Approval of Members. The following matters shall require Requisite Member Approval (provided that an explicit approval of such matter in the Approved Budget or related Member resolution shall constitute a Requisite Member Approval if such approval is explicitly identified as a Requisite Member Approval): (a) Prior to the Equalization Date to the extent not in accordance with Section 8.1, any distributions of Available Cash (including Tax Distributions); (b) The approval of the Proposed Budgets for the Company, other than (i) the Initial Budget, which shall be deemed approved upon the execution of this Agreement and (ii) budget items associated with capital expenditures relating to the agreements set forth on Exhibit G; provided that the Company may not without the Requisite Member Approval (i) enter into any additional **, (ii) enter into any agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements set forth on Exhibit G. In connection with any such approval, the Members having the authority to approve the Proposed Budget shall give the notice required by Section 6.15(d) below; (c) Material deviations from Approved Budgets, including (i) with respect to any Approved Budget, any modification or amendment of any ** or other ** contained therein, the satisfaction of which results in the ** pursuant to such budget, (ii) with respect to the capital expenditure budget, changes of more than ** to the **, but excluding any items prior to the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project **, and excluding any items after the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project ** and (iii) with respect to the operating expenditure budget, increases of more than $** to the ** or increases of more than $** to the ** calculated on a **; provided that, in any case, a Project, operation, venture, agreement or activity that has received Requisite Member Approval shall automatically be incorporated within the Approved Budget and any changes or deviations required to incorporate such Project, operation, venture, agreement or activity into the then current Approved Budget shall not require additional Requisite Member Approval; provided further that any additional changes or deviations associated with such Project, operation, venture, agreement or activity shall be subject to Requisite Member Approval to the extent they involve material deviations to the Approved Budget, as modified to include such new Project, operation, venture, agreement or activity, under this clause (c); provided, further, that changes in budget items listed in Section 6.15(a)(iii) through (vi) shall not be considered material deviations for purposes of this Section 6.12(c); (d) Any material change in the Primary Business or in the Company’s purpose; (e) The incurrence of Debt and the granting of Liens on the Company’s Property in an aggregate amount in excess of (A) $** prior to the Equalization Date and (B) $** after the Equalization Date, in each case excluding the Permitted Liens; (f) Any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest, currency or commodity hedging arrangement entered into by the Company, including any forward sales, calls, puts, swaps and other derivative transactions, whether financially or physically settled; provided that transactions to be settled (i) within ** based on ** or (ii) ** based on the **, shall not require Requisite Member Approval; (g) The acquisition or sale of any assets of the Company or its subsidiaries for consideration in excess of (i) $** prior to the Equalization Date and (ii) $** after the Equalization Date; (h) Entry into, termination or renewal of, or material modification or amendment of, (i) any commercial contractual commitment reasonably expected to (A) result in expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of $**, which $** threshold shall be subject to increase by ** per year, or (C) result in the commitment of more than ** of the capacity of any Company facility **, (ii) any joint venture, partnership or other similar arrangement involving the sharing of profits of the Company or any of its subsidiaries with any third-party, (iii) any contractual commitment that limits the freedom of the Company or any of its subsidiaries to compete within the Area of Mutual Interest, (iv) any contract for the lease of real property for ** and (v) settlement agreements or other agreements related to or proposing to resolve actual or threatened litigation, which involves (A) payment of greater than $** or (B) provides for restrictions or limitations on the Company’s ability to operate in the form of an equitable remedy; (i) The formation of any subsidiary of the Company; (j) Transactions or agreements (including amendments, terminations and renewals thereof) between the Company on the one hand, and a Member or an Affiliate of a Member on the other hand, unless such transaction or agreements (including amendments, terminations and renewals thereof) (i) has been approved by the other Members that are not a party to, or Affiliates of a Party to, such transaction or agreement and whose consent is required pursuant to this Section or (ii) is identified on Exhibit H, all of which are hereby approved by the Members; (k) The sale, exchange or other disposition of all, or substantially all, of the Company’s assets in one transaction or a series of related transactions, (l) Any merger into or with or consolidation with any other entity (i) in which the interests in the Company will be exchanged for a security with different rights, preferences or privileges or (ii) pursuant to which the Members will own less than 50% of the voting securities of the surviving entity; (m) Any repurchase by the Company of Interests in the Company or any equity interests in any of its subsidiaries; (n) Prior to the Equalization Date, other than in accordance with the obligations of the Members pursuant to Section 4.1, any efforts by the Company to raise additional capital, including the issuance of additional Interests or options to acquire Interests or any equity interests or options to acquire equity interests in any of the Company’s subsidiaries; (o) The registration of any equity or debt securities of the Company or its subsidiaries under applicable United States federal or foreign securities laws or any public offering of equity or debt securities of the Company or its subsidiaries (including any Qualified Public Offering). (p) Any declaration of bankruptcy, or the filing of a petition, or seeking protection, under any federal or state bankruptcy, insolvency or reorganization law; (q) The dissolution of the Company or the voluntary liquidation of the Company’s assets; (r) Designating a new Operator of the Company; (s) Approval of the maintenance of reserves less than the ** as authorized in the Approved Budget or more than the ** in the Approved Budget; (t) Permit the Company to create any Debt in favor of any Person; (u) Distributions in-kind of any assets of the Company pursuant to Section 13.7; (v) Hiring any employees of the Company or accepting secondments of employees; (w) After the ** in ** becomes operational, and thereafter to the extent there is available **, elections by the Company to ** to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement; (x) Any action by the Company that would cause it to be ** under the **; and (y) The entry into any agreement to effect any of the foregoing.
