Common use of Interim Period Operations Clause in Contracts

Interim Period Operations. 9.1 Between the date hereof and Completion, the Seller shall (to the extent it is able so to do having regard to the provisions of the Operating Agreement [Unit Agreement]):- (a) continue to carry on its activities in relation to the Asset in the ordinary and usual course so as to protect and maintain the same [in accordance with good oil field practice] and comply with previously agreed decisions of the Operating Committee in relation to the Assets; (b) consult with the Purchaser with regard to the Asset and co-operate with the Purchaser so as to ensure an efficient handover of the Asset on Completion and use its reasonable endeavours to protect or procure the protection of the Asset for the benefit of the Purchaser; (c) insofar as reasonably practicable, keep the Purchaser fully informed in a timely manner on any and all matters (not of a routine nature) relating to the Asset; and (d) not to do or omit to do anything which would result in a breach of any of the Warranties given by it. 9.2 The Seller shall: (a) not, except with the prior written approval of the Purchaser (such approval not to be unreasonably withheld or delayed) amend or agree to amend any of the Asset Documents in any respect in so far as such amendment or agreement to amend relates to or affects the Asset or waive or agree to waive any of its rights or remedies thereunder or arising therefrom in so far as such rights and remedies relate to or affect the Asset; (b) If is considers in good faith that a particular matter or proposal is of a nature which may have an adverse effect on the value of the Asset, notify the Purchaser in writing, consult (to the extent reasonably practicable) with the Purchaser in relation to that matter or proposal, take account of any representation which the Purchaser may make and, provided always that such action shall not be prejudicial to any of the Seller’s other business interest and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, carry out the wishes of the Purchaser in so far as it is reasonably practicable to do so following such consultation; and (c) As soon as reasonably practicable provide the Purchaser (to the extent it is contractually and legally permitted to do so) with details of any matter relating to or affecting the Asset on which the Seller is entitled to vote (a “Voting Matter”) and, prior to exercising its vote on a Voting Matter, consult (to the extent reasonably practicable) with the Purchaser in relation to the Voting Matter, take account of any representations which the Purchaser may make and provided always that such action shall not be prejudicial to any of the Seller’s other business interests and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, exercise its voting rights in a manner which is not inconsistent with the Purchasers’ representations.

Appears in 2 contracts

Samples: Sale and Purchase Agreement, Sale and Purchase Agreement

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Interim Period Operations. 9.1 Between (a) Except as required or expressly permitted by the terms of this Agreement, required by applicable Law, as consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned, or delayed), or as otherwise set forth in \\4141-5696-8778 v37 Section 7.01 (a) of the Disclosure Schedule, during the Interim Period, Seller shall cause each of the Acquired Company Group Members (provided, that, with respect to Dos Caminos, the foregoing is limited to the extent the holder of the Dos Caminos Investment is exercising voting or consent rights that it has under the Organizational Documents of Dos Caminos) to (A) own, lease, operate and maintain its business and its assets and properties, including the Pipelines, and conduct its operations in the ordinary course of business, and (B) preserve intact its business, business organization, operations, goodwill, assets and properties as well as its relationships with customers, suppliers, licensors, licensees, lessors and others having business relationships with the Acquired Company Group, in each case in all material respects. Without limiting the generality of the foregoing, except as otherwise (1) expressly required or permitted by the terms of this Agreement, (2) required by applicable Law, (3) consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (4) pursuant to a received Buy-Sell Offer Notice in accordance with the terms of Section 7.19, or (5) otherwise set forth in Section 7.01(a) of the Disclosure Schedule, Seller shall not (solely with respect to the Acquired Company Group), and shall cause each of the Acquired Company Group Members (provided, that, with respect to Dos Caminos, the foregoing is limited to the extent the holder of the Dos Caminos Investment is exercising voting or consent rights that it has under the Organizational Documents of Dos Caminos) not to, undertake any of the following during the Interim Period: (i) transfer, issue, sell, or otherwise dispose, or repurchase, redeem, or otherwise acquire or split, combine, subdivide or reclassify, any Equity Interests in any Acquired Company Group Member, including any of the Acquired Company Interests; (ii) amend or adopt any change to its Organizational Documents; (iii) form any Subsidiaries; (iv) consolidate with any other Person or acquire (by merger, consolidation, acquisition of stock or assets, or otherwise) all or substantially all of the assets of any other Person; (v) sell, transfer, or otherwise dispose of any assets pertaining to the business of the