement, or (3II) as otherwise expressly contemplated by this Agreement or the DIP Credit Agreement, (III) as required by any Contract to which any of Sellers or any of the Acquired Entities are bound, (IV) as set forth on Schedule 8.2 or (4V) with the prior written consent of PurchaserPurchaser (which shall not be unreasonably withheld, conditioned or delayed), during the period from the Effective Date to and through the Closing Date, the :
(a) Sellers shallwill, and shall will cause the other Seller Acquired Entities and Seller shall operate to, (taking into account the Joint Venture to: (i) conduct the Business in substantially the same manner as conducted as commencement of the Effective Date Bankruptcy Cases and customary and reasonable liquidation and shut-down of operations of Sellers other than in respect of the ordinary course Purchased Assets or the Business, other similar changes, facts and circumstances that customarily and reasonably result from the events leading up to and following the commencement of business; (iithe Bankruptcy Cases, and the Company’s and its Subsidiaries’ reasonably necessary and commercially reasonable responses to and actions in light of Changes related to the COVID-19 pandemic) comply with applicable Law in all material respects and to use their commercially reasonable efforts to (A) maintain and preserve the business organization and management of the Business intact, (B) keep available the services of the Employees, and (Ci) maintain the existing relations with customers, distributors, suppliers, -65- creditors, business partners, Service Providers, Employees and others having business dealings with the Business; (iii) file all material Tax Returns and pay or deposit all material Taxes on a timely basis in the ordinary course of business; (iv)
(A) maintain all Purchased Assets and the assets and properties of the Acquired Entities in good repairtheir current condition, working order and condition (ordinary wear and tear excepted) excepted (and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto excluding sales of inventory in the ordinary course Ordinary Course of businessBusiness), and (Bii) defend and protect the Purchased Assets and the assets and properties of the Acquired Entities from infringement deterioration and (iii) preserve intact the material business relationships with customers, suppliers, distributors and others with whom Sellers or deterioration; (v) pay all undisputed accounts payable and collect all accounts receivable the Acquired Entities deal in the ordinary course Ordinary Course of businessBusiness; (vi) comply with all applicable Laws (including Environmental Laws) in all material respects; and (vii) deliver any operational proposals or authorities for expenditures regarding the Xxxxx and Mineral Leases.and
(b) Except Sellers will not, and will cause the Acquired Entities not to, take any of the following actions:
(i) sell, transfer, lease, sublease, encumber or otherwise dispose of (1) any material Purchased Assets or (2) any material assets of a Acquired Entity, in each case other than immaterial dispositions thereof and inventory sold or disposed of in the Ordinary Course of Business;
(ii) issue, sell, grant, pledge, dispose or transfer any equity interests in any Seller or Acquired Entity;
(iii) acquire any corporation, partnership, limited liability company, other business organization or division thereof;
(iv) merge or consolidate with or into any legal entity, dissolve, liquidate or otherwise terminate its existence;
(v) split, combine, consolidate, subdivide or reclassify any of the Acquired Entities’ capital stock, other equity interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities or enter into silent partnership agreements granting the silent partner entitlements to its proceeds;
(vi) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any securities of any Acquired Entity or Seller, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, any Acquired Entity or Seller or any securities of any Acquired Entity or Seller convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, any Acquired Entity or Seller, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than any transfers among Acquired Entities, among Sellers, or between any Acquired Entity and any Seller;
(vii) amend the Organizational Documents of any Seller or Acquired Entity in a manner that would reasonably be expected to materially delay or impede Sellers’ ability to consummate the Transactions;
(viii) enter into any joint venture agreement that involves a sharing of profits, cash flows, expenses or losses with other Persons related to or affecting the Business, the Purchased Assets or the Acquired Entities;
(ix) amend or modify in any material respects (other than by automatic extension or renewal) or terminate any Material Contract (other than by expiration on its terms) or enter into a Contract which, had it been entered into prior to the Effective Date, would have been a Material Contract;
(x) take any action (other than any actions required by the Bankruptcy Court or applicable Law) in breach of the Bidding Procedures Order or the Sale Order;
(xi) (1) reject or terminate (other than by expiration in accordance with its terms) any Purchased Contract or seek Bankruptcy Court approval to do so, or (2) fail to use commercially reasonable efforts to oppose any action by a third party to so terminate (including any action by a third party to obtain Bankruptcy Court approval to terminate) any Purchased Contract, except in each case, to the extent Purchaser has indicated in writing that it wishes Sellers to reject such Contract;
