Consent Required for Certain Actions. Without the prior written consent of the Investor for so long as it has not lost its PSP Veto Rights pursuant to Section 5 hereof, the Managing Member shall -2- not (i) vote to approve or (ii) take any of the following actions, except as expressly required by the Energy Hedge Agreement: (a) any amendment of the certificate of formation or operating agreement of the Company (or any of its Subsidiaries), other than (i) amendments required by the Operating Agreement, (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature, or (iii) amendments to give effect to the provisions of the Bipartisan Budget Act and any Treasury Regulations or other administrative pronouncements promulgated thereunder (including adoption of the “push out” election provided for by Section 6226(a) of the Code); (b) (i) the incorporation or acquisition of a Subsidiary of the Company or the Project Company or the disposition of any shares of a Subsidiary of the Company, (ii) the Company, the Project Company or a Subsidiary thereof entering into any partnership, joint venture or similar arrangement with any other Person, or (iii) the purchase of any business by the Company (or any of its Subsidiaries) or the acquisition by stock or purchase by the Company (or any of its Subsidiaries) of all or substantially all of the assets of any other Person; (c) the sale (or entry into of binding agreements to that effect), lease, exchange or other disposition of (i) all or substantially all of the assets of the Company (or any of its Subsidiaries) or (ii) assets of the Company (or any of its Subsidiaries) that would result in a material adverse effect on the power generation of the Wind Farm, or in the case of each of clauses (i) and (ii) immediately above, the granting of an option or right to such effect; (d) initiating or otherwise participating in voluntary winding-up or bankruptcy proceedings of the Company (or any of its Subsidiaries); (e) any merger, amalgamation or consolidation or the entering into of any agreement, arrangement or understanding to merge, amalgamate or consolidate, the Company (or any of its Subsidiaries) with any Person; (f) any change to the equity capital structure of the Company or any of its Subsidiaries (whether by subdivision, consolidation or reclassification), the issuance or allotment of any equity or the granting of any right, option or privilege to acquire any equity or the redemption or repurchase by the Company of any equity, other than (i) as contemplated in the Operating Agreement, including any purchase rights or equity dilutions provisions (including to fund non-discretionary expenses or amounts necessary to comply with legal obligations), or (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature; (g) the taking or institution of any proceedings for the continuance, winding-up, liquidation, reorganization or dissolution of the Company (or any of its Subsidiaries) in each case under applicable debtor relief Laws, other than as required by applicable Law; -3- (h) (i) any incurrence of any indebtedness by the Company (or any of its Subsidiaries) for borrowed money or granting of any lien or security interest by the Company (or any of its Subsidiaries) in respect of any indebtedness for borrowed money, including any financing or refinancing, that is not in existence as of the date hereof, other than (A) in the case of an amendment to or refinancing of existing indebtedness of the Company, where the amended or refinanced indebtedness would not result in a capital call or be in excess of the total amount of the existing indebtedness outstanding at the time of the refinancing that would be amended or extinguished by the refinancing plus all applicable fees, costs and expenses including breakage costs incurred in connection with such new financing or the repayment of the existing indebtedness; or (B) indebtedness of less than 2% of the book value of assets of the Project Company that is required to meet the Project Company’s obligations that cannot reasonably be expected to be met with Distributable Cash or that can be satisfied with the posting of a letter of credit or other security, (ii) making any loan for borrowed money or entering into any external borrowing arrangements where the Company (or any of its Subsidiaries) acts as a lender, (iii) the Company (or any of its Subsidiaries) entering into any derivative transaction or amending in any material manner or terminating any derivative transaction other than in connection with a transaction described in clauses (i)(A) or (i)(B) above and other than short-term energy hedge, renewable attributes and/or capacity transactions, or (iv) any incurrence of any indebtedness for borrowed money or granting of any security interest or entering into any other borrowing arrangements, in each case by the Company (or any of its Subsidiaries) with any Affiliate; (i) the repayment of any loan or advance made by an Affiliate of the Company to the Company (or any of its Subsidiaries), other than in accordance with the terms agreed upon at the time the loan or advance was made; (j) the granting of any security on the assets of the Company (or any of its Subsidiaries) other than (i) under a financing that is otherwise permitted under this Agreement, or (ii) customary liens created in the operation of the Company or the Wind Farm such as liens for trade payables, mechanics, suppliers and warehouse liens, capital leases and tax liens; (k) the guarantee or indemnification by the Company (or any of its Subsidiaries) of, or the grant of security by the Company (or any of its Subsidiaries) for, the debts or obligations of any third party, in each case other than customary guarantees or indemnities arising out of the ordinary course of business of the Company (or any of its Subsidiaries); (l) the guarantee or indemnification by the Company (or any of its Subsidiaries) of, or the grant of security by the Company (or any of its Subsidiaries) for, the debts or obligations of any Affiliate thereof; (m) any change to the distribution policy of the Company (or any of its Subsidiaries) reflected in the Operating Agreement as of the date of the closing under the Purchase and Sale -4- Agreement, other than any changes to allocations and distributions mandated from time to time by the Operating Agreement; (n) the Company (or any of its Subsidiaries) entering into (on or after the date of this Agreement), causing the early termination of, or making material amendments to (i) any Material Contract, (ii) applicable third-party partnership agreements (including the Operating Agreement), or (iii) any contracts with the Seller or its Affiliates, including the Management, Operation and Maintenance Services Agreement and Project Administration Agreement, except (x) in each case for new contracts, terminations and/or amendments that are required by Law or to avoid a material default by the Company (or any of its Subsidiaries) or otherwise preserve material rights of the Company (or any of its Subsidiaries) under such agreements and (y) in the case of clause (ii), as is required to give effect to the exercise of options or rights under such agreements. Notwithstanding the foregoing, with respect to any new contracts that are proposed to be entered between the Company (or any of its Subsidiaries), on the one hand, and the Seller or its Affiliates, on the other, the Managing Member shall provide written notice to the Investor setting out details of the scope of services to be provided by the Seller or such other Affiliate thereof under such new contract and the corresponding fees payable to the Seller or such other Affiliate thereunder. Within thirty (30) calendar days of such a notice, the Investor may object to such new contract on the ground that either the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope). If the Investor objects prior to the expiration of such thirty (30) day notice period, then the matter shall be referred to a dispute resolution process (such process to include mediation through progressively senior levels of each of the Investor and the Managing Member following which the matter shall be referred to an independent third party expert reasonably selected by the Investor, who shall determine if the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope)). If the Investor does not timely object to the proposed new contract, or if the independent third party expert so determines that the proposed scope of services is reasonable and the fees payable are within the range of “market fees”, then the Managing Member shall be permitted to cause the applicable new contract to be so entered into; (o) the approval by the Company (or any of its Subsidiaries) of any capital expenditure or series of related capital expenditures in excess of 2% of the book value of the assets of the Project Company, other than as necessary to comply with applicable Law, address a safety emergency or casualty or maintain an insurance policy relating to the Project Company; (p) the initiation or settlement by the Company (or its Subsidiaries) of any material litigation or material administrative proceeding; (q) appointment and removal/replacement of auditors of the Company (or any of its Subsidiaries), other than when such appointment, removal or replacement of auditors is designed to have the auditor of the Company be the same as the Seller’s auditor; -5- (r) adoption of and changes to employee benefits arrangements or schemes of the Company (or any of its Subsidiaries), except for non-material changes which are reasonable for a Person (other than a natural person) of the same size and nature as the Company; (s) the creation, modification or termination by the Company (or any of its Subsidiaries) of any plan for the purchase of equity or other securities through the award of options to purchase equity, including a stock option plan or similar program; (t) any change to the accounting methods of the Company (or any of its Subsidiaries) or to the fiscal year-end, other than (i) when such change to the accounting methods of the Company (or any of its Subsidiaries) or to the fiscal year-end is designed to conform to the accounting methods or fiscal year-end of the Seller or (ii) to comply with GAAP; (u) any significant change in the scope or nature of the business of the Company (or any of its Subsidiaries) and the entering into any contract, agreement or commitment that would result in a significant change in the scope or nature of the business of the Company (or any of its Subsidiaries); (v) seeking to launch an initial public offering or the admission to trading on a recognized stock exchange of the whole or any part of the Company’s issued securities (or those of any of its Subsidiaries); or (w) filing of Internal Revenue Service Form 8832 (or an alternate or successor form) to elect to have the Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3, or take any affirmative action to have the Company be treated for federal income tax purposes other than as a partnership, except, in each case, as may be required by Law. 3.