Acquired Company Group having a value in excess of $1,000,000 to any Person (other than any Acquired Company Group Member) or impose any Liens on such assets (other than Permitted Liens), in each case, other than in the ordinary course of business; (vi) liquidate, dissolve, recapitalize, reorganize or otherwise wind up any Acquired Company Group Member; (vii) other than in the ordinary course of business, (A) create, incur, or assume any indebtedness for borrowed money, (B) assume, guarantee, endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any Person (other than any Acquired Company Group Member) or (C) make any loans, advances, or capital contributions to or investments in any Person (other than any Acquired Company Group Member); \\4141-5696-8778 v37 (viii) settle, cancel, or compromise any debt or claim or any Action against any Acquired Company Group Member or waive or release any material right of the Acquired Company Group, except, in each case, as would not be reasonably expected (due to the nature of the claims involved or the scope of their applicability to the Acquired Company Group’s operations) to involve amounts in excess of $1,000,000 in value, or where the amount paid in settlement does not exceed the amount reserved against such matter in the NET Midstream Parent Financial Statements (or the notes thereto); \\4141-5696-8778 v37 (ix) except as may be required to meet the requirements of applicable Law or GAAP, change any accounting method or practice; (x) materially change any historical working capital practice, including accelerating any collections of cash or accounts receivables or deferring or delaying accounts payable; (xi) except as set forth in Section 7.01(a)(xi) of the Disclosure Schedule, (A) adopt, or enter into, any Employee Benefit Plan, (B) directly hire or engage any officer, employee or other individual service provider outside the ordinary course of business consistent with past practice, (C) enter into any labor or collective bargaining agreement, or (D) grant any bonus, salary, severance, termination, or other compensation or benefits or other enhancement to the terms or conditions of employment to any Person outside the ordinary course of business consistent with past practice; (xii) subject to Section 7.01(d), amend, assign, modify, terminate, extend or change, or waive, release, grant, close out or transfer any material rights under, any Material Contract or other Contract listed in Section 4.16(a) or Section 4.16(b) of the Disclosure Schedule or otherwise enter into, amend, assign, modify or terminate any Contract which would have been a Material Contract or would have been required to be listed in Section 4.16(a) or Section 4.16(b) of the Disclosure Schedule, including if so amended or modified, had it been entered into prior to the date hereof and Completionof this Agreement; (xiii) subject to the Organizational Documents of each Acquired Company Group Member, make any settlement of or compromise any Tax Claim, change any material Tax election or Tax method of accounting, make any material new Tax election, adopt any new Tax method of accounting, or amend any Tax Return; (xiv) make any capital expenditure or capital commitment not described in Section 7.01(a) of the Disclosure Schedule in excess of $1,000,000 or on Schedule III; (xv) enter into any Affiliate Contract or any other Contract or transaction with an Affiliate that is not an Acquired Company Group Member; (xvi) enter into any Derivative Financial Instrument; (xvii) terminate, amend, fail to renew or fail to pay any amounts due with respect to any Material Permit; (xviii) terminate, fail to renew or fail to pay any premiums when due with respect to any insurance policies set forth in Section 3.10 of the Disclosure Schedule; (xix) declare or pay any non-cash dividend or distribution in respect of the Equity Interests of any Acquired Company Group Member; \\4141-5696-8778 v37 (xx) deliver a Buy-Sell Offer Notice or consummate a purchase or sale pursuant thereto; or (xxi) agree or commit to do any of the foregoing. Notwithstanding the foregoing, as relates to any action or undertaking by Dos Caminos, the foregoing restrictions on Interim Period operations shall only apply to the extent the holder of the Dos Caminos Investment is exercising voting or consent rights that it has under the Organizational Documents of Dos Caminos. Buyer’s receipt of information pursuant to this Section 7.01 shall not operate as a waiver or otherwise affect any representation, warranty, covenant or agreement given or made by Seller in this Agreement and shall not be deemed to amend or supplement the Disclosure Schedule. (b) In the event any counterparty to any Material Contract, or to Seller’s Knowledge any counterparty to any Contract set forth on Section 4.16(a) or Section 4.16(b) of the Disclosure Schedule, provides written notice to Seller or any member of the Acquired Company Group of its intent to terminate, modify or amendment any such Material Contract or other such Contract described above, Seller shall give Buyer prompt written notice thereof, but in any event within three (3) Business Days. (c) Notwithstanding the other provisions of this Section 7.01, during the Interim Period, the Acquired Company Group may take commercially reasonable actions with respect to emergency situations as a reasonable and prudent operator would take; provided that Seller must provide Buyer with prompt written notice of such actions taken as soon as reasonably practicable. (d) Notwithstanding anything in Section 7.01(a) to the contrary, in