Appears in 2 contracts
Samples: Contribution Agreement (Markwest Energy Partners L P), Limited Liability Company Agreement (Markwest Energy Partners L P)
Approval of Members. The following matters shall require Requisite Member Approval (provided that an explicit approval of such matter in the Approved Budget or related Member resolution shall constitute a Requisite Member Approval if such approval is explicitly identified as a Requisite Member Approval):
(a) Prior to the Equalization Date to the extent not in accordance with Section 8.1, any distributions of Available Cash (including Tax Distributions);
(b) The approval of the Proposed Budgets for the Company, other than (i) the Initial Budget, which shall be deemed approved upon the execution of this Agreement and (ii) budget items associated with capital expenditures relating to the agreements set forth on Exhibit G; provided that the Company may not without the Requisite Member Approval (i) enter into any additional **, (ii) enter into any agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements set forth on Exhibit G. In connection with any such approval, the Members having the authority to approve the Proposed Budget shall give the notice required by Section 6.15(d) below;
(c) Material deviations from Approved Budgets, including (i) with respect to any Approved Budget, any modification or amendment of any ** or other ** contained therein, the satisfaction of which results in the ** pursuant to such budget, (ii) with respect to the capital expenditure budget, changes of more than ** to the **, but excluding any items prior to the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project **, and excluding any items after the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project ** and (iii) with respect to the operating expenditure budget, increases of more than $** to the ** or increases of more than $** to the ** calculated on a **; provided that, in any case, a Project, operation, venture, agreement or activity that has received Requisite Member Approval shall automatically be incorporated within the Approved Budget and any changes or deviations required to incorporate such Project, operation, venture, agreement or activity into the then current Approved Budget shall not require additional Requisite Member Approval; provided further that any additional changes or deviations associated with such Project, operation, venture, agreement or activity shall be subject to Requisite Member Approval to the extent they involve material deviations to the Approved Budget, as modified to include such new Project, operation, venture, agreement or activity, under this clause (c); provided, further, that changes in budget items listed in Section 6.15(a)(iii) through (vi) shall not be considered material deviations for purposes of this Section 6.12(c);
(d) Any material change in the Primary Business or in the Company’s 's purpose;
(e) The incurrence of Debt and the granting of Liens on the Company’s 's Property in an aggregate amount in excess of (A) $** prior to the Equalization Date and (B) $** after the Equalization Date, in each case excluding the Permitted Liens;
(f) Any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest, currency or commodity hedging arrangement entered into by the Company, including any forward sales, calls, puts, swaps and other derivative transactions, whether financially or physically settled; provided that transactions to be settled (i) within ** based on ** or (ii) ** based on the **, shall not require Requisite Member Approval;
(g) The acquisition or sale of any assets of the Company or its subsidiaries for consideration in excess of (i) $** prior to the Equalization Date and (ii) $** after the Equalization Date;
(h) Entry into, termination or renewal of, or material modification or amendment of, (i) any commercial contractual commitment reasonably expected to (A) result in expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of $**, which $** threshold shall be subject to increase by ** per year, or (C) result in the commitment of more than ** of the capacity of any Company facility **, (ii) any joint venture, partnership or other similar arrangement involving the sharing of profits of the Company or any of its subsidiaries with any third-party, (iii) any contractual commitment that limits the freedom of the Company or any of its subsidiaries to compete within the Area of Mutual Interest, (iv) any contract for the lease of real property for ** and (v) settlement agreements or other agreements related to or proposing to resolve actual or threatened litigation, which involves (A) payment of greater than $** or (B) provides for restrictions or limitations on the Company’s 's ability to operate in the form of an equitable remedy;
(i) The formation of any subsidiary of the Company;
(j) Transactions or agreements (including amendments, terminations and renewals thereof) between the Company on the one hand, and a Member or an Affiliate of a Member on the other hand, unless such transaction or agreements (including amendments, terminations and renewals thereof) (i) has been approved by the other Members that are not a party to, or Affiliates of a Party to, such transaction or agreement and whose consent is required pursuant to this Section or (ii) is identified on Exhibit H, all of which are hereby approved by the Members;
(k) The sale, exchange or other disposition of all, or substantially all, of the Company’s 's assets in one transaction or a series of related transactions,
(l) Any merger into or with or consolidation with any other entity (i) in which the interests in the Company will be exchanged for a security with different rights, preferences or privileges or (ii) pursuant to which the Members will own less than 50% of the voting securities of the surviving entity;
(m) Any repurchase by the Company of Interests in the Company or any equity interests in any of its subsidiaries;
(n) Prior to the Equalization Date, other than in accordance with the obligations of the Members pursuant to Section 4.1, any efforts by the Company to raise additional capital, including the issuance of additional Interests or options to acquire Interests or any equity interests or options to acquire equity interests in any of the Company’s 's subsidiaries;
(o) The registration of any equity or debt securities of the Company or its subsidiaries under applicable United States federal or foreign securities laws or any public offering of equity or debt securities of the Company or its subsidiaries (including any Qualified Public Offering).