Appears in 2 contracts
Samples: Voting Agreement, Voting Agreement
Consent Required for Certain Actions. Without Any provision of this Agreement (other than Section 6.04(b) and Section 6.07(b)(2), (c)(2) and (d)(2)) to the contrary notwithstanding, without the prior written consent of the Investor for so long as it has not lost its PSP Veto Rights pursuant to Section 5 hereofInvestor, the Managing Member shall -2- not (i) vote to approve or (ii) take any of the following actionsnot, except as expressly required by the Energy Hedge Power Purchase Agreement: , take any action to cause the Company, Holdings or the Project Company (or any of their respective Subsidiaries) to, or cast its vote on the behalf of the Company as a Class B member or managing member of Holdings in any matter coming up for a vote under Holdings Operating Agreement that would cause Holdings or the Project Company (or any of their respective Subsidiaries) to, take any of the following actions:
(a) any amendment of the certificate of formation or operating agreement of the Company or Holdings (or any of its their respective Subsidiaries), other than (i) amendments as required by the Holdings Operating Agreement, (ii) amendments that are required by Law or Law, are of a clerical or “housekeeping” nature, or are contemplated by this Agreement (including Section 7.01(b)) or (iii) in the case of the Holdings Operating Agreement, amendments to give effect to the provisions of the Bipartisan Budget Act and any Treasury Regulations or other administrative pronouncements promulgated thereunder (including adoption of the “push push-out” election provided for by Section 6226(a) of the Code); ;
(b)
) (i) the incorporation or acquisition of a Subsidiary of the Company or the Project Company Holdings (or any of their respective Subsidiaries) or the disposition of any shares of a Subsidiary of the CompanyCompany or Holdings, (ii) the Company, the Project Company or a Subsidiary thereof Holdings (or any of their respective Subsidiaries) entering into any partnership, joint venture or similar arrangement with any other Person, or (iii) the purchase of any business by the Company or Holdings (or any of its their respective Subsidiaries) or the acquisition by stock or purchase by the Company or Holdings (or any of its their respective Subsidiaries) of all or substantially all of the assets of any other Person; ;
(c) the sale (or entry into of binding agreements to that effect), lease, exchange or other disposition of (i) all or substantially all of the assets of the Company or Holdings (or any of its their respective Subsidiaries) or (ii) assets of the Company or Holdings (or any of its their respective Subsidiaries) that would result in a material adverse effect on the power generation of the Wind Farm, or or, in the case of each of clauses (i) and (ii) immediately above, the granting of an option or right to such effect; ;
(d) initiating or otherwise participating in voluntary winding-up or bankruptcy proceedings of the Company or Holdings (or any of its their respective Subsidiaries); ;
(e) any merger, amalgamation or consolidation or the entering into of any agreement, arrangement or understanding to merge, amalgamate or consolidate, the Company or Holdings (or any of its their respective Subsidiaries) with any Person; ;
(f) any change to the equity capital structure of the Company or Holdings (or any of its Subsidiaries their respective Subsidiaries) (whether by subdivision, consolidation or reclassification), the issuance or allotment of any equity or the granting of any right, option or privilege to acquire any equity or the redemption or repurchase by the Company or Holdings (or any of their respective Subsidiaries) of any equity, other than (i) as contemplated in this Agreement or the Delaware Certificate in the case of the Company, or the Holdings Operating AgreementAgreement or Holdings’ certificate of formation in the case of Holdings, in each case including any purchase rights or equity dilutions provisions (including to fund non-discretionary expenses or amounts necessary to comply with legal obligations), or (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature; ;
(g) the taking or institution of any proceedings for the continuance, winding-winding up, liquidation, reorganization or dissolution of the Company or Holdings (or any of its their respective Subsidiaries) ), in each case under applicable debtor relief Laws, other than as required by applicable Law; -3- (h) ;
(i) any incurrence of any indebtedness by the Company (Company, Holdings or any of its Subsidiaries) their respective Subsidiaries for borrowed money or granting of any lien or security interest by the Company or Holdings (or any of its their respective Subsidiaries) in respect of any indebtedness for borrowed money, including any financing or refinancing, that is not in existence as of the date hereof, hereof other than (A) in the case of an amendment to or refinancing of existing indebtedness of the CompanyCompany or Holdings, where the amended or refinanced indebtedness would not result in a capital call or be in excess of the total amount of the existing indebtedness outstanding at the time of the refinancing that would be amended or extinguished by the refinancing plus all applicable fees, costs and expenses including breakage costs incurred in connection with such new financing or the repayment of the existing indebtedness; or (B) indebtedness of less than 2% of the book value of assets of the Project Company that is required to meet the Project Company’s obligations that cannot reasonably be expected to be met with Distributable Cash (as such term is defined in the Holdings Operating Agreement) or that can be satisfied with the posting of a letter of credit or other security, (ii) making any loan for borrowed money or entering into any external borrowing arrangements where the Company or Holdings (or any of its their respective Subsidiaries) acts as a lender, (iii) the Company or Holdings (or any of its their respective Subsidiaries) entering into any derivative transaction or amending in any material manner or terminating any derivative transaction other than in connection with a transaction described in clauses (i)(A) or (i)(B) above and other than short-term energy hedge, renewable attributes and/or capacity transactions, or (iv) any incurrence of any indebtedness for borrowed money or granting of any security interest or entering into any other borrowing arrangements, in each case by the Company or Holdings (or any of its their respective Subsidiaries) with any Affiliate; Affiliated Party;
(i) the repayment of any loan or advance made by an Affiliate Affiliated Party of the Company to the Company (or any of its Subsidiaries) or of Holdings to Holdings (or any of its Subsidiaries), other than in accordance with the terms agreed upon at the time the loan or advance was made; ;
(j) the granting of any security on the assets of the Company or Holdings (or any of its their respective Subsidiaries) other than (i) under a financing that is otherwise permitted under this Agreement, or (ii) customary liens created in the operation of the Company or the Wind Farm such as liens for trade payables, mechanics, suppliers and warehouse liens, capital leases and tax liens; ;
(k) the guarantee or indemnification by the Company or Holdings (or any of its their respective Subsidiaries) of, or the grant of security by the Company or Holdings (or any of its their respective Subsidiaries) for, the debts or obligations of any third party, in each case other than customary guarantees or indemnities arising out of the ordinary course of business of the Company or Holdings (or any of its their respective Subsidiaries); ;
(l) the guarantee or indemnification by the Company or Holdings (or any of its their respective Subsidiaries) of, or the grant of security by the Company or Holdings (or any of its their respective Subsidiaries) for, the debts or obligations of any Affiliate Affiliated Party thereof; ;
(m) any change to the distribution policy of the Company (or any of its their respective Subsidiaries) reflected in the Operating Agreement as of the date of agreed by Pattern and PSP at or prior to the closing under of the Purchase and Sale -4- AgreementAgreement (or as amended by mutual agreement), or, with respect to Holdings or the Project Company, reflected in the Holdings Operating Agreement or the operating agreement of the Project Company, respectively, other than than, in the case of Holdings, any changes to allocations and distributions mandated from time to time by the Holdings Operating Agreement; ;
(n) the Company or Holdings (or any of its their respective Subsidiaries) entering into (on or after the date of this Agreement), causing the early termination of, or making material amendments to any (i) any Material Contract, (ii) applicable third-party partnership agreements (including the Holdings Operating Agreement), or (iii) any contracts contract with the Seller Pattern or its Affiliates, including the Management, Operation and Maintenance Services Agreement MOMA and Project Administration Agreement, except (x) in each case for new contracts, terminations and/or amendments that are required by applicable Law or to avoid a material default by the Company or Holdings (or any of its their respective Subsidiaries) or otherwise preserve material rights of the Company or Holdings (or any of its their respective Subsidiaries) under such agreements contract or agreement, and (y) in the case of clause (ii), ) as is required to give effect to the exercise of options or rights under such agreements. Notwithstanding the foregoing, with respect to any new contracts that are proposed to be entered between the Company or Holdings (or any of its their respective Subsidiaries), on the one hand, and the Seller Pattern or any of its Affiliates, on the other, the Managing Member shall provide written notice to the Investor setting out details of the scope of services to be provided by the Seller Pattern or such other Affiliate thereof under such new contract and the corresponding fees payable to the Seller Pattern or such other Affiliate thereunder. Within thirty (30) calendar days of such a notice, the Investor may object to such new contract on the ground that either the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope). If the Investor objects prior to the expiration of such thirty (30) day notice period, then the matter shall be referred to a dispute resolution process (such process to include mediation through progressively senior levels of each of the Investor and the Managing Member following which the matter shall be referred to an independent third party expert reasonably selected by the Investor, who shall determine if the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope)). If the Investor does not timely object to the proposed new contract, or if the independent third party expert so determines that the proposed scope of services is reasonable and the fees payable are within the range of “market fees”, then the Managing Member shall be permitted to cause the applicable new contract to be so entered into; ;