the event that Seller requests the consent of Buyer (which such request may be made in writing or by email) to (i) enter into any Contract that if entered into prior to the date of this Agreement would be required to be listed as a Material Contract, or (ii) materially amend or change the terms of any Material Contract, in each case, in a manner that would otherwise be prohibited pursuant to Section 7.01(a) without Buyer’s consent, Buyer shall have five (5) Business Days from its receipt of notice thereof from Seller to inform Seller of its decision to provide such consent. Seller shall have no Liability under this Section 7.01 with respect to the taking of such action in the event (A) Buyer consents in writing to the taking of the action, or (B) Buyer fails to inform Seller of Buyer’s decision within such five (5) Business Day period, in which case Buyer shall be deemed to have consented to the taking of the action. (e) Subject to Section 7.01(a)(xiv), during the Interim Period, Seller shall, and shall cause the applicable NET Midstream Company Group Members, NEP DC Holdings and Dos Caminos (to the extent it is able so to do having regard to the provisions holder of the Operating Agreement [Unit Agreement]):- (a) Dos Caminos Investment is exercising voting or consent rights that it has under the Organizational Documents of Dos Caminos), to continue to carry on its activities in relation to the Asset make capital expenditures in the ordinary course of business consistent with past practice, and usual course so as to protect in any event in all material respects with the business plan and maintain the same [budget attached in accordance with good oil field practice] and comply with previously agreed decisions of the Operating Committee in relation Section 7.01(a) of the Disclosure Schedule. \\4141-5696-8778 v37 (f) In addition to the Assetsactions contemplated by this Section 7.01, during the Interim Period, Seller shall promptly notify Buyer in writing of: (i) any written notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or the Transaction Documents; (bii) consult any written notice or other communication from any Governmental Authority in connection with the Purchaser with regard to transactions contemplated by this Agreement or the Asset and co-operate with the Purchaser so as to ensure an efficient handover of the Asset on Completion and use its reasonable endeavours to protect or procure the protection of the Asset for the benefit of the Purchaser; (c) insofar as reasonably practicable, keep the Purchaser fully informed in a timely manner on any and all matters (not of a routine nature) relating to the AssetTransaction Documents; and (diii) any Actions commenced or, to the Knowledge of Seller, threatened against, relating to or involving or otherwise affecting any Acquired Company Group Member that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to this Agreement or that relate to the consummation of the transactions contemplated by this Agreement. (g) For purposes of clarification, nothing contained in this Section 7.01 is intended to give Buyer, directly or indirectly, the right to control or direct the operations of the Acquired Companies or any other Acquired Company Group Member prior to the Closing. Subject to the other provisions of this Section 7.01, prior to the Closing, Seller, the Acquired Companies, and the other Acquired Company Group Members shall exercise complete control and supervision over the Acquired Company Group’s operations. Notwithstanding anything to the contrary set forth in this Agreement, no consent of Buyer shall be required with respect to any matter set forth in this Section 7.01 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law. (h) Notwithstanding anything to the contrary set forth in this Agreement, any action by Seller or the Acquired Company Group Members which is consented to by Buyer in writing shall not to do or omit to do anything which would result in constitute a breach of any of the Warranties given by it. 9.2 The Seller shall: (a) notcovenant, except with the prior written approval of the Purchaser (such approval not to be unreasonably withheld representation or delayed) amend or agree to amend any of the Asset Documents warranty set forth in any respect in so far as such amendment or agreement to amend relates to or affects the Asset or waive or agree to waive any of its rights or remedies thereunder or arising therefrom in so far as such rights and remedies relate to or affect the Asset; (b) If is considers in good faith that a particular matter or proposal is of a nature which may have an adverse effect on the value of the Asset, notify the Purchaser in writing, consult (to the extent reasonably practicable) with the Purchaser in relation to that matter or proposal, take account this Agreement of any representation which the Purchaser may make and, provided always that such action shall not be prejudicial to any of the Seller’s other business interest and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, carry out the wishes of the Purchaser in so far as it is reasonably practicable to do so following such consultation; and (c) As soon as reasonably practicable provide the Purchaser (to the extent it is contractually and legally permitted to do so) with details of any matter relating to or affecting the Asset on which the Seller is entitled to vote (a “Voting Matter”) and, prior to exercising its vote on a Voting Matter, consult (to the extent reasonably practicable) with the Purchaser in relation to the Voting Matter, take account of any representations which the Purchaser may make and provided always that such action shall not be prejudicial to any of the Seller’s other business interests and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, exercise its voting rights in a manner which is not inconsistent with the Purchasers’ representationsParty.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Nextera Energy Partners, Lp)