(xii) with respect to any Purchased Asset (1) agree to allow any form of relief from the automatic stay in the Bankruptcy Cases without the prior written consent of the Purchaser; or (2) fail to use commercially reasonable efforts to oppose any action by a third party to obtain relief from the automatic stay in the Bankruptcy Cases;
(xiii) (A) amend any Tax Return of any Acquired Entity for a Tax period ending on or before the Closing Date; (B) make any voluntary disclosure with respect to Taxes of any Acquired Entity for a Tax period ending on or before the Closing Date; (C) change any accounting method of any Acquired Entity for a Tax period ending on or before the Closing Date; or (D) make, change or rescind any Tax election of any Acquired Entity for a Tax period ending on or before the Closing Date;
(xiv) make any change in any method of accounting or accounting practice or policy, except as required by applicable Law or permitted within GAAP;
(xv) fail to maintain in full force and effect existing insurance policies;
(xvi) make any loans, advances or capital contributions to, or investments in, any other Person (other than to a Seller or Acquired Entity or immaterial advances to employees in the Ordinary Course of Business);
(xvii) voluntarily pursue or seek, or fail to use commercially reasonable efforts to oppose any third party in pursuing or seeking, a dismissal of or abstention of the Bankruptcy CaseCourt from any of the Bankruptcy Cases, or (2) as permitted conversion of any of the Bankruptcy Cases to cases under chapter 7 of the DIP Credit Agreement, or (3) as otherwise contemplated by this Agreement, or (4) with the prior written consent of Purchaser, during the period from the Effective Date to and through the Closing DateBankruptcy Code, the Sellers shall not, and shall cause appointment of a trustee under chapter 11 or chapter 7 of the other Seller Entities and operate Bankruptcy Code and/or the Joint Venture so as not to: appointment of an examiner with expanded powers in any of the Bankruptcy Cases;
(ixviii) permit, offer, agree or commit (in writing or otherwise) to permit, subject any of the Purchased Assets to become subject, directly or indirectly, any assets or properties of any Acquired Entity to any material Lien not in the Ordinary Course of Business other than Liens which will be discharged at or Legal Proceeding, except for any Permitted Liens; (ii) enter into any Contract for the direct or indirect sale (whether by merger, sale of assets or stock, or otherwise), transfer, financing, assignment, conveyance, lease recapitalization or other disposition of the Business as a whole or any Purchased Asset (including any Hydrocarbon sales, supply, or exchange contract, but excluding, any disposition in connection with the plugging Closing and abandoning except for Permitted Exceptions and Transferred Exceptions;
(xix) incur any indebtedness for borrowed money, entered into any capital lease or guarantee for any such indebtedness, in each case except to the extent solely constituting an Excluded Liability;
(xx) except as required under the terms of dry any Company Plan in effect as of the date of this Agreement or non-commercial XxxxxCollective Bargaining Agreement or as required by Law, with respect to Business Employees, (1) make or that otherwise affects grant any Purchased Asset general or special wage or salary increase (other than merit increases consistent with past practice within the ability of Purchaser to determine the number of Employees it will be hiringpast three years), their qualifications and their terms and conditions of employment; provided, that this Section 8.2(b)(ii(2) shall not be deemed to -66- prohibit the Sellers from entering into (A) Contracts for the purchase, gathering, processing, transportation, and sale of Hydrocarbon production make any material increase in the ordinary course payment of business; providedbenefits under any Company Plan, that each such Contract is terminable by (3) take any action with respect to the applicable Seller without penalty upon 60 days’ grant of any material severance or less notice, and termination pay (B) a Contract to consummate a Competing Transaction; (iii) other than in the ordinary course of business (A) enter into any Contract that would constitute a Material Contractpursuant to policies, if agreements or arrangements in effect on the Effective Date) which will become due, or (B4) assumeadopt, amend, modify amend or terminate any Material Contract to which a Seller Entity or the Joint Venture is a party or by which any Seller Entity or the Joint Venture is bound and that is used in or related to the Business or the Purchased Assets (including any Purchased Contract)Company Plan, or fail to exercise any renewal right with respect to any Material Contract (including any Real Property Lease) that by its terms would otherwise expire; (iv) move any equipment, machinery, or other Purchased Assets from the facilities of the Business, except for the movement than in the ordinary course Ordinary Course of business of any personal property, fixtures, equipment or other Purchased Assets related to a Well that has been plugged Business and abandoned as dry or