(o) the approval by the Company or Holdings (or any of its their respective Subsidiaries) of any capital expenditure or series of related capital expenditures in excess of 2% of the book value of the assets of the Project Company, Company other than as necessary to comply with applicable Law, address a safety emergency or casualty or maintain an insurance policy relating to the Project Company; ;
(p) the initiation or settlement by the Company or Holdings (or its any of their respective Subsidiaries) of any material litigation or material administrative proceeding; ;
(q) appointment and removal/replacement of auditors of the Company or Holdings (or any of its their respective Subsidiaries), other than when such appointment, removal or replacement of auditors is designed to have the auditor of the Company or Holdings be the same as the SellerPattern’s auditor; -5- ;
(r) adoption of and changes to employee benefits arrangements or schemes of the Company or Holdings (or any of its their respective Subsidiaries), except for non-material changes which are reasonable for a Person (other than a natural person) of the same size and nature as the Company; Company or Holdings;
(s) the creation, modification or termination by the Company or Holdings (or any of its their respective Subsidiaries) of any plan for the purchase of equity or other securities through the award of options to purchase equity, including a stock option plan or similar program; ;
(t) any change to the accounting methods of the Company or Holdings (or any of its their respective Subsidiaries) or to the fiscal year-end, other than (i) when such change to the accounting methods of the Company or Holdings (or any of its their respective Subsidiaries) or to the fiscal year-end is designed to conform to the accounting methods or fiscal year-end of the Seller Pattern or (ii) to comply with GAAP; ;
(u) any significant change in the scope or nature of the business of the Company or Holdings (or any of its their respective Subsidiaries) and the entering into any contract, agreement or commitment that would result in a significant change in the scope or nature of the business of the Company or Holdings (or any of its their respective Subsidiaries); or
(v) seeking to launch an initial public offering or the admission to trading on a recognized stock exchange of the whole or any part of the Company’s or Holdings’ issued securities (or those of any of its Subsidiaries); or or
(w) filing of file Internal Revenue Service Form 8832 (or an such alternate or successor form) to elect to have the Company or Holdings classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3, or take any affirmative action to have the Company or Holdings be treated for federal income tax purposes other than as a partnership, except, except in each case, as may be required by Law. 3.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Consent Required for Certain Actions. Without the prior written consent of the Investor for so long as it has not lost its PSP Veto Rights pursuant to Section 5 hereof, the Managing Member shall -2- not (i) vote to approve or (ii) take any of the following actions, except as expressly required by the Energy Hedge Agreement: :
(a) any amendment of the certificate of formation or operating agreement of the Company (or any of its Subsidiaries), other than (i) amendments required by the Operating Agreement, (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature, or (iii) amendments to give effect to the provisions of the Bipartisan Budget Act and any Treasury Regulations or other administrative pronouncements promulgated thereunder (including adoption of the “push out” election provided for by Section 6226(a) of the Code); ;
(b)
) (i) the incorporation or acquisition of a Subsidiary of the Company or the Project Company or the disposition of any shares of a Subsidiary of the Company, (ii) the Company, the Project Company or a Subsidiary thereof entering into any partnership, joint venture or similar arrangement with any other Person, or (iii) the purchase of any business by the Company (or any of its Subsidiaries) or the acquisition by stock or purchase by the Company (or any of its Subsidiaries) of all or substantially all of the assets of any other Person; ;
(c) the sale (or entry into of binding agreements to that effect), lease, exchange or other disposition of (i) all or substantially all of the assets of the Company (or any of its Subsidiaries) or (ii) assets of the Company (or any of its Subsidiaries) that would result in a material adverse effect on the power generation of the Wind Farm, or in the case of each of clauses (i) and (ii) immediately above, the granting of an option or right to such effect; ;
(d) initiating or otherwise participating in voluntary winding-up or bankruptcy proceedings of the Company (or any of its Subsidiaries); ;
(e) any merger, amalgamation or consolidation or the entering into of any agreement, arrangement or understanding to merge, amalgamate or consolidate, the Company (or any of its Subsidiaries) with any Person; ;
(f) any change to the equity capital structure of the Company or any of its Subsidiaries (whether by subdivision, consolidation or reclassification), the issuance or allotment of any equity or the granting of any right, option or privilege to acquire any equity or the redemption or repurchase by the Company of any equity, other than (i) as contemplated in the Operating Agreement, including any purchase rights or equity dilutions provisions (including to fund non-discretionary expenses or amounts necessary to comply with legal obligations), or (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature; ;
(g) the taking or institution of any proceedings for the continuance, winding-up, liquidation, reorganization or dissolution of the Company (or any of its Subsidiaries) in each case under applicable debtor relief Laws, other than as required by applicable Law; -3- (h) ;
(i) any incurrence of any indebtedness by the Company (or any of its Subsidiaries) for borrowed money or granting of any lien or security interest by the Company (or any of its Subsidiaries) in respect of any indebtedness for borrowed money, including any financing or refinancing, that is not in existence as of the date hereof, other than (A) in the case of an amendment to or refinancing of existing indebtedness of the Company, where the amended or refinanced indebtedness would not result in a capital call or be in excess of the total amount of the existing indebtedness outstanding at the time of the refinancing that would be amended or extinguished by the refinancing plus all applicable fees, costs and expenses including breakage costs incurred in connection with such new financing or the repayment of the existing indebtedness; or (B) indebtedness of less than 2% of the book value of assets of the Project Company that is required to meet the Project Company’s obligations that cannot reasonably be expected to be met with Distributable Cash or that can be satisfied with the posting of a letter of credit or other security, (ii) making any loan for borrowed money or entering into any external borrowing arrangements where the Company (or any of its Subsidiaries) acts as a lender, (iii) the Company (or any of its Subsidiaries) entering into any derivative transaction or amending in any material manner or terminating any derivative transaction other than in connection with a transaction described in clauses (i)(A) or (i)(B) above and other than short-term energy hedge, renewable attributes and/or capacity transactions, or (iv) any incurrence of any indebtedness for borrowed money or granting of any security interest or entering into any other borrowing arrangements, in each case by the Company (or any of its Subsidiaries) with any Affiliate; ;
(i) the repayment of any loan or advance made by an Affiliate of the Company to the Company (or any of its Subsidiaries), other than in accordance with the terms agreed upon at the time the loan or advance was made; ;
(j) the granting of any security on the assets of the Company (or any of its Subsidiaries) other than (i) under a financing that is otherwise permitted under this Agreement, or (ii) customary liens created in the operation of the Company or the Wind Farm such as liens for trade payables, mechanics, suppliers and warehouse liens, capital leases and tax liens; ;
(k) the guarantee or indemnification by the Company (or any of its Subsidiaries) of, or the grant of security by the Company (or any of its Subsidiaries) for, the debts or obligations of any third party, in each case other than customary guarantees or indemnities arising out of the ordinary course of business of the Company (or any of its Subsidiaries); ;