Interim Period Operations. 9.1 Between the date hereof and Completion, the Seller shall (to the extent it is able so to do having regard to the provisions of the Operating Agreement [Unit Agreement]):- (a) continue to carry on its activities in relation to From the Asset in Execution Date until the ordinary and usual course so as to protect and maintain earlier of the same [Closing or the termination of this Agreement in accordance with Article X, except (1) as may be required for Emergency Operations or (2) for the actions expressly permitted or required under the terms of this Agreement, including, for the avoidance of doubt, all reasonably necessary actions taken in connection with, in contemplation of or in preparation for, the transactions contemplated by the Business Separation Agreement and this Agreement, or consented to in writing by the New Member (which consent shall not be unreasonably delayed, withheld or conditioned), the Existing Member shall, and shall cause the Business, the Assets and the Company to: (i) operate the Assets and the Business in a good oil field practice] and comply with previously agreed decisions workmanlike manner, and maintain its books and records, in the Ordinary Course of Business; (ii) use commercially reasonable efforts to maintain and to keep the Assets in good repair and condition, ordinary wear and tear excepted; (iii) use commercially reasonable efforts to maintain and preserve intact the Business and the current organization, business and franchise of the Operating Committee Company, and to preserve the rights, franchises, goodwill, services and relationships of the Business Employees, customers, lenders, suppliers, contractors, vendors, suppliers, agents, regulators and others having business relationships in relation to connection with the Business or the Assets; (biv) consult comply in all material respects with the Purchaser with regard to the Asset and co-operate with the Purchaser so as to ensure an efficient handover of the Asset on Completion and use its reasonable endeavours to protect or procure the protection of the Asset for the benefit of the Purchaserall applicable Law; (cv) insofar use commercially reasonable efforts to keep in full force and effect insurance applicable to the Business and the Assets comparable in amount and scope of coverage to that currently maintained; (vi) give written notice to the New Member as reasonably practicablesoon as is practicable of any written notice received or given by any member of the Sasol Group with respect to any alleged material violation or breach by any member of the Sasol Group or other Person of (A) any Material Contract, keep (B) any Easement or Business Permit, or (C) any Law, in each case, to the Purchaser fully informed in a timely manner on any and all matters (not of a routine nature) extent relating to the Asset; andCompany, the Assets, the Business or any Business Employee; (dvii) not to do or omit to do anything which would result in a breach give prompt written notice following receipt by any member of the Sasol Group of any of material Action initiated by, or written claim threatening a material Action, received from, any Person with respect to the Warranties given by it. 9.2 The Seller shall:transactions contemplated hereby or the Company, the Assets, the Business or any Business Employee; (aviii) notwith respect to Emergency Operations, except with notify the prior written approval New Member of such emergency and the Purchaser related Emergency Operations as soon as reasonably practicable (such approval not to be unreasonably withheld or delayed) amend or agree to amend any of the Asset Documents and in any event within one (1) Business Day following the occurrence thereof); (ix) give prompt notice to the New Member of (A) any material damage or any casualty to the Assets or any other assets material to the Business, (B) any written notice received or made by the Sasol Group in connection with any Insurance Policy (including with respect to any notice of potential claims or losses), or (C) any written notice received or made by the Sasol Group of any claim asserting any material tort or violation of Law or any new or threatened Action, that (in so far as such amendment or agreement to amend each case) relates to or affects the Asset Company, the Business or waive the Assets; (x) give prompt notice to the New Member of any notice or agree other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and (xi) give prompt notice to waive the New Member of any of its rights notice or remedies thereunder or arising therefrom other communication from any Governmental Authority in so far as such rights and remedies relate to or affect connection with the Asset;transactions contemplated by this Agreement. (b) If is considers From the Execution Date until the earlier of the Closing or the termination of this Agreement in accordance with Article X, except (1) as may be required for Emergency Operations, (2) the actions expressly permitted or required under the terms of this Agreement or consented to in writing by the New Member, (3) actions taken in accordance with or otherwise contemplated by the Business