non-commercial; (v) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Business, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; (vi) adopt, establish, enter into, amend, terminate or increase the benefits under any Employee Benefit Plan or other employee benefit, plan, consistent with past practice, program, policy or Contract that will be a Transferred Benefit Plan, in any case other than as may be required by the terms of such Employee Benefit Plan or other Contract, as may be required by applicable Law, in order to qualify under sections 401 and 501 of the Code, or in order to comply with section 409A of the Code; (vii) materially increase the compensation or benefits (including granting any bonuses, whether monetary or otherwise) of any current or former Employee or Service Provider other than as provided -67- for in any Employee Benefit Plan or written Contract (x) in effect as of the Effective Date or (y) that will not be a Transferred Benefit Plan; (viii) grant or increase any severance, retention, change-of-control or similar payments to any current or former Employee or Service Provider other than as provided for in any Employee Benefit Plan or written Contract made available to Purchaser prior to the Effective Date; or (ix5) enter into any collective bargaining material employment, consulting or similar agreement or similar Contractmaterially amend any existing employment agreement; provided that the actions set forth in this Section 8.2(b)(xx) may be taken to the extent such actions would not result in increased Liability to the Purchaser or its Affiliates (xincluding the Acquired Entities) compromise from and after Closing, including pursuant to Section 8.8; or
(xxi) agree or commit to any material Indebtedness or claim or waive or release any right of the Seller Entities that constitutes a Purchased Asset; (xi) assign, sublet, pledge, encumber, terminate, amend or modify in any manner any Real Property; (xii) permit the lapse of any right relating to the Purchased Intellectual Property or any other intangible Purchased Asset; (xiii) use any Purchased Asset (other than cash or cash equivalents of the Business) to pay for any cost or expense arising out of or relating to the transactions contemplated hereby; (xiv) enter into any Contract to license any Purchased Intellectual Property or renew, extend, expand or otherwise amend the terms of any existing Intellectual Property License; (xv) commit to participate in the drilling of any new Well, other new operations on the Real Property or capital projects that are inconsistent with the terms of the DIP Credit Agreement or any budget in connection therewith; (xvi) merge or consolidate any Seller Entity or the Joint Venture with any other Person or acquire any business or equity interests or any other Person; (xvii) not take any action that would constitute or result in an Event of Default (as defined in the DIP Credit Agreement); (xviii) create or distribute any authority for expenditures on Xxxxx and Mineral Leases, or make an election to consent or non-consent -68- to any authority for expenditure or operations proposal regarding the Xxxxx and Mineral Leases; or (xix) take, or agree, commit or offer (in writing or otherwise) to take, any actions in violation of this Section 8.2(b)foregoing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Shiloh Industries Inc)
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by the Bankruptcy Case, or (2) the limitations of the DIP Credit Agreement, or (3) as otherwise expressly contemplated by this Agreement, or (43) with the prior written consent of the Purchaser, during the period from the Effective Execution Date to and through the Closing Date, the Sellers shall, and shall cause the other Seller Entities and Seller shall operate the Joint Venture to: :
(i) conduct the Business (A) in substantially the same manner as conducted as of the Effective Execution Date in the ordinary course of business; business and (B) as a reasonable prudent operator, in a good and workmanlike manner, in accordance with good oilfield practice, and in compliance with applicable Law;
(ii) use their commercially reasonable efforts to (A) maintain and preserve the business organization and management of the Business intact, (B) keep available the services of the Employees, and (C) maintain the existing relations with customers, distributors, suppliers, -65- creditors, business partners, Service Providers, Employees and others having business dealings with the Business; ;
(iii) file all material Tax Returns and pay or deposit all material Taxes on a timely basis in the ordinary course of business; (iv)business during the pendency of the Bankruptcy Case;
(A) maintain all Purchased Assets in good repair, working order and condition (ordinary wear and tear excepted) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto in the ordinary course of business, (B) maintain the Seller’s Records in accordance with good industry practice, and (BC) defend and protect the Purchased Assets from infringement or deterioration; ;
(v) pay all undisputed accounts payable and collect all accounts receivable in the ordinary course of businessbusiness and consistent with the Cash Collateral Order; and
(vi) comply with all applicable Laws (including Environmental Laws) in all material respects; and (vii) deliver any operational proposals or authorities for expenditures regarding the Xxxxx and Mineral Leases.