(l) the guarantee or indemnification by the Company (or any of its Subsidiaries) of, or the grant of security by the Company (or any of its Subsidiaries) for, the debts or obligations of any Affiliate thereof; ;
(m) any change to the distribution policy of the Company (or any of its Subsidiaries) reflected in the Operating Agreement as of the date of the closing under the Purchase and Sale -4- Agreement, other than any changes to allocations and distributions mandated from time to time by the Operating Agreement; ;
(n) the Company (or any of its Subsidiaries) entering into (on or after the date of this Agreement), causing the early termination of, or making material amendments to (i) any Material Contract, (ii) applicable third-party partnership agreements (including the Operating Agreement), or (iii) any contracts with the Seller or its Affiliates, including the Management, Operation and Maintenance Services Agreement and Project Administration Agreement, except (x) in each case for new contracts, terminations and/or amendments that are required by Law or to avoid a material default by the Company (or any of its Subsidiaries) or otherwise preserve material rights of the Company (or any of its Subsidiaries) under such agreements and (y) in the case of clause (ii), as is required to give effect to the exercise of options or rights under such agreements. Notwithstanding the foregoing, with respect to any new contracts that are proposed to be entered between the Company (or any of its Subsidiaries), on the one hand, and the Seller or its Affiliates, on the other, the Managing Member shall provide written notice to the Investor setting out details of the scope of services to be provided by the Seller or such other Affiliate thereof under such new contract and the corresponding fees payable to the Seller or such other Affiliate thereunder. Within thirty (30) calendar days of such a notice, the Investor may object to such new contract on the ground that either the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope). If the Investor objects prior to the expiration of such thirty (30) day notice period, then the matter shall be referred to a dispute resolution process (such process to include mediation through progressively senior levels of each of the Investor and the Managing Member following which the matter shall be referred to an independent third party expert reasonably selected by the Investor, who shall determine if the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope)). If the Investor does not timely object to the proposed new contract, or if the independent third party expert so determines that the proposed scope of services is reasonable and the fees payable are within the range of “market fees”, then the Managing Member shall be permitted to cause the applicable new contract to be so entered into; ;
(o) the approval by the Company (or any of its Subsidiaries) of any capital expenditure or series of related capital expenditures in excess of 2% of the book value of the assets of the Project Company, other than as necessary to comply with applicable Law, address a safety emergency or casualty or maintain an insurance policy relating to the Project Company; ;
(p) the initiation or settlement by the Company (or its Subsidiaries) of any material litigation or material administrative proceeding; ;
(q) appointment and removal/replacement of auditors of the Company (or any of its Subsidiaries), other than when such appointment, removal or replacement of auditors is designed to have the auditor of the Company be the same as the Seller’s auditor; -5- ;
(r) adoption of and changes to employee benefits arrangements or schemes of the Company (or any of its Subsidiaries), except for non-material changes which are reasonable for a Person (other than a natural person) of the same size and nature as the Company; ;
(s) the creation, modification or termination by the Company (or any of its Subsidiaries) of any plan for the purchase of equity or other securities through the award of options to purchase equity, including a stock option plan or similar program; ;
(t) any change to the accounting methods of the Company (or any of its Subsidiaries) or to the fiscal year-end, other than (i) when such change to the accounting methods of the Company (or any of its Subsidiaries) or to the fiscal year-end is designed to conform to the accounting methods or fiscal year-end of the Seller or (ii) to comply with GAAP; ;
(u) any significant change in the scope or nature of the business of the Company (or any of its Subsidiaries) and the entering into any contract, agreement or commitment that would result in a significant change in the scope or nature of the business of the Company (or any of its Subsidiaries); ;
(v) seeking to launch an initial public offering or the admission to trading on a recognized stock exchange of the whole or any part of the Company’s issued securities (or those of any of its Subsidiaries); or or
(w) filing of Internal Revenue Service Form 8832 (or an alternate or successor form) to elect to have the Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3, or take any affirmative action to have the Company be treated for federal income tax purposes other than as a partnership, except, in each case, as may be required by Law. 3.
Appears in 1 contract
Consent Required for Certain Actions. Without Any provision of this Agreement (other than Section 6.04(b) and Section 6.07(b)(2), (c)(2) and (d)(2)) to the contrary notwithstanding, without the prior written consent of the Investor for so long as it has not lost its PSP Veto Rights pursuant to Section 5 hereofInvestor, the Managing Member shall -2- not (i) vote to approve or (ii) take any of the following actionsnot, except as expressly required by the Energy Hedge Agreement: , take any action to cause the Company to, or cast its vote on the behalf of the Company as a Class B member of Holdings in any matter coming up for a vote under Holdings Operating Agreement that would cause Holdings or the Project Company (or any of their respective Subsidiaries) to, take any of the following actions:
(a) any amendment of the certificate of formation or operating agreement of the Company or Holdings (or any of its their respective Subsidiaries), other than (i) amendments as required by the Holdings Operating Agreement, (ii) amendments that are required by Law or Law, are of a clerical or “housekeeping” nature, or are contemplated by this Agreement (including Section 7.01(b)) or (iii) in the case of the Holdings Operating Agreement, amendments to give effect to the provisions of the Bipartisan Budget Act and any Treasury Regulations or other administrative pronouncements promulgated thereunder (including adoption of the “push out” election provided for by Section 6226(a) of the Code); (b);
(i) the incorporation or acquisition of a Subsidiary of the Company or the Project Company Holdings or the disposition of any shares of a Subsidiary of the CompanyCompany or Holdings, (ii) the Company, the Project Company or a Subsidiary thereof Holdings (or any of their respective Subsidiaries) entering into any partnership, joint venture or similar arrangement with any other Person, or (iii) the purchase of any business by the Company or Holdings (or any of its their respective Subsidiaries) or the acquisition by stock or purchase by the Company or Holdings (or any of its their respective Subsidiaries) of all or substantially all of the assets of any other Person; ;
(ca) the sale (or entry into of binding agreements to that effect), lease, exchange or other disposition of (i) all or substantially all of the assets of the Company or Holdings (or any of its their respective Subsidiaries) or (ii) assets of the Company or Holdings (or any of its their respective Subsidiaries) that would result in a material adverse effect on the power generation of the Wind Farm, or or, in the case of each of clauses (i) and (ii) immediately above, the granting of an option or right to such effect; ;
(db) initiating or otherwise participating in voluntary winding-up or bankruptcy proceedings of the Company or Holdings (or any of its their respective Subsidiaries); ;
(ec) any merger, amalgamation or consolidation or the entering into of any agreement, arrangement or understanding to merge, amalgamate or consolidate, the Company or Holdings (or any of its their respective Subsidiaries) with any Person; ;
(fd) any change to the equity capital structure of the Company or Holdings (or any of its Subsidiaries their respective Subsidiaries) (whether by subdivision, consolidation or reclassification), the issuance or allotment of any equity or the granting of any right, option or privilege to acquire any equity or the redemption or repurchase by the Company or Holdings (or any of their respective Subsidiaries) of any equity, other than (i) as contemplated in this Agreement or the Delaware Certificate in the case of the Company, or the Holdings Operating AgreementAgreement or Holdings’ certificate of formation in the case of Holdings, in each case including any purchase rights or equity dilutions provisions (including to fund non-discretionary expenses or amounts necessary to comply with legal obligations), or (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature; ;
(ge) the taking or institution of any proceedings for the continuance, winding-winding up, liquidation, reorganization or dissolution of the Company or Holdings (or any of its their respective Subsidiaries) ), in each case under applicable debtor relief Laws, other than as required by applicable Law; -3- ;