Separation Agreement, and (4) commercially reasonable actions taken in the reasonable discretion of the Existing Member in good faith in connection with the construction, development and testing to the extent required for repairs or completion any of the Assets (provided that (x) such construction, development and testing shall be conducted in a particular matter good and workmanlike manner consistent with applicable Law, safety and good business practice and (y) to the extent any actions relating to such construction, development and testing would require the consent of the Existing Member pursuant to this Section 6.01(b), the Existing Member shall otherwise keep the New Member reasonably informed as to the status of any such construction, development and testing), the Existing Member shall not, and shall not permit the Business, the Assets or proposal is the Company to: (i) (A) issue, sell, grant, set-aside, dispose of, accelerate the vesting of, modify or otherwise subject to any Lien, as applicable, any Equity Interest of the Company, (B) redeem, purchase or otherwise acquire any of Equity Interests of the Company, (C) declare, set aside for payment or pay any distribution or dividends on any Equity Interests of the Company, or (D) split, combine, subdivide or reclassify or otherwise amend the terms of any Equity Interests of the Company, or (E) make any other change with respect to the Company’s capital structure; (ii) engage in any transaction or series of related transactions to sell, exchange, transfer, mortgage, lease, pledge or dispose of all or any portion of the Assets (other than (A) pursuant to any Material Contracts, (B) dispositions of obsolete or worthless equipment, or (C) transactions involving sales of chemicals and petrochemicals in the Ordinary Course of Business), merge or consolidate the Company with any other Person; (iii) make, enter into any material commitment for or authorize any capital expenditure with respect to the Assets or the Business or make any material commitment for the purchase, construction or improvement of the Assets or the Business, in each case in excess of three million dollars ($3,000,000); (iv) voluntarily incur, create or assume any Lien with respect to any asset which is, or will be after giving effect to the Reorganization, an Asset other than Permitted Liens; (v) (A) incur, assume or guarantee any Indebtedness, in each case, for which the New Member or the Company would have Liability from and after the Closing, (B) otherwise incur any Lien or agree to furnish a guarantee or other credit support in an amount in excess of one million dollars ($1,000,000) in any transaction or series of related transactions, or (C) purchase, redeem, cancel, prepay or make any other complete or partial discharge in advance of a nature which may have scheduled payment or mandatory redemption date of any such obligation in any transaction or series of related transactions; (vi) assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances or capital contributions to, or investments in, any Person (other than (A) travel, relocation expenses and similar expenses or advances to its employees in the Ordinary Course of Business, or (B) trade credit granted in the Ordinary Course of Business); (vii) directly or indirectly (A) acquire or agree to acquire by merging or consolidating with, or by purchasing all of or a substantial Equity Interest in or any material assets of, making an adverse investment in or capital contribution to or by any other manner, any Person or division, business or Equity Interest of any Person, or (B) enter into any joint venture, strategic alliance, exclusive dealing, noncompetition or similar contract or arrangement that would restrict or limit the operations of the Company, the Business or the Assets; (viii) take any action with respect to any adoption of, or adopt, a plan of complete or partial liquidation or a bankruptcy, dissolution, merger, consolidation, conversion, restructuring, recapitalization, reclassification, or other reorganization or winding up of any of the Company, except in accordance with the Reorganization; (ix) (A) adopt or permit any change in the tax classification for federal income tax purposes of the Company, (B) make, change or rescind any material Tax election, (C) settle or compromise any material audit, examination or proceeding relating to Taxes, (D) change any annual accounting period of the Company, (E) adopt or change any accounting method of the Company or relating to the Company, the Assets or the Business, (F) file any amended Tax Return of the Company or with respect to the Business or the Assets, or (G) surrender any right to claim a refund of Taxes of the Company or with respect to the Business or the Assets; (x) unless required by Law, (A) modify, extend, or enter into any Collective Bargaining Agreement, or (B) recognize or certify any labor union, labor organization, employee representative body or group of Business Employees as the bargaining representative for any Business Employees; (xi) implement (with respect to the Business Employees) any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, material work schedule changes or other such actions that could implicate the WARN Act; (xii) hire, engage, terminate (without cause), furlough, or temporarily layoff any Business Employee or reassign the duties of (A) a Dedicated Employee such that he or she is no longer a Dedicated Employee, (B) an Available Employee such that he or she is no longer an Available Employee or (C) any other employee of the Existing Member