(b) Except (1) as required by applicable Law or permitted within the Bankruptcy Case, or (2) as permitted under the DIP Credit AgreementCash Collateral Order, or (3) as otherwise contemplated by this Agreement, or (4) with the prior written consent of the Purchaser, during the period from the Effective Execution Date to and through the Closing Date, the Sellers shall not, and shall cause the other Seller Entities and operate the Joint Venture so as not to: :
(i) permit, offer, agree or commit (in writing or otherwise) to permit, any of the Purchased Assets to become subject, directly or indirectly, to any Lien or Legal Proceeding, except for any Permitted Liens; ;
(ii) enter into any Contract for the direct or indirect sale (whether by merger, sale of assets or stock, or otherwise), transfer, financing, assignment, conveyance, lease recapitalization or other disposition of the Business as a whole or any Purchased Asset (including any Hydrocarbon sales, supply, or exchange contract, but excluding, any disposition in connection with the plugging and abandoning of dry or non-commercial XxxxxWxxxx) or that otherwise affects any Purchased Asset or the ability of the Purchaser to determine the number of Employees (if any) it will be hiring, their qualifications and their terms and conditions of employment; provided, that this Section 8.2(b)(ii) shall not be deemed to -66- prohibit the Sellers from entering into (A) Contracts for the purchase, gathering, processing, transportation, and sale of Hydrocarbon production in the ordinary course of business; provided, however, that each such Contract is terminable by the applicable Seller without penalty upon 60 days’ sixty (60) days or less notice, and (B) a Contract to consummate a Competing Transaction; ;
(iii) other than in the ordinary course of business (A) enter into any Contract that would constitute a Material Contract, if in effect on the Effective Execution Date, or (B) assume, amend, modify or terminate any Material Contract to which a Seller Entity or the Joint Venture is a party or by which any Seller Entity or the Joint Venture is bound and that is used in or related to the Business or the Purchased Assets (including any Purchased Contract), or fail to exercise any renewal right with respect to any Material Contract (including any Real Property Lease) that by its terms would otherwise expire; ;
(iv) move any equipment, machinery, or other Purchased Assets from the facilities of the Business, except for the movement in the ordinary course of business of any personal property, fixtures, equipment or other Purchased Assets related to a Well that has been plugged and abandoned as dry or non-commercial; ;
(v) make or change any Tax election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle or compromise any Tax claim or assessment relating to the Business, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; ;
(vi) adopt, establish, enter into, amend, terminate or increase the benefits under any Employee Benefit Plan or other employee benefit, plan, practice, program, policy or Contract that will be a Transferred Benefit Plan, in any case other than as may be required by the terms of such Employee Benefit Plan or other Contract, as may be required by applicable Law, in order to qualify under sections 401 and 501 of the Code, or in order to comply with section 409A of the Code; (vii) materially increase the compensation or benefits (including granting any bonuses, whether monetary or otherwise) of any current or former Employee or Service Provider other than as provided -67- for in any Employee Benefit Plan or written Contract Provider;
(x) in effect as of the Effective Date or (y) that will not be a Transferred Benefit Plan; (viiivii) grant or increase any severance, retention, change-of-control or similar payments to any current or former Employee or Service Provider other than as provided for in any Employee Benefit Plan or written Contract made available to the Purchaser prior to the Effective Execution Date; or or
(ixviii) enter into any collective bargaining agreement or similar Contract; ;
(xix) compromise any material Indebtedness or claim or waive or release any right of the Seller Entities that constitutes a Purchased Asset; ;
(xix) assign, sublet, pledge, encumber, terminate, amend or modify in any manner any Real Property; ;
(xiixi) permit the lapse of any right relating to the Purchased Intellectual Property or any other intangible Purchased Asset; ;
(xiiixii) use any Purchased Asset (other than cash or cash equivalents of the Business) to pay for any cost or expense arising out of or relating to the transactions contemplated hereby; ;
(xivxiii) enter into any Contract to license any Purchased Intellectual Property or renew, extend, expand or otherwise amend the terms of any existing Intellectual Property License; ;
(xvxiv) commit to participate in the drilling of any new Well, other new operations on the Real Property or commence capital projects in each case that are (A) inconsistent with the terms of the DIP Credit Agreement Cash Collateral Order or the Approved Budget or (B) in excess of $25,000 in the aggregate to all working interest owners in the applicable Purchased Assets;
(xv) take any budget in connection therewith; action to amend, restate or otherwise modify the Approved Budget;
(xvi) merge or consolidate any Seller Entity or the Joint Venture with any other Person or acquire any business or equity interests or any other Person; ;
(xvii) not take (or fail to take) any action that would constitute or result in an Event of Default (as defined in the DIP Credit AgreementCash Collateral Order); ;
(xviii) create or distribute any authority for expenditures maintain insurance in a manner consistent with the insurance policies set forth on Xxxxx and Mineral Leases, or make an election to consent or non-consent -68- to any authority for expenditure or operations proposal regarding Section 5.26 of the Xxxxx and Mineral Leases; or Seller Disclosure Schedule;
(xix) commence, settle or compromise any Legal Proceeding that affects any of the Purchased Assets or the Business or that could reasonably be expected to adversely affect the Purchaser’s ability to conduct the Business after the Closing or the ownership or use by the Purchaser of the Purchased Assets in the operation of the Business after the Closing; or
(xx) take, or agree, commit or offer (in writing or otherwise) to take, (A) any actions in violation of this Section 8.2(b)) and/or (B) any actions outside of the ordinary course of the Sellers’ business as of the Execution Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (AMERICAN EAGLE ENERGY Corp)
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by the Bankruptcy Case, or (2) the limitations of the DIP Credit Agreement, or (3) as otherwise expressly contemplated by this Agreement, or (4) with the prior written consent of Purchaser, during the period from the Effective Date to and through the Closing Date, the Sellers shall, and shall cause the other Seller Entities and Seller shall operate the Joint Venture to: :
(i) conduct the Business in substantially the same manner as conducted as of the Effective Date in the ordinary course of business; ;
(ii) use their commercially reasonable efforts to (A) maintain and preserve the business organization and management of the Business intact, (B) keep available the services of the Employees, and (C) maintain the existing relations with customers, distributors, suppliers, -65- creditors, business partners, Service Providers, Employees and others having business dealings with the Business; ;
(iii) file all material Tax Returns and pay or deposit all material Taxes on a timely basis in the ordinary course of business; ;
(iv)
) (A) maintain all Purchased Assets in good repair, working order and condition (ordinary wear and tear excepted) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto in the ordinary course of business, and (B) defend and protect the Purchased Assets from infringement or deterioration; ;
(v) pay all undisputed accounts payable and collect all accounts receivable in the ordinary course of business; ;
(vi) comply with all applicable Laws (including Environmental Laws) in all material respects; and and
(vii) deliver any operational proposals or authorities for expenditures regarding the Xxxxx and Mineral Leases.
(b) Except (1) as required by applicable Law or permitted within the Bankruptcy Case, or (2) as permitted under the DIP Credit Agreement, or (3) as otherwise contemplated by this Agreement, or (4) with the prior written consent of Purchaser, during the period from the Effective Date to and through the Closing Date, the Sellers shall not, and shall cause the other Seller Entities and operate the Joint Venture so as not to: :
(i) permit, offer, agree or commit (in writing or otherwise) to permit, any of the Purchased Assets to become subject, directly or indirectly, to any Lien or Legal Proceeding, except for any Permitted Liens; ;
(ii) enter into any Contract for the direct or indirect sale (whether by merger, sale of assets or stock, or otherwise), transfer, financing, assignment, conveyance, lease recapitalization or other disposition of the Business as a whole or any Purchased Asset (including any Hydrocarbon sales, supply, or exchange contract, but excluding, any disposition in connection with the plugging and abandoning of dry or non-commercial Xxxxx) or that otherwise affects any Purchased Asset or the ability of Purchaser to determine the number of Employees it will be hiring, their qualifications and their terms and conditions of employment; provided, that this Section 8.2(b)(ii) shall not be deemed to -66- prohibit the Sellers from entering into (A) Contracts for the purchase, gathering, processing, transportation, and sale of Hydrocarbon production in the ordinary course of business; provided, that each such Contract is terminable by the applicable Seller without penalty upon 60 days’ or less notice, and (B) a Contract to consummate a Competing Transaction; ;
(iii) other than in the ordinary course of business (A) enter into any Contract that would constitute a Material Contract, if in effect on the Effective Date, or (B) assume, amend, modify or terminate any Material Contract to which a Seller Entity or the Joint Venture is a party or by which any Seller Entity or the Joint Venture is bound and that is used in or related to the Business or the Purchased Assets (including any Purchased Contract), or fail to exercise any renewal right with respect to any Material Contract (including any Real Property Lease) that by its terms would otherwise expire; ;
(iv) move any equipment, machinery, or other Purchased Assets from the facilities of the Business, except for the movement in the ordinary course of business of any personal property, fixtures, equipment or other Purchased Assets related to a Well that has been plugged and abandoned as dry or non-commercial; ;
(v) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Business, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; ;
(vi) adopt, establish, enter into, amend, terminate or increase the benefits under any Employee Benefit Plan or other employee benefit, plan, practice, program, policy or Contract that will be a Transferred Benefit Plan, in any case other than as may be required by the terms of such Employee Benefit Plan or other Contract, as may be required by applicable Law, in order to qualify under sections 401 and 501 of the Code, or in order to comply with section 409A of the Code; ;
(vii) materially increase the compensation or benefits (including granting any bonuses, whether monetary or otherwise) of any current or former Employee or Service Provider other than as provided -67- for in any Employee Benefit Plan or written Contract (x) in effect as of the Effective Date or (y) that will not be a Transferred Benefit Plan; ;
(viii) grant or increase any severance, retention, change-of-control or similar payments to any current or former Employee or Service Provider other than as provided for in any Employee Benefit Plan or written Contract made available to Purchaser prior to the Effective Date; or or
(ix) enter into any collective bargaining agreement or similar Contract; ;
(x) compromise any material Indebtedness or claim or waive or release any right of the Seller Entities that constitutes a Purchased Asset; ;
(xi) assign, sublet, pledge, encumber, terminate, amend or modify in any manner any Real Property; ;
(xii) permit the lapse of any right relating to the Purchased Intellectual Property or any other intangible Purchased Asset; ;
(xiii) use any Purchased Asset (other than cash or cash equivalents of the Business) to pay for any cost or expense arising out of or relating to the transactions contemplated hereby; ;
(xiv) enter into any Contract to license any Purchased Intellectual Property or renew, extend, expand or otherwise amend the terms of any existing Intellectual Property License; ;
(xv) commit to participate in the drilling of any new Well, other new operations on the Real Property or capital projects that are inconsistent with the terms of the DIP Credit Agreement or any budget in connection therewith; ;
(xvi) merge or consolidate any Seller Entity or the Joint Venture with any other Person or acquire any business or equity interests or any other Person; ;
(xvii) not take any action that would constitute or result in an Event of Default (as defined in the DIP Credit Agreement); ;
(xviii) create or distribute any authority for expenditures on Xxxxx and Mineral Leases, or make an election to consent or non-consent -68- to any authority for expenditure or operations proposal regarding the Xxxxx and Mineral Leases; or or
(xix) take, or agree, commit or offer (in writing or otherwise) to take, any actions in violation of this Section 8.2(b).
Appears in 1 contract