(hf) (i) any incurrence of any indebtedness by the Company (Company, Holdings or any of its Subsidiaries) their respective Subsidiaries for borrowed money or granting of any lien or security interest by the Company or Holdings (or any of its their respective Subsidiaries) in respect of any indebtedness for borrowed money, including any financing or refinancing, that is not in existence as of the date hereof, hereof other than (A) in the case of an amendment to or refinancing of existing indebtedness of the CompanyCompany or Holdings, where the amended or refinanced indebtedness would not result in a capital call or be in excess of the total amount of the existing indebtedness outstanding at the time of the refinancing that would be amended or extinguished by the refinancing plus all applicable fees, costs and expenses including breakage costs incurred in connection with such new financing or the repayment of the existing indebtedness; or (B) indebtedness of less than 2% of the book value of assets of the Project Company that is required to meet the Project Company’s obligations that cannot reasonably be expected to be met with Distributable Cash (as such term is defined in the Holdings Operating Agreement) or that can be satisfied with the posting of a letter of credit or other security, (ii) making any loan for borrowed money or entering into any external borrowing arrangements where the Company or Holdings (or any of its their respective Subsidiaries) acts as a lender, (iii) the Company or Holdings (or any of its their respective Subsidiaries) entering into any derivative transaction or amending in any material manner or terminating any derivative transaction other than in connection with a transaction described in clauses (i)(A) or (i)(B) above and other than short-term energy hedge, renewable attributes and/or capacity transactions, or (iv) any incurrence of any indebtedness for borrowed money or granting of any security interest or entering into any other borrowing arrangements, in each case by the Company or Holdings (or any of its their respective Subsidiaries) with any Affiliate; Affiliated Party;
(ig) the repayment of any loan or advance made by an Affiliate Affiliated Party of the Company to the Company (or any of its Subsidiaries) or of Holdings to Holdings (or any of its Subsidiaries), other than in accordance with the terms agreed upon at the time the loan or advance was made; ;
(jh) the granting of any security on the assets of the Company or Holdings (or any of its their respective Subsidiaries) other than (i) under a financing that is otherwise permitted under this Agreement, or (ii) customary liens created in the operation of the Company or the Wind Farm such as liens for trade payables, mechanics, suppliers and warehouse liens, capital leases and tax liens; ;
(ki) the guarantee or indemnification by the Company or Holdings (or any of its their respective Subsidiaries) of, or the grant of security by the Company or Holdings (or any of its their respective Subsidiaries) for, the debts or obligations of any third party, in each case other than customary guarantees or indemnities arising out of the ordinary course of business of the Company or Holdings (or any of its their respective Subsidiaries); ;
(lj) the guarantee or indemnification by the Company or Holdings (or any of its their respective Subsidiaries) of, or the grant of security by the Company or Holdings (or any of its their respective Subsidiaries) for, the debts or obligations of any Affiliate Affiliated Party thereof; ;
(mk) any change to the distribution policy of the Company (or any of its their respective Subsidiaries) reflected in the Operating Agreement as of the date of agreed by Pattern and PSP at or prior to the closing under of the Purchase and Sale -4- AgreementAgreement (or as amended by mutual agreement), or, with respect to Holdings or the Project Company, reflected in the Holdings Operating Agreement or the operating agreement of the Project Company, respectively, other than than, in the case of Holdings, any changes to allocations and distributions mandated from time to time by the Holdings Operating Agreement; ;
(nl) the Company or Holdings (or any of its their respective Subsidiaries) entering into (on or after the date of this Agreement), causing the early termination of, or making material amendments to any (i) any Material Contract, (ii) applicable third-party partnership agreements (including the Holdings Operating Agreement), or (iii) any contracts contract with the Seller Pattern or its Affiliates, including the Management, Operation and Maintenance Services Agreement MOMA and Project Administration Agreement, except (x) in each case for new contracts, terminations and/or amendments that are required by applicable Law or to avoid a material default by the Company or Holdings (or any of its their respective Subsidiaries) or otherwise preserve material rights of the Company or Holdings (or any of its their respective Subsidiaries) under such agreements contract or agreement and (y) in the case of clause (ii), ) as is required to give effect to the exercise of options or rights under such agreements. Notwithstanding the foregoing, with respect to any new contracts that are proposed to be entered between the Company or Holdings (or any of its their respective Subsidiaries), on the one hand, and the Seller Pattern or any of its Affiliates, on the other, the Managing Member shall provide written notice to the Investor setting out details of the scope of services to be provided by the Seller Pattern or such other Affiliate thereof under such new contract and the corresponding fees payable to the Seller Pattern or such other Affiliate thereunder. Within thirty (30) calendar days of such a notice, the Investor may object to such new contract on the ground that either the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope). If the Investor objects prior to the expiration of such thirty (30) day notice period, then the matter shall be referred to a dispute resolution process (such process to include mediation through progressively senior levels of each of the Investor and the Managing Member following which the matter shall be referred to an independent third party expert reasonably selected by the Investor, who shall determine if the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope)). If the Investor does not timely object to the proposed new contract, or if the independent third party expert so determines that the proposed scope of services is reasonable and the fees payable are within the range of “market fees”, then the Managing Member shall be permitted to cause the applicable new contract to be so entered into; ;
(om) the approval by the Company or Holdings (or any of its their respective Subsidiaries) of any capital expenditure or series of related capital expenditures in excess of 2% of the book value of the assets of the Project Company, Company other than as necessary to comply with applicable Law, address a safety emergency or casualty or maintain an insurance policy relating to the Project Company; ;
(pn) the initiation or settlement by the Company or Holdings (or its any of their respective Subsidiaries) of any material litigation or material administrative proceeding; ;
(qo) appointment and removal/replacement of auditors of the Company Holdings (or any of its their respective Subsidiaries), other than when such appointment, removal or replacement of auditors is designed to have the auditor of the Company or Holdings be the same as the SellerPattern’s auditor; -5- ;
(rp) adoption of and changes to employee benefits arrangements or schemes of the Company or Holdings (or any of its their respective Subsidiaries), except for non-material changes which are reasonable for a Person (other than a natural person) of the same size and nature as the Company; Company or Holdings;
(sq) the creation, modification or termination by the Company or Holdings (or any of its their respective Subsidiaries) of any plan for the purchase of equity or other securities through the award of options to purchase equity, including a stock option plan or similar program; ;
(tr) any change to the accounting methods of the Company or Holdings (or any of its their respective Subsidiaries) or to the fiscal year-end, other than (i) when such change to the accounting methods of the Company or Holdings (or any of its their respective Subsidiaries) or to the fiscal year-end is designed to conform to the accounting methods or fiscal year-end of the Seller Pattern or (ii) to comply with GAAP; ;
(us) any significant change in the scope or nature of the business of the Company or Holdings (or any of its their respective Subsidiaries) and the entering into any contract, agreement or commitment that would result in a significant change in the scope or nature of the business of the Company or Holdings (or any of its their respective Subsidiaries); or
(vt) seeking to launch an initial public offering or the admission to trading on a recognized stock exchange of the whole or any part of the Company’s or Holdings’ issued securities (or those of any of its Subsidiaries); or or
(wu) filing of file Internal Revenue Service Form 8832 (or an such alternate or successor form) to elect to have the Company or Holdings classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3, or take any affirmative action to have the Company or Holdings be treated for federal income tax purposes other than as a partnership, except, except in each case, as may be required by Law. 3.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Consent Required for Certain Actions. Without Any provision of this Agreement (other than Section 6.04(b) and Sections 6.07(b)(ii), (c)(ii), (d)(ii) and (e)(iii)) to the contrary notwithstanding, without the prior written consent of the Investor for so long as it has not lost its PSP Veto Rights pursuant to Section 5 hereofInvestor, the Managing Member shall -2- not (i) vote to approve or (ii) take any of the following actionsnot, except as expressly required by the Energy Hedge Power Purchase Agreement: , the LC Documents or the IRB Documents, take any action to cause the Company, Holdings, the Project Company or the IRB Purchaser (or any of their respective Subsidiaries) to, or cast its vote on the behalf of the Company as a Class B Member, Managing Member or Negotiating Member (each as defined in the Holdings Operating Agreement) of Holdings in any matter coming up for a vote under Holdings Operating Agreement that would cause Holdings, the Project Company or the IRB Purchaser (or any of their respective Subsidiaries) to, take any of the following actions:
(a) any amendment of the certificate of formation or operating agreement of the Company or Holdings (or any of its their respective Subsidiaries), other than (i) amendments as required by the Holdings Operating Agreement, (ii) amendments that are required by Law or Law, are of a clerical or “housekeeping” nature, or are contemplated by this Agreement (including Section 7.01(b)) or (iii) in the case of the Holdings Operating Agreement, (A) amendments to give effect to the provisions of the Bipartisan Budget Act and any Treasury Regulations or other administrative pronouncements promulgated thereunder (including adoption of the “push push-out” election provided for by Section 6226(a) of the Code); , (B) adjustments to the Initial Pre-Flip Class A Distribution Percentage (as defined in the Holdings Operating Agreement) in accordance with Section 5.02(a) of the Holdings Operating Agreement or (C) adjustments to the Excess Production Payment Percentages (as defined in the Holdings Operating Agreement) in accordance with the definition of Excess Production Payment Rates in the Holdings Operating Agreement or with Section 4.07 of the Holdings Operating Agreement;
(b)
) (i) the incorporation or acquisition of a Subsidiary of the Company or the Project Company Holdings (or any of their respective Subsidiaries) or the disposition of any shares of a Subsidiary of the Company (other than any shares of Holdings that are not owned by the Company) or Holdings, (ii) the Company, the Project Company or a Subsidiary thereof Holdings (or any of their respective Subsidiaries) entering into any partnership, joint venture or similar arrangement with any 1557237.09-WASSR01A - MSW other PersonPerson (other than the Holdings Operating Agreement or amendments thereto permitted by Section 6.03(a)), or (iii) the purchase of any business by the Company or Holdings (or any of its their respective Subsidiaries) or the acquisition by stock or purchase by the Company or Holdings (or any of its their respective Subsidiaries) of all or substantially all of the assets of any other Person; ;
(c) the sale (or entry into of binding agreements to that effect), lease, exchange or other disposition of (i) all or substantially all of the assets of the Company or Holdings (or any of its their respective Subsidiaries) or (ii) assets of the Company or Holdings (or any of its their respective Subsidiaries) that would result in a material adverse effect on the power generation of the Wind Farm, or or, in the case of each of clauses (i) and (ii) immediately above, the granting of an option or right to such effect; ;
(d) initiating or otherwise participating in voluntary winding-up or bankruptcy proceedings of the Company or Holdings (or any of its their respective Subsidiaries); ;
(e) any merger, amalgamation or consolidation or the entering into of any agreement, arrangement or understanding to merge, amalgamate or consolidate, the Company or Holdings (or any of its their respective Subsidiaries) with any Person; ;
(f) any change to the equity capital structure of the Company or Holdings (or any of its Subsidiaries their respective Subsidiaries) (whether by subdivision, consolidation or reclassification), the issuance or allotment of any equity or the granting of any right, option or privilege to acquire any equity or the redemption or repurchase by the Company or Holdings (or any of their respective Subsidiaries) of any equity, other than (i) as contemplated in this Agreement or the Delaware Certificate in the case of the Company, or the Holdings Operating AgreementAgreement or Holdings’s certificate of formation in the case of Holdings, in each case including any purchase rights or equity dilutions provisions (including to fund non-discretionary expenses or amounts necessary to comply with legal obligations), or (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature; ;
(g) the taking or institution of any proceedings for the continuance, winding-winding up, liquidation, reorganization or dissolution of the Company or Holdings (or any of its their respective Subsidiaries) ), in each case under applicable debtor relief Laws, other than as required by applicable Law; -3- (h) ;
(i) any incurrence of any indebtedness by the Company (Company, Holdings or any of its Subsidiaries) their respective Subsidiaries for borrowed money or granting of any lien or security interest by the Company or Holdings (or any of its their respective Subsidiaries) in respect of any indebtedness for borrowed money, including any financing or refinancing, that is not in existence as of the date hereof, hereof other than (A) in the case of an amendment to or refinancing of existing indebtedness of the CompanyCompany or Holdings (or any of their respective Subsidiaries), where the amended or refinanced indebtedness would not result in a capital call or be in excess of the total amount of the existing indebtedness outstanding at the time of the refinancing that would be amended or extinguished by the refinancing plus all applicable fees, costs and expenses including breakage costs incurred in connection with such new financing or the repayment of the existing indebtedness; or (B) indebtedness of less than 2% of the book value of assets of the Project Company that is required to meet the Project Company’s obligations that cannot reasonably be expected to be met with Distributable Cash or that can be satisfied with the posting of a letter of credit or other security, (ii) making any loan for borrowed money or entering into any external borrowing arrangements where the Company (or any of its Subsidiaries) acts as a lender, (iii) the Company (or any of its Subsidiaries) entering into any derivative transaction or amending in any material manner or terminating any derivative transaction other than in connection with a transaction described in clauses (i)(A) or (i)(B) above and other than short-term energy hedge, renewable attributes and/or capacity transactions, or (iv) any incurrence of any indebtedness for borrowed money or granting of any security interest or entering into any other borrowing arrangements, in each case by the Company (or any of its Subsidiaries) with any Affiliate; (i) the repayment of any loan or advance made by an Affiliate of the Company to the Company (or any of its Subsidiaries), other than in accordance with the terms agreed upon at the time the loan or advance was made; (j) the granting of any security on the assets of the Company (or any of its Subsidiaries) other than (i) under a financing that is otherwise permitted under this Agreement, or (ii) customary liens created in the operation of the Company or the Wind Farm such as liens for trade payables, mechanics, suppliers and warehouse liens, capital leases and tax liens; (k) the guarantee or indemnification by the Company (or any of its Subsidiaries) of, or the grant of security by the Company (or any of its Subsidiaries) for, the debts or obligations of any third party, in each case other than customary guarantees or indemnities arising out of the ordinary course of business of the Company (or any of its Subsidiaries); (l) the guarantee or indemnification by the Company (or any of its Subsidiaries) of, or the grant of security by the Company (or any of its Subsidiaries) for, the debts or obligations of any Affiliate thereof; (m) any change to the distribution policy of the Company (or any of its Subsidiaries) reflected in the Operating Agreement as of the date of the closing under the Purchase and Sale -4- Agreement, other than any changes to allocations and distributions mandated from time to time by the Operating Agreement; (n) the Company (or any of its Subsidiaries) entering into (on or after the date of this Agreement), causing the early termination of, or making material amendments to (i) any Material Contract, (ii) applicable third-party partnership agreements (including the Operating Agreement), or (iii) any contracts with the Seller or its Affiliates, including the Management, Operation and Maintenance Services Agreement and Project Administration Agreement, except (x) in each case for new contracts, terminations and/or amendments that are required by Law or to avoid a material default by the Company (or any of its Subsidiaries) or otherwise preserve material rights of the Company (or any of its Subsidiaries) under such agreements and (y) in the case of clause (ii), as is required to give effect to the exercise of options or rights under such agreements. Notwithstanding the foregoing, with respect to any new contracts that are proposed to be entered between the Company (or any of its Subsidiaries), on the one hand, and the Seller or its Affiliates, on the other, the Managing Member shall provide written notice to the Investor setting out details of the scope of services to be provided by the Seller or such other Affiliate thereof under such new contract and the corresponding fees payable to the Seller or such other Affiliate thereunder. Within thirty (30) calendar days of such a notice, the Investor may object to such new contract on the ground that either the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope). If the Investor objects prior to the expiration of such thirty (30) day notice period, then the matter shall be referred to a dispute resolution process (such process to include mediation through progressively senior levels of each of the Investor and the Managing Member following which the matter shall be referred to an independent third party expert reasonably selected by the Investor, who shall determine if the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope)). If the Investor does not timely object to the proposed new contract, or if the independent third party expert so determines that the proposed scope of services is reasonable and the fees payable are within the range of “market fees”, then the Managing Member shall be permitted to cause the applicable new contract to be so entered into; (o) the approval by the Company (or any of its Subsidiaries) of any capital expenditure or series of related capital expenditures in excess of 2% of the book value of the assets of the Project Company, other than as necessary to comply with applicable Law, address a safety emergency or casualty or maintain an insurance policy relating to the Project Company; (p) the initiation or settlement by the Company (or its Subsidiaries) of any material litigation or material administrative proceeding; (q) appointment and removal/replacement of auditors of the Company (or any of its Subsidiaries), other than when such appointment, removal or replacement of auditors is designed to have the auditor of the Company be the same as the Seller’s auditor; -5- (r) adoption of and changes to employee benefits arrangements or schemes of the Company (or any of its Subsidiaries), except for non-material changes which are reasonable for a Person (other than a natural person) of the same size and nature as the Company; (s) the creation, modification or termination by the Company (or any of its Subsidiaries) of any plan for the purchase of equity or other securities through the award of options to purchase equity, including a stock option plan or similar program; (t) any change to the accounting methods of the Company (or any of its Subsidiaries) or to the fiscal year-end, other than (i) when such change to the accounting methods of the Company (or any of its Subsidiaries) or to the fiscal year-end is designed to conform to the accounting methods or fiscal year-end of the Seller or (ii) to comply with GAAP; (u) any significant change in the scope or nature of the business of the Company (or any of its Subsidiaries) and the entering into any contract, agreement or commitment that would result in a significant change in the scope or nature of the business of the Company (or any of its Subsidiaries); (v) seeking to launch an initial public offering or the admission to trading on a recognized stock exchange of the whole or any part of the Company’s issued securities (or those of any of its Subsidiaries); or (w) filing of Internal Revenue Service Form 8832 (or an alternate or successor form) to elect to have the Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3, or take any affirmative action to have the Company be treated for federal income tax purposes other than as a partnership, except, in each case, as may be required by Law. 3.all
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Consent Required for Certain Actions. Without Any provision of this Agreement (other than Section 6.04(b) and Sections 6.07(b)(ii), (c)(ii), (d)(ii) and (e)(iii)) to the contrary notwithstanding, without the prior written consent of the Investor for so long as it has not lost its PSP Veto Rights pursuant to Section 5 hereofInvestor, the Managing Member shall -2- not (i) vote to approve or (ii) take any of the following actionsnot, except as expressly required by the Energy Hedge Power Purchase Agreement: , the LC Documents or the IRB Documents, take any action to cause the Company, Holdings, the Project Company or the IRB Purchaser (or any of their respective Subsidiaries) to, or cast its vote on the behalf of the Company as a Class B Member, Managing Member or Negotiating Member (each as defined in the Holdings Operating Agreement) of Holdings in any matter coming up for a vote under Holdings Operating Agreement that would cause Holdings, the Project Company or the IRB Purchaser (or any of their respective Subsidiaries) to, take any of the following actions:
(a) any amendment of the certificate of formation or operating agreement of the Company or Holdings (or any of its their respective Subsidiaries), other than (i) amendments as required by the Holdings Operating Agreement, (ii) amendments that are required by Law or Law, are of a clerical or “housekeeping” nature, or are contemplated by this Agreement (including Section 7.01(b)) or (iii) in the case of the Holdings Operating Agreement, (A) amendments to give effect to the provisions of the Bipartisan Budget Act and any Treasury Regulations or other administrative pronouncements promulgated thereunder (including adoption of the “push push-out” election provided for by Section 6226(a) of the Code); , (B) adjustments to the Initial Pre-Flip Class A Distribution Percentage (as defined in the Holdings Operating Agreement) in accordance with Section 5.02(a) of the Holdings Operating Agreement or (C) adjustments to the Excess Production Payment Percentages (as defined in the Holdings Operating Agreement) in accordance with the definition of Excess Production Payment Mtl#: 2837088.5 1557237.09-WASSR01A - MSW Rates in the Holdings Operating Agreement or with Section 4.07 of the Holdings Operating Agreement;
(b)
) (i) the incorporation or acquisition of a Subsidiary of the Company or the Project Company Holdings (or any of their respective Subsidiaries) or the disposition of any shares of a Subsidiary of the Company (other than any shares of Holdings that are not owned by the Company) or Holdings, (ii) the Company, the Project Company or a Subsidiary thereof Holdings (or any of their respective Subsidiaries) entering into any partnership, joint venture or similar arrangement with any other PersonPerson (other than the Holdings Operating Agreement or amendments thereto permitted by Section 6.03(a)), or (iii) the purchase of any business by the Company or Holdings (or any of its their respective Subsidiaries) or the acquisition by stock or purchase by the Company or Holdings (or any of its their respective Subsidiaries) of all or substantially all of the assets of any other Person; ;
(c) the sale (or entry into of binding agreements to that effect), lease, exchange or other disposition of (i) all or substantially all of the assets of the Company or Holdings (or any of its their respective Subsidiaries) or (ii) assets of the Company or Holdings (or any of its their respective Subsidiaries) that would result in a material adverse effect on the power generation of the Wind Farm, or or, in the case of each of clauses (i) and (ii) immediately above, the granting of an option or right to such effect; ;
(d) initiating or otherwise participating in voluntary winding-up or bankruptcy proceedings of the Company or Holdings (or any of its their respective Subsidiaries); ;
(e) any merger, amalgamation or consolidation or the entering into of any agreement, arrangement or understanding to merge, amalgamate or consolidate, the Company or Holdings (or any of its their respective Subsidiaries) with any Person; ;
(f) any change to the equity capital structure of the Company or Holdings (or any of its Subsidiaries their respective Subsidiaries) (whether by subdivision, consolidation or reclassification), the issuance or allotment of any equity or the granting of any right, option or privilege to acquire any equity or the redemption or repurchase by the Company or Holdings (or any of their respective Subsidiaries) of any equity, other than (i) as contemplated in this Agreement or the Delaware Certificate in the case of the Company, or the Holdings Operating AgreementAgreement or Holdings’s certificate of formation in the case of Holdings, in each case including any purchase rights or equity dilutions provisions (including to fund non-discretionary expenses or amounts necessary to comply with legal obligations), or (ii) amendments that are required by Law or are of a clerical or “housekeeping” nature; ;
(g) the taking or institution of any proceedings for the continuance, winding-winding up, liquidation, reorganization or dissolution of the Company or Holdings (or any of its their respective Subsidiaries) ), in each case under applicable debtor relief Laws, other than as required by applicable Law; -3- Mtl#: 2837088.5 1557237.09-WASSR01A - MSW
(h) (i) any incurrence of any indebtedness by the Company (Company, Holdings or any of its Subsidiaries) their respective Subsidiaries for borrowed money or granting of any lien or security interest by the Company or Holdings (or any of its their respective Subsidiaries) in respect of any indebtedness for borrowed money, including any financing or refinancing, that is not in existence as of the date hereof, hereof other than (A) in the case of an amendment to or refinancing of existing indebtedness of the CompanyCompany or Holdings (or any of their respective Subsidiaries), where the amended or refinanced indebtedness would not result in a capital call or be in excess of the total amount of the existing indebtedness outstanding at the time of the refinancing that would be amended or extinguished by the refinancing plus all applicable fees, costs and expenses including breakage costs incurred in connection with such new financing or the repayment of the existing indebtedness; or (B) indebtedness of less than 2% of the book value of assets of the Project Company that is required to meet the Project Company’s obligations that cannot reasonably be expected to be met with Distributable Cash (as such term is defined in the Holdings Operating Agreement) or that can be satisfied with the posting of a letter of credit or other securitysecurity or (C) indebtedness under the LC Documents (as in effect on the date hereof) or under the IRB Documents (as in effect on the date hereof), (ii) making any loan for borrowed money or entering into any external borrowing arrangements where the Company or Holdings (or any of its their respective Subsidiaries) acts as a lender, (iii) the Company or Holdings (or any of its their respective Subsidiaries) entering into any derivative transaction or amending in any material manner or terminating any derivative transaction other than in connection with a transaction described in clauses (i)(A) or (i)(B) above and other than short-term energy hedge, renewable attributes and/or capacity transactions, or (iv) except pursuant to the LC Documents (as in effect on the date hereof) or the IRB Documents (as in effect on the date hereof), any incurrence of any indebtedness for borrowed money or granting of any security interest or entering into any other borrowing arrangements, in each case by the Company or Holdings (or any of its their respective Subsidiaries) with any Affiliate; Member or any Affiliated Party of the Company or Holdings (or any of their respective Subsidiaries) or any Member;