such that he or she would be a Dedicated Employee, provided that none of the foregoing shall prevent or restrict the hiring of any employee to replace a Dedicated Employee whose employment has terminated without violation of the foregoing so long as any such hiring is made in consultation with the New Member; (xiii) except as required by the terms of a Business Benefit Plan in effect as of the Execution Date and set forth on Section 3.17(a)(i) of the Disclosure Schedule or as required by Law or, with respect to matters that do not result in any Liability to the New Member or the Company, (A) except as set forth on Section 6.01(b)(xiii) of the Disclosure Schedule, grant or announce any increase in the wages, salaries, compensation or benefits under any Benefit Plan with respect to any Business Employee, (B) materially amend, adopt, materially modify or terminate any Benefit Plan with respect to any Business Employee (or any plan, program, policy or arrangement that would be a Benefit Plan if in effect on the value Execution Date), (C) grant or announce any change in control, transaction, retention bonus or other similar bonus award to any Business Employee, (D) hire, materially modify the job responsibility of, or extend offers of employment or engagement to any individual who would be a Dedicated Employee or other individual service provider of the AssetBusiness as of the Execution Date, notify except to replace a Dedicated Employee whose employment has terminated without violation of this Agreement so long as any such action is taken in consultation with the Purchaser New Member, or (E) terminate (except for cause), transfer or materially modify the job responsibilities of any Business Employee or other individual service provider of the Business in writinga manner that results in such employee ceasing to be a Business Employee or other individual service provider of the Business; (xiv) enter into any amendment to the Organizational Documents of the Company; (xv) Except as set forth on Section 6.01(b)(xv) of the Disclosure Schedule, consult (A) enter into any Contract that would be a Material Contract if in existence as of the Execution Date, (B) modify or amend in any material respect or terminate any Material Contract, (C) waive any material rights under any Material Contract or (D) release any Person from, or modify or waive any provision of, any standstill, confidentiality or similar agreement, in each case, related to the Business or the Assets; (xvi) terminate any Real Property Lease or, other than in the Ordinary Course of Business, amend, modify, extend or renew any Real Property Lease, or acquire or sell any interest in Real Property; (xvii) cancel, compromise, waive or release any right or claim to an amount greater than three million dollars ($3,000,000) in a manner or with an effect that, individually or in the aggregate, is adverse to the Company, the Business or the Assets in any material respect; (xviii) (A) commence any Action (other than with respect to any Action against the New Member or any of its Affiliates), or (B) pay, discharge, settle or satisfy any Action to the extent reasonably practicablesuch payment, discharge, settlement or satisfaction (x) results in the payment or incurrence of Liabilities or obligations by the Company of an amount in excess of one million dollars ($1,000,000) individually or five million dollars ($5,000,000) in the aggregate or (y) includes any equitable remedies or other restrictions binding on the Company, the Business or the Assets beyond such cash settlement; (xix) take or fail to take any action that would result in the (A) cancellation, reduction, termination or failure to maintain coverage or satisfy any obligation under any Insurance Policy (including, for the avoidance of doubt, failing to provide notice for any casualty or property damage), or (B) the denial of coverage under any Insurance Policy, in each case, other than in connection with obtaining any replacement insurance policy providing substantially similar coverage on substantially the Purchaser in relation same terms as such Insurance Policy; (xx) enter into any commodity derivative instruments; (xxi) terminate or voluntarily relinquish any material Permit relating to that matter the Business or proposalthe Assets, including any Business Permit; or (xxii) enter into any Contract providing for or otherwise committing to take account of any representation which the Purchaser may make and, provided always that such action shall not be prejudicial to any of the Seller’s other business interest and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, carry out the wishes of the Purchaser in so far as it is reasonably practicable to do so following such consultation; and (c) As soon as reasonably practicable provide the Purchaser (to the extent it is contractually and legally permitted to do so) with details of any matter relating to or affecting the Asset on which the Seller is entitled to vote (a “Voting Matter”) and, prior to exercising its vote on a Voting Matter, consult (to the extent reasonably practicable) with the Purchaser in relation to the Voting Matter, take account of any representations which the Purchaser may make and provided always that such action shall not be prejudicial to any of the Seller’s other business interests and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, exercise its voting rights in a manner which is not inconsistent with the Purchasers’ representationsforegoing actions.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (LyondellBasell Industries N.V.)