(p) Any declaration of bankruptcy, or the filing of a petition, or seeking protection, under any federal or state bankruptcy, insolvency or reorganization law;
(q) The dissolution of the Company or the voluntary liquidation of the Company’s 's assets;
(r) Designating a new Operator of the Company;
(s) Approval of the maintenance of reserves less than the ** as authorized in the Approved Budget or more than the ** in the Approved Budget;
(t) Permit the Company to create any Debt in favor of any Person;
(u) Distributions in-kind of any assets of the Company pursuant to Section 13.7;
(v) Hiring any employees of the Company or accepting secondments of employees;
(w) After the ** in ** becomes operational, and thereafter to the extent there is available **, elections by the Company to ** to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement;
(x) Any action by the Company that would cause it to be ** under the **; and
(y) The entry into any agreement to effect any of the foregoing.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P), Limited Liability Company Agreement (Markwest Energy Partners L P)
Approval of Members. The following matters shall require Requisite Member Approval (provided that an explicit approval of such matter in the Approved Budget or related Member resolution shall constitute a Requisite Member Approval if such approval is explicitly identified as a Requisite Member Approval):
(a) Prior to Each of the Equalization Date to Buyer and the extent not Company shall take all actions necessary in accordance with the NPCL and other applicable law, including §§ 902 and 903 of the NPCL, and their respective certificates of incorporation and by-laws, to cause special meetings (the “Special Meetings”) of their respective regular members to be duly called and held within 30 days after the earlier of (i) the date the Buyer and the Company agree on the Proxy Materials or (ii) the date on which the Company delivers to the Buyer the supplemental proxy materials referred to in Section 8.11.12(b), and in any distributions event within 75 days (unless the Buyer fails to deliver the Proxy Materials on the Proxy Materials Delivery Date (as defined in Section 1.12(a)), in which case such deadline will be postponed by one day for each day that the Buyer fails to deliver the Proxy Materials after the Proxy Materials Delivery Date) after the date of Available Cash (including Tax Distributions);this Agreement for the purpose of approving and adopting the Merger and this Agreement and all other actions contemplated by this Agreement which require approval and adoption by the respective members and on any other matter which the Buyer reasonably determines should be submitted to the respective members in order to effectuate the Merger in accordance with this Agreement. The Board of Directors of the Buyer and the Board of Governors of the Company will recommend approval and adoption of the Merger and the actions contemplated by this Agreement and in all materials submitted to the respective members of the Buyer and the Company in anticipation of their Special Meetings.
(b) The approval Notwithstanding any provision to the contrary in this Agreement, the Company may postpone the Special Meeting of its members (with a corresponding adjustment to the deadline set forth in Section 8. l(b)) solely in order to respond to, alleviate and/or defend against any of the Proposed Budgets for the Company, other than following: (i) any advice by the Initial BudgetCFTC or the staff of the CFTC or any other governmental, which shall administrative, regulatory or judicial body having jurisdiction to the effect that it is reasonably likely that modifications materially adverse to the record owners of Regular Memberships in the Company may be deemed approved upon required before subsequently approving the execution of this Agreement and transactions contemplated hereby or permitting such transactions to proceed; or (ii) budget items associated with capital expenditures relating the occurrence of any facts which may be material to the agreements set forth on Exhibit G; provided that members of the Company may not without and require the Requisite Member Approval (i) enter into any additional **, (ii) enter into any agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements set forth on Exhibit G. In connection with any such approval, the Members having the authority to approve the Proposed Budget shall give the notice required by Section 6.15(d) below;
(c) Material deviations from Approved Budgets, including (i) with respect to any Approved Budget, any modification or amendment of any ** or other ** contained therein, the satisfaction of which results in the ** pursuant distribution to such budget, members of supplemental Proxy Materials (iias defined below) with respect to the capital expenditure budget, changes of more than ** to the **, but excluding any items prior to the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project **, and excluding any items after the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project ** and (iii) with respect to the operating expenditure budget, increases of more than $** to the ** or increases of more than $** to the ** calculated on a **setting forth such information; provided that, in any casecase described in clause (i), the Special Meeting may be postponed for a Projectmaximum period not to exceed ten calendar days following the resolution of the issue, operationand in any case described in clause (ii), venturethe Special Meeting may be postponed for a maximum period not to exceed ten calendar days, agreement or activity that has received Requisite Member Approval and may be postponed not more than once, unless the Buyer and the Company agree otherwise. The Company shall automatically be incorporated within use its reasonable best efforts to avoid and minimize the Approved Budget and length of any changes or deviations required to incorporate such Project, operation, venture, agreement or activity into the then current Approved Budget shall not require additional Requisite Member Approval; provided further that postponement.
(c) Notwithstanding any additional changes or deviations associated with such Project, operation, venture, agreement or activity shall be subject to Requisite Member Approval provision to the extent they involve material deviations contrary in this Agreement, the Buyer may postpone the Special Meeting of its members (with a corresponding adjustment to the Approved Budgetdeadline set forth in Section 8.1(c)) solely in order to respond to, as modified alleviate and/or defend against the occurrence of any facts which may be material to include the members of the Buyer and require the distribution to such new Project, operation, venture, agreement or activity, under this clause (c)members of supplemental Proxy Materials setting forth such information; provided, furtherthat the Special Meeting may be postponed for a maximum period not to exceed ten calendar days, that changes in budget items listed in Section 6.15(a)(iii) through (vi) and may be postponed not more than once, unless the Buyer and the Company agree otherwise. The Buyer shall not be considered material deviations for purposes use its reasonable best efforts to avoid and minimize the length of this Section 6.12(c);any postponement.