(i) the repayment of any loan or advance made by an Affiliate any Member or any Affiliated Party of the Company to the Company (or any of its Subsidiaries) or of Holdings to Holdings (or any of its Subsidiaries), other than in accordance with the terms agreed upon at the time the loan or advance was made; ;
(j) the granting of any security on the assets of the Company or Holdings (or any of its their respective Subsidiaries) other than (i) under a financing that is otherwise permitted under this Agreement, or (ii) customary liens created in the operation of the Company or the Wind Farm such as liens for trade payables, mechanicsmechanics or suppliers, suppliers and warehouse liens, capital leases and tax liens; ;
(k) the guarantee or indemnification by the Company or Holdings (or any of its their respective Subsidiaries) of, or the grant of security by the Company or Holdings (or any of its their respective Subsidiaries) for, the debts or obligations of any third partyparty (other than the Company or Holdings (or any of their respective Subsidiaries)), in each case other Mtl#: 2837088.5 1557237.09-WASSR01A - MSW than customary guarantees or indemnities arising out of the ordinary course of business of the Company or Holdings (or any of its their respective Subsidiaries); ;
(l) except pursuant to the LC Documents (as in effect on the date hereof) or the IRB Documents (as in effect on the date hereof), the guarantee or indemnification by the Company or Holdings (or any of its their respective Subsidiaries) of, or the grant of security by the Company or Holdings (or any of its their respective Subsidiaries) for, the debts or obligations of any Affiliate thereof; Member or any Affiliated Party thereof or of any Member;
(m) any establishment or change to to, the distribution policy of the Company (or any of its Subsidiaries) reflected in the Operating Agreement as of the date of agreed by PEGI and PSP at or prior to the closing under of the Purchase and Sale -4- AgreementAgreement (as such distribution policy may amended by mutual agreement of PEGI and PSP), or, with respect to Holdings or the Project Company (or any of their respective Subsidiaries), reflected in the Holdings Operating Agreement or the operating agreement of the Project Company, respectively, other than than, in the case of Holdings, (i) any changes to allocations and distributions mandated from time to time by the Holdings Operating Agreement; , (ii) adjustments to the Initial Pre-Flip Class A Distribution Percentage (as defined in the Holdings Operating Agreement) in accordance with Section 5.02(a) of the Holdings Operating Agreement or (iii) adjustments to the Excess Production Payment Percentages (as defined in the Holdings Operating Agreement) in accordance with the definition of Excess Production Payment Rates in the Holdings Operating Agreement or with Section 4.07 of the Holdings Operating Agreement;
(n) the Company or Holdings (or any of its their respective Subsidiaries) entering into (on or after the date of this Agreement), causing the early termination of, or making material amendments to any (i) any Material Contract, (ii) applicable third-party partnership agreements (including the Holdings Operating Agreement), or (iii) any contracts contract with the Seller PEGI or its Affiliates, including the Management, Operation and Maintenance Services Agreement MOMA and Project Administration Agreement, except (x) in each case for new contracts, terminations and/or amendments that are required by applicable Law or to avoid a material default by the Company or Holdings (or any of its their respective Subsidiaries) or otherwise preserve material rights of the Company or Holdings (or any of its their respective Subsidiaries) under such agreements and contract or agreement, (y) in the case of clause (ii), as is required to give effect to the exercise of options or rights under such agreementsagreements and (z) for entering into any Permitted Additional TSA (as defined in the Holdings Operating Agreement) in accordance with the terms of the Holdings Operating Agreement. Notwithstanding the foregoing, with respect to any new contracts that are proposed to be entered between the Company or Holdings (or any of its their respective Subsidiaries), on the one hand, and PEGI or any of its Affiliates (other than the Seller Company or its AffiliatesHoldings (or any of their respective Subsidiaries)), on the other, the Managing Member shall provide written notice to the Investor setting out details of the scope of services to be provided by the Seller PEGI or such other Affiliate thereof under such new contract and the corresponding fees payable to the Seller PEGI or such other Affiliate thereunder. Within thirty (30) calendar days of after such a notice, the Investor may object to such new contract on the ground that either the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope). If the Investor objects prior Mtl#: 2837088.5 1557237.09-WASSR01A - MSW to the expiration of such thirty (30) day 30)-day notice period, then the matter shall be referred to a dispute resolution process (such process to include mediation through progressively senior levels of each of the Investor and the Managing Member following which the matter shall be referred to an independent third party expert reasonably selected by the Investor, who shall determine if the scope of services to be provided is not reasonable or that the proposed fees payable are not within the range of “market fees” (factoring in the proposed scope)). If the Investor does not timely object to the proposed new contract, or if the independent third party expert so determines that the proposed scope of services is reasonable and the fees payable are within the range of “market fees”, then the Managing Member shall be permitted to cause the applicable new contract to be so entered into; . Notwithstanding the foregoing, agreements evidencing indebtedness that the Company or Holdings (or their respective Subsidiaries) are permitted to incur without consent under Section 6.03(h) shall not require consent under this Section 6.03(n);
(o) the approval by the Company or Holdings (or any of its their respective Subsidiaries) of any capital expenditure or series of related capital expenditures in excess of 2% of the book value of the assets of the Project Company, other than as necessary to comply with applicable Law, address a safety emergency or casualty or maintain an insurance policy relating to the Project Company; ;
(p) the initiation or settlement by the Company or Holdings (or its any of their respective Subsidiaries) of any material litigation or material administrative proceeding; ;
(q) appointment and removal/replacement of auditors of the Company or Holdings (or any of its their respective Subsidiaries), other than the appointment of the initial Certified Public Accountants described in the proviso to the definition thereof and other than when such appointment, removal or replacement of auditors is designed to have the auditor of the Company or Holdings be the same as the SellerPEGI’s auditor; -5- ;
(r) adoption of and changes to employee benefits arrangements or schemes of the Company or Holdings (or any of its their respective Subsidiaries), except for non-material changes which are reasonable for a Person (other than a natural person) of the same size and nature as the Company; Company or Holdings;
(s) the creation, modification or termination by the Company or Holdings (or any of its their respective Subsidiaries) of any plan for the purchase of equity or other securities through the award of options to purchase equity, including a stock option plan or similar program; ;
(t) any change to the accounting methods of the Company or Holdings (or any of its their respective Subsidiaries) or to the fiscal year-end, other than (i) when such change to the accounting methods of the Company or Holdings (or any of its their respective Subsidiaries) or to the fiscal year-end is designed to conform to the accounting methods or fiscal year-end of the Seller PEGI or (ii) to comply with GAAP; Mtl#: 2837088.5 1557237.09-WASSR01A - MSW
(u) any significant change in the scope or nature of the business of the Company or Holdings (or any of its their respective Subsidiaries) and the entering into any contract, agreement or commitment that would result in a significant change in the scope or nature of the business of the Company or Holdings (or any of its their respective Subsidiaries); ;
(v) seeking to launch an initial public offering or the admission to trading on a recognized stock exchange of the whole or any part of the Company’s or Holdings’s issued securities (or those of any of its Subsidiaries); or or
(w) filing of Internal Revenue Service IRS Form 8832 (or an such alternate or successor form) to elect to have the Company or Holdings classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3, or take any affirmative action to have the Company or Holdings be treated for federal income tax purposes other than as a partnership, except, except in each case, as may be required by Law. 3.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pattern Energy Group Inc.)