Interim Period Operations. 9.1 Between (a) Except as (i) expressly required by this Agreement, (ii) consented to by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) required by Law or the date hereof terms of any Material Permit or Material Contract or (iv) otherwise set forth on Schedule 6.01, from the Effective Date until the Closing (the “Interim Period”), Seller will cause each Acquired Company (A) to conduct its business in the ordinary course of business and Completionin compliance in all material respects with all applicable Laws and (B) to pay its debts, Taxes and other obligations when due, and (ii) use commercially reasonable efforts to preserve the present business operations, organization and goodwill of the Acquired Companies and preserve the present relationships with the customers and suppliers of the Company. Without limiting the foregoing, except as (w) expressly required by this Agreement, (x) consented to by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required by Law or the terms of any Material Permit or Material Contract or (z) otherwise set forth on Schedule 6.01, during the Interim Period Seller shall will cause each Acquired Company not to undertake any of the following: (i) adopt any change in any such Acquired Company’s Charter Documents; (ii) fail to maintain its limited liability company existence, or consolidate with any other Person or acquire (by merger, consolidation, acquisition of stock or Assets or otherwise) all or substantially all of the extent it is able so Assets of any other Person; (iii) sell, transfer or otherwise dispose of any Assets of an Acquired Company having a value in excess of $50,000, other than (A) sales of inventory in the ordinary course of business, (B) replacement of Assets of such Acquired Company in the ordinary course of business or dispositions of obsolete or worthless Assets, (C) transfers between the Acquired Companies, (D) the incurrence of Permitted Liens and (E) distributions of cash and cash equivalents subject to do having Section 2.06(a); (iv) split, combine or reclassify any Equity Interests in an Acquired Company; (v) transfer, issue, sell or otherwise dispose, or repurchase, redeem or otherwise acquire, any Equity Interests in an Acquired Company; (vi) liquidate, dissolve, recapitalize, reorganize or otherwise wind up all or any portion of its Business; (vii) purchase any Equity Interests of any Person; (viii) enter into any Contract of the type described in Section 4.16(a)(i) (without regard to the provisions of the Operating Agreement [Unit Agreement]):- (a) continue to carry on its activities dollar thresholds described therein), or amend, modify or terminate any such existing Contract, in relation to the Asset each case other than entering into or modifying any such Contract in the ordinary course of business for: (A) interruptible park and usual course loan services so long as neither leg of such services is performed after October 31, 2020; (B) firm park and loan services so long as neither leg of such services is performed after March 31, 2020; or (C) firm storage services so long as the Contract for such services is entered into or renewed after November 15, 2019 and has a renewed or new term of no longer than two years; provided, that any Contracts for the services described in clauses (A) through (C) above shall be entered into or modified (1) in compliance with the Company’s risk management policy set forth on Schedule 6.01(a)(viii)(1), subject to protect any lesser term or tenor restrictions as provided in clauses (A) through (C) above, (2) shall not result in an open or speculative position and maintain the same [(3) solely for any such Contracts entered into on or prior to November 15, 2019, shall not result in accordance with good oil field practice] (irrespective of any contrary scope, term, tenor, net monthly position or other limitations set forth on Schedule 6.01(a)(viii)(1)) (x) a park and comply with previously agreed decisions loan book inventory position (interruptible and firm) in each of the Operating Committee months of November and December of 2019 that is greater than the maximum inventory position set forth on Schedule 6.01(a)(viii)(2) for such month or (y) a park and loan book inventory position (firm and interruptible) in relation each of the months of February, March, and April of 2020 that is less than the minimum inventory position set forth on Schedule 6.01(a)(viii)(2) for such month; provided further, irrespective of any contrary scope, term, tenor, net monthly position or other limitations set forth on Schedule 6.01(a)(viii)(1), that Seller may enter park and loan service Contracts that extend beyond the dates in (A) and (B) above for the sole purpose of satisfying pad gas requirements during the months December 2020 through April 2021 so long as neither leg of such services is performed after April 30, 2021, and the total park volume does not exceed 7,000,000 dths; (ix