(d) Any material change in The Buyer shall announce the Primary Business or in results of the voting at its Special Meeting prior to the Company’s purpose;
(e) The incurrence of Debt and the granting of Liens on the Company’s Property in an aggregate amount in excess of (A) $** prior to the Equalization Date and (B) $** after the Equalization Date, in each case excluding the Permitted Liens;
(f) Any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest, currency or commodity hedging arrangement entered into by the Company, including any forward sales, calls, puts, swaps and other derivative transactions, whether financially or physically settled; provided that transactions to be settled (i) within ** based on ** or (ii) ** based on the **, shall not require Requisite Member Approval;
(g) The acquisition or sale of any assets announcement of the results of voting at its Special Meeting. The Company or its subsidiaries for consideration in excess of (i) $** prior to need not announce the Equalization Date and (ii) $** after the Equalization Date;
(h) Entry into, termination or renewal of, or material modification or amendment of, (i) any commercial contractual commitment reasonably expected to (A) result in expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of $**, which $** threshold shall be subject to increase by ** per year, or (C) result in the commitment of more than ** of the capacity of any Company facility **, (ii) any joint venture, partnership or other similar arrangement involving the sharing of profits of the Company or any of its subsidiaries with any third-party, (iii) any contractual commitment that limits the freedom of the Company or any of its subsidiaries to compete within the Area of Mutual Interest, (iv) any contract for the lease of real property for ** and (v) settlement agreements or other agreements related to or proposing to resolve actual or threatened litigation, which involves (A) payment of greater than $** or (B) provides for restrictions or limitations on the Company’s ability to operate in the form of an equitable remedy;
(i) The formation of any subsidiary of the Company;
(j) Transactions or agreements (including amendments, terminations and renewals thereof) between the Company on the one hand, and a Member or an Affiliate of a Member on the other hand, unless such transaction or agreements (including amendments, terminations and renewals thereof) (i) has been approved by the other Members that are not a party to, or Affiliates of a Party to, such transaction or agreement and whose consent is required pursuant to this Section or (ii) is identified on Exhibit H, all of which are hereby approved by the Members;
(k) The sale, exchange or other disposition of all, or substantially all, of the Company’s assets in one transaction or a series of related transactions,
(l) Any merger into or with or consolidation with any other entity (i) in which the interests in the Company will be exchanged for a security with different rights, preferences or privileges or (ii) pursuant to which the Members will own less than 50% results of the voting securities of at its Special Meeting if the surviving entity;
(m) Any repurchase by Buyer’s members fail to approve the Company of Interests in the Company or any equity interests in any of its subsidiaries;
(n) Prior to the Equalization Date, other than in accordance with the obligations of the Members pursuant to Section 4.1, any efforts by the Company to raise additional capital, including the issuance of additional Interests or options to acquire Interests or any equity interests or options to acquire equity interests in any of the Company’s subsidiaries;
(o) The registration of any equity or debt securities of the Company or its subsidiaries under applicable United States federal or foreign securities laws or any public offering of equity or debt securities of the Company or its subsidiaries (including any Qualified Public Offering)Merger.
(p) Any declaration of bankruptcy, or the filing of a petition, or seeking protection, under any federal or state bankruptcy, insolvency or reorganization law;
(q) The dissolution of the Company or the voluntary liquidation of the Company’s assets;
(r) Designating a new Operator of the Company;
(s) Approval of the maintenance of reserves less than the ** as authorized in the Approved Budget or more than the ** in the Approved Budget;
(t) Permit the Company to create any Debt in favor of any Person;
(u) Distributions in-kind of any assets of the Company pursuant to Section 13.7;
(v) Hiring any employees of the Company or accepting secondments of employees;
(w) After the ** in ** becomes operational, and thereafter to the extent there is available **, elections by the Company to ** to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement;
(x) Any action by the Company that would cause it to be ** under the **; and
(y) The entry into any agreement to effect any of the foregoing.
Appears in 1 contract
Approval of Members. The following matters shall require Requisite Member Approval (provided that that, in addition to other exceptions described in this Section 6.12, an explicit approval of such matter in the Approved Budget or related Member resolution shall constitute a Requisite Member Approval if such approval is explicitly identified as a Requisite Member Approval):
(a) Prior to the First Equalization Date to the extent not in accordance with Section 8.1Date, any distributions of Available Cash (including Tax Distributionsthat are not determined by the Operator and made in accordance with Section 6.11(b), Section 8.1 or Section 8.4;
(b) The approval of the Proposed Budgets for the Company, other than (i) the Initial Current Budget, which shall be deemed approved upon the execution of this Agreement and (ii) budget items associated with capital expenditures relating to the agreements set forth on Exhibit G; provided that the Company may not without the Requisite Member Approval (i) enter into any additional **, (ii) enter into any agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements set forth on Exhibit G. In connection with any such approval, the Members having the authority to approve the Proposed Budget shall give the notice required by Section 6.15(d) below;
(c) Material deviations from Approved Budgets, including Budgets involving (i) with respect to any Approved Budget, any modification or amendment of any ** or other ** contained therein, the satisfaction of which results in the ** pursuant to such budget, (ii) with respect to the capital expenditure budget, changes of more than ** to the **, but excluding any items prior to the Equalization Date items, other than as provided in Section 6.12(j), requiring aggregate capital expenditures of less than $** associated with a Project **, and excluding any items after the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project ** and (iii) with respect to the operating expenditure budget, increases of more than $** to the ** or increases of more than $** to the ** calculated on a **; provided provided, that, in any case, a Project, operation, venture, agreement or activity that has received Requisite Member Approval shall automatically be incorporated within the Approved Budget and any changes or deviations required to incorporate such Project, operation, venture, agreement or activity into the then current Approved Budget shall not require additional Requisite Member Approval; provided further further, that any additional changes or deviations associated with such Project, operation, venture, agreement or activity shall be subject to Requisite Member Approval to the extent they involve material deviations to the Approved Budget, as modified to include such new Project, operation, venture, agreement or activity, under this clause (c); provided, further, that changes in budget items listed in Section 6.15(a)(iii) through (vi) shall not be considered material deviations for purposes of this Section 6.12(c); and provided, further, that **;
(d) Any material change in the Primary Business or in the Company’s purpose;
(e) The Subject to Section 6.12(j), the incurrence of Debt and the granting of Liens on the Company’s Property in an aggregate amount in excess of (A) $** prior to the Equalization Date and (B) $** after the Equalization Date, in each case excluding the Permitted Liens; provided, that, with respect to this Section 6.12(e), no Requisite Member Approval is required if (x) the applicable Debt and/or granting of Liens on the Company’s Property is associated with an Approved Budget and (y) the terms of such Debt and/or Liens are materially consistent with the terms contained in any Approved Budget;
(f) Any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest, currency or commodity hedging arrangement entered into by the Company, including any forward sales, calls, puts, swaps and other derivative transactions, whether financially or physically settled; provided provided, that transactions to be settled (i) within ** based on ** or (ii) ** based on the **, shall not require Requisite Member Approval; provided further, that, with respect to this Section 6.12(f), if Requisite Member Approval has been obtained to preapprove transactions or agreements identified in this Section 6.12(f) meeting certain requirements, then no additional Requisite Member Approval shall be required to enter into such transactions or agreements that satisfy such requirements; and provided further, that this Section 6.12(f) shall not apply to operational balancing agreements entered into in the ordinary course of the Company’s business with downstream gas or natural gas liquids pipelines;
(g) The Subject to Section 6.12(j), the acquisition or sale of any assets of the Company or its subsidiaries for consideration in excess of (i) $** prior to the First Equalization Date and (ii) $** after the First Equalization Date;; provided, that, with respect to this Section 6.12(g), no Requisite Member Approval is required if (x) the applicable acquisition or sale is associated with an Approved Budget and (y) the terms of such acquisition or sale are materially consistent with the terms contained in any Approved Budget.
(h) Entry into, termination or renewal of, or material modification or amendment of, (i) any commercial contractual commitment reasonably expected to (A) result in expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of $**, which $** threshold shall be subject to increase by ** per year, or (C) result in the commitment of more than ** of the capacity of any Company facility **, (ii) any joint venture, partnership or other similar arrangement involving the sharing of profits of the Company or any of its subsidiaries with any third-party, (iii) any contractual commitment that limits the freedom of the Company or any of its subsidiaries to compete within the Area of Mutual Interest, (iv) any contract for the lease of real property for greater than ** and (v) settlement agreements or other agreements related to or proposing to resolve actual or threatened litigation, which involves (A) payment of greater than $** or (B) provides for restrictions or limitations on the Company’s ability to operate in the form of an equitable remedy; provided, that, with respect to Section 6.12(h)(i), no Requisite Member Approval is required if (x) the applicable commercial contract is associated with an Approved Budget and (y) the terms of such commercial contract are materially consistent with the economic terms contained in any Approved Budget;
(i) The formation of any subsidiary of the Company;
(j) Transactions or agreements (including amendments, terminations and renewals thereof) between the Company on the one hand, and a Member or an Affiliate of a Member on the other hand, unless such transaction or agreements agreement (including amendments, terminations and renewals thereof) (i) has been approved by the other Members that are not a party to, or Affiliates of a Party to, such transaction or agreement and whose consent is required pursuant to this Section or Section, (ii) is identified on Exhibit HC, all of which are hereby approved by the Members, (iii) is entered into in the ordinary course of business on terms comparable to arm’s length transactions between unrelated third parties for **, or (iv) consists of the purchase or sale of pipeline, equipment, parts and other inventory to or by the Company or its Subsidiaries from or to Affiliates of MWE (each, an “Affiliate Inventory Transaction”) so long as ** such Affiliate Inventory Transaction is on terms comparable to arm’s length transactions between unrelated third parties **;
(k) The sale, exchange or other disposition of all, or substantially all, of the Company’s assets in one transaction or a series of related transactions,
(l) Any merger into or with or consolidation with any other entity (i) in which the interests in the Company will be exchanged for a security with different rights, preferences or privileges or (ii) pursuant to which the Members will own less than 50% of the voting securities of the surviving entity;
(m) Any repurchase by the Company of Interests in the Company or any equity interests in any of its subsidiaries;
(n) Prior to the First Equalization Date, other than in accordance with the obligations or rights of the Members pursuant to Section 4.14.1 and other than as set forth in Section 5.3, any efforts by the Company to raise additional capital, including the issuance of additional Interests or options to acquire Interests or any equity interests or options to acquire equity interests in any of the Company’s subsidiaries;
(o) The registration of any equity or debt securities of the Company or its subsidiaries under applicable United States federal or foreign securities laws or any public offering of equity or debt securities of the Company or its subsidiaries (including any Qualified Public Offering).
(p) Any declaration of bankruptcy, or the filing of a petition, or seeking protection, under any federal or state bankruptcy, insolvency or reorganization law;
(q) The dissolution of the Company or the voluntary liquidation of the Company’s assets;
(r) Designating a new Operator of the Company, except as otherwise provided under Section 4.9(c)(iii);
(s) Approval of the maintenance of reserves less than the ** as authorized in the Approved Budget or more than the ** in the Approved Budget;
(t) Permit Permitting the Company to create any Debt in favor of any Person;
(u) Distributions in-kind of any assets of the Company pursuant to Section 13.7;
(v) Hiring any employees of the Company or accepting secondments of employees;
(w) After the ** in ** becomes operational, and thereafter to the extent there is available **, elections by the Company to ** to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement;
(x) Any action or inaction by the Company that would cause it to be ** under *;
(x) Any other action or inaction by the **Company that expressly requires Requisite Member Approval in accordance with the terms of this Agreement; and
(y) The entry into any agreement to effect any of the foregoing. Notwithstanding anything to the contrary in this Agreement, the Operator shall have the unilateral right, without the approval of the Company, any other Member or any other Person, to either (i) contribute capital to the Company for the purpose of causing the Company to satisfy any payment obligation under any instrument of indebtedness or other agreement or (ii) directly pay any such amount on behalf of the Company in satisfaction of any such obligation; provided that MWE would not receive any additional equity interests, increases in its Account Balance or other similar credit for such a contribution or payment. For the avoidance of doubt, **, such that any of the foregoing actions that **; provided that, if ** Each Manager, Member, Affiliate of a Member or other representative of the Company acting in any capacity on behalf of the Company **.
Appears in 1 contract
Approval of Members. The following matters shall require Requisite Member Approval (provided that that, in addition to other exceptions described in this Section 6.12, an explicit approval of such matter in the Approved Budget or related Member resolution shall constitute a Requisite Member Approval if such approval is explicitly identified as a Requisite Member Approval):
(a) Prior to the First Equalization Date to the extent not in accordance with Section 8.1, any distributions of Available Cash (including Tax Distributions);
(b) The approval of the Proposed Budgets for the Company, other than (i) the Initial Budget, which shall be deemed approved upon the execution of this Agreement and (ii) budget items associated with capital expenditures relating to the agreements set forth on Exhibit G; provided that the Company may not without the Requisite Member Approval (i) enter into any additional **, (ii) enter into any agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements set forth on Exhibit G. In connection with any such approval, the Members having the authority to approve the Proposed Budget shall give the notice required by Section 6.15(d) belowAgreement;
(c) Material deviations from Approved Budgets, including (i) with respect to any Approved Budget, any modification or amendment of any ** or other ** contained therein, the satisfaction of which results in the ** pursuant to such budget, (ii) with respect to the capital expenditure budget, changes of more than ** to the **, but excluding any items prior to the Equalization Date items, other than as provided in Section 6.12(j), requiring aggregate capital expenditures of less than $** associated with a Project **, and excluding any items after the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project ** and (iii) with respect to the operating expenditure budget, increases of more than $** to the ** or increases of more than $** to the ** calculated on a **; provided provided, that, in any case, a Project, operation, venture, agreement or activity that has received Requisite Member Approval shall automatically be incorporated within the Approved Budget and any changes or deviations required to incorporate such Project, operation, venture, agreement or activity into the then current Approved Budget shall not require additional Requisite Member Approval; provided further further, that any additional changes or deviations associated with such Project, operation, venture, agreement or activity shall be subject to Requisite Member Approval to the extent they involve material deviations to the Approved Budget, as modified to include such new Project, operation, venture, agreement or activity, under this clause (c); provided, further, that changes in budget items listed in Section 6.15(a)(iii6.16(a)(iii) through (vi) shall not be considered material deviations for purposes of this Section 6.12(c);
(d) Any material change in the Primary Business or in the Company’s 's purpose;
(e) The Subject to Section 6.12(j), the incurrence of Debt and the granting of Liens on the Company’s 's Property in an aggregate amount in excess of (A) $** prior to the Equalization Date and (B) $** after the Equalization Date, in each case excluding the Permitted Liens; provided, that, with respect to this Section 6.12(e), no Requisite Member Approval is required if (x) the applicable Debt and/or granting of Liens on the Company's Property is associated with an Approved Budget and (y) the terms of such Debt and/or Liens are materially consistent with the terms contained in any Approved Budget;
(f) Any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest, currency or commodity hedging arrangement entered into by the Company, including any forward sales, calls, puts, swaps and other derivative transactions, whether financially or physically settled; provided provided, that transactions to be settled (i) within ** based on ** or (ii) ** based on the **, shall not require Requisite Member Approval; provided further, that, with respect to this Section 6.12(f), if Requisite Member Approval has been obtained to preapprove transactions or agreements identified in this Section 6.12(f) meeting certain requirements, then no additional Requisite Member Approval shall be required to enter into such transactions or agreements that satisfy such requirements;
(g) The Subject to Section 6.12(j), the acquisition or sale of any assets of the Company or its subsidiaries for consideration in excess of (i) $** prior to the First Equalization Date and (ii) $** after the First Equalization Date;; provided, that, with respect to this Section 6.12(g), no Requisite Member Approval is required if (x) the applicable acquisition or sale is associated with an Approved Budget and (y) the terms of such acquisition or sale are materially consistent with the terms contained in any Approved Budget.
(h) Entry into, termination or renewal of, or material modification or amendment of, (i) any commercial contractual commitment reasonably expected to (A) result in expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of $**, which $** threshold shall be subject to increase by ** per year, or (C) result in the commitment of more than ** of the capacity of any Company facility **, (ii) ** any joint venture, partnership or other similar arrangement involving the sharing of profits of the Company or any of its subsidiaries with any third-party, (iii) any contractual commitment that limits the freedom of the Company or any of its subsidiaries to compete within the Area of Mutual Interest, (iv) any contract for the lease of real property for greater than ** and (v) settlement agreements or other agreements related to or proposing to resolve actual or threatened litigation, which involves (A) payment of greater than $** or (B) provides for restrictions or limitations on the Company’s 's ability to operate in the form of an equitable remedy; provided, that, with respect to Section 6.12(h)(i), no Requisite Member Approval is required if (x) the applicable commercial contract is associated with an Approved Budget and (y) the terms of such commercial contract are materially consistent with the economic terms contained in any Approved Budget;
(i) The formation of any subsidiary of the Company;
(j) Transactions or agreements (including amendments, terminations and renewals thereof) between the Company on the one hand, and a Member or an Affiliate of a Member on the other hand, unless such transaction or agreements agreement (including amendments, terminations and renewals thereof) (i) has been approved by the other Members that are not a party to, or Affiliates of a Party to, such transaction or agreement and whose consent is required pursuant to this Section or (ii) is identified on Exhibit HE, all of which are hereby approved by the MembersMembers or (iii) is entered into in the ordinary course of business on terms comparable to arm's length transactions between unrelated third parties for **;
(k) The sale, exchange or other disposition of all, or substantially all, of the Company’s 's assets in one transaction or a series of related transactions,
(l) Any merger into or with or consolidation with any other entity (i) in which the interests in the Company will be exchanged for a security with different rights, preferences or privileges or (ii) pursuant to which the Members will own less than 50% of the voting securities of the surviving entity;
(m) Any repurchase by the Company of Interests in the Company or any equity interests in any of its subsidiaries;
(n) Prior to the First Equalization Date, other than in accordance with the obligations or rights of the Members pursuant to Section 4.1, any efforts by the Company to raise additional capital, including the issuance of additional Interests or options to acquire Interests or any equity interests or options to acquire equity interests in any of the Company’s 's subsidiaries;
(o) The registration of any equity or debt securities of the Company or its subsidiaries under applicable United States federal or foreign securities laws or any public offering of equity or debt securities of the Company or its subsidiaries (including any Qualified Public Offering).
(p) Any declaration of bankruptcy, or the filing of a petition, or seeking protection, under any federal or state bankruptcy, insolvency or reorganization law;
(q) The dissolution of the Company or the voluntary liquidation of the Company’s 's assets;
(r) Designating a new Operator of the Company;
(s) Approval of the maintenance of reserves less than the ** as authorized in the Approved Budget or more than the ** in the Approved Budget;
(t) Permit Permitting the Company to create any Debt in favor of any Person;
(u) Distributions in-kind of any assets of the Company pursuant to Section 13.7;
(v) Hiring any employees of the Company or accepting secondments of employees;
(w) After the ** in ** becomes operational, and thereafter to the extent there is available **, elections by the Company to ** to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement;
(x) Any action by the Company that would cause it to be ** under the **; and
(yx) The entry into any agreement to effect any of the foregoing. Notwithstanding anything to the contrary in this Agreement, MWE Operating Company shall have the unilateral right, without the approval of the Company, any other Member or any other Person, to either (i) contribute capital to the Company for the purpose of causing the Company to satisfy any payment obligation under any instrument of indebtedness or other agreement or (ii) directly pay any such amount on behalf of the Company in satisfaction of any such obligation; provided that MWE would not receive any additional equity interests, increases in its Investment Balance or other similar credit for such a contribution or payment.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P)
Approval of Members. The following matters shall require Requisite Member Approval (provided that that, in addition to other exceptions described in this Section 6.12, an explicit approval of such matter in the Approved Budget or related Member resolution shall constitute a Requisite Member Approval if such approval is explicitly identified as a Requisite Member Approval):
(a) Prior to the First Equalization Date to the extent not in accordance with Section 8.1Date, any distributions of Available Cash (including Tax Distributionsthat are not determined by the Operator and made in accordance with Section 6.11(b), Section 8.1 or Section 8.4;
(b) The approval of the Proposed Budgets for the Company, other than (i) the Initial Current Budget, which shall be deemed approved upon the execution of this Agreement and (ii) budget items associated with capital expenditures relating to the agreements set forth on Exhibit G; provided that the Company may not without the Requisite Member Approval (i) enter into any additional **, (ii) enter into any agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements set forth on Exhibit G. In connection with any such approval, the Members having the authority to approve the Proposed Budget shall give the notice required by Section 6.15(d) below;
(c) Material deviations from Approved Budgets, including (i) with respect to any Approved Budget, any modification or amendment of any ** or other ** contained therein, the satisfaction of which results in the ** pursuant to such budget, (ii) with respect to the capital expenditure budget, changes of more than ** to the **, but excluding any items prior to the Equalization Date items, other than as provided in Section 6.12(j), requiring aggregate capital expenditures of less than $** associated with a Project **, and excluding any items after the Equalization Date requiring aggregate capital expenditures of less than $** associated with a Project ** and (iii) with respect to the operating expenditure budget, increases of more than $** to the ** or increases of more than $** to the ** calculated on a **; provided provided, that, in any case, a Project, operation, venture, agreement or activity that has received Requisite Member Approval shall automatically be incorporated within the Approved Budget and any changes or deviations required to incorporate such Project, operation, venture, agreement or activity into the then current Approved Budget shall not require additional Requisite Member Approval; provided further further, that any additional changes or deviations associated with such Project, operation, venture, agreement or activity shall be subject to Requisite Member Approval to the extent they involve material deviations to the Approved Budget, as modified to include such new Project, operation, venture, agreement or activity, under this clause (c); provided, further, that changes in budget items listed in Section 6.15(a)(iii6.15(a) through (via) shall not be considered material deviations for purposes of this Section 6.12(c); and provided, further, that **;
(d) Any material change in the Primary Business or in the Company’s purpose;
(e) The Subject to Section 6.12(j), the incurrence of Debt and the granting of Liens on the Company’s Property in an aggregate amount in excess of (A) $** prior to the Equalization Date and (B) $** after the Equalization Date, in each case excluding the Permitted Liens; provided, that, with respect to this Section 6.12(e), no Requisite Member Approval is required if (x) the applicable Debt and/or granting of Liens on the Company’s Property is associated with an Approved Budget and (y) the terms of such Debt and/or Liens are materially consistent with the terms contained in any Approved Budget;
(f) Any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest, currency or commodity hedging arrangement entered into by the Company, including any forward sales, calls, puts, swaps and other derivative transactions, whether financially or physically settled; provided provided, that transactions to be settled (i) within ** based on ** or (ii) ** based on the **, shall not require Requisite Member Approval; provided further, that, with respect to this Section 6.12(f), if Requisite Member Approval has been obtained to preapprove transactions or agreements identified in this Section 6.12(f) meeting certain requirements, then no additional Requisite Member Approval shall be required to enter into such transactions or agreements that satisfy such requirements;
(g) The Subject to Section 6.12(j), the acquisition or sale of any assets of the Company or its subsidiaries for consideration in excess of (i) $** prior to the First Equalization Date and (ii) $** after the First Equalization Date;; provided, that, with respect to this Section 6.12(g), no Requisite Member Approval is required if (x) the applicable acquisition or sale is associated with an Approved Budget and (y) the terms of such acquisition or sale are materially consistent with the terms contained in any Approved Budget.
(h) Entry into, termination or renewal of, or material modification or amendment of, (i) any commercial contractual commitment reasonably expected to (A) result in expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of $**, which $** threshold shall be subject to increase by ** per year, or (C) result in the commitment of more than ** of the capacity of any Company facility **, (ii) any joint venture, partnership or other similar arrangement involving the sharing of profits of the Company or any of its subsidiaries with any third-party, (iii) any contractual commitment that limits the freedom of the Company or any of its subsidiaries to compete within the Area of Mutual Interest, (iv) any contract for the lease of real property for greater than $** and (v) settlement agreements or other agreements related to or proposing to resolve actual or threatened litigation, which involves (A) payment of greater than $** or (B) provides for restrictions or limitations on the Company’s ability to operate in the form of an equitable remedy; provided, that, with respect to Error! Reference source not found., no Requisite Member Approval is required if (x) the applicable commercial contract is associated with an Approved Budget and (y) the terms of such commercial contract are materially consistent with the economic terms contained in any Approved Budget;
(i) The formation of any subsidiary of the Company;
(j) Transactions or agreements (including amendments, terminations and renewals thereof) between the Company on the one hand, and a Member or an Affiliate of a Member on the other hand, unless such transaction or agreements agreement (including amendments, terminations and renewals thereof) (i) has been approved by the other Members that are not a party to, or Affiliates of a Party to, such transaction or agreement and whose consent is required pursuant to this Section or (ii) is identified on Exhibit HD, all of which are hereby approved by the MembersMembers or (iii) is entered into in the ordinary course of business on terms comparable to arm’s length transactions between unrelated third parties for **;
(k) The sale, exchange or other disposition of all, or substantially all, of the Company’s assets in one transaction or a series of related transactions,
(l) Any merger into or with or consolidation with any other entity (i) in which the interests in the Company will be exchanged for a security with different rights, preferences or privileges or (ii) pursuant to which the Members will own less than 50% of the voting securities of the surviving entity;
(m) Any repurchase by the Company of Interests in the Company or any equity interests in any of its subsidiaries;
(n) Prior to the First Equalization Date, other than in accordance with the obligations or rights of the Members pursuant to Section 4.1, any efforts by the Company to raise additional capital, including the issuance of additional Interests or options to acquire Interests or any equity interests or options to acquire equity interests in any of the Company’s subsidiaries;
(o) The registration of any equity or debt securities of the Company or its subsidiaries under applicable United States federal or foreign securities laws or any public offering of equity or debt securities of the Company or its subsidiaries (including any Qualified Public Offering).
(p) Any declaration of bankruptcy, or the filing of a petition, or seeking protection, under any federal or state bankruptcy, insolvency or reorganization law;
(q) The dissolution of the Company or the voluntary liquidation of the Company’s assets;
(r) Designating a new Operator of the Company, except as otherwise provided under Section 4.9(c)(iii);
(s) Approval of the maintenance of reserves less than the ** as authorized in the Approved Budget or more than the ** in the Approved Budget;
(t) Permit Permitting the Company to create any Debt in favor of any Person;
(u) Distributions in-kind of any assets of the Company pursuant to Section 13.7;
(v) Hiring any employees of the Company or accepting secondments of employees;
(w) After the ** in ** becomes operational, and thereafter to the extent there is available **, elections by the Company to ** to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement;
(x) Any action by the Company that would cause it to be ** under the **; and
(yx) The entry into any agreement to effect any of the foregoing. Notwithstanding anything to the contrary in this Agreement, the Operator shall have the unilateral right, without the approval of the Company, any other Member or any other Person, to either (i) contribute capital to the Company for the purpose of causing the Company to satisfy any payment obligation under any instrument of indebtedness or other agreement or (ii) directly pay any such amount on behalf of the Company in satisfaction of any such obligation; provided that MWE would not receive any additional equity interests, increases in its Account Balance or other similar credit for such a contribution or payment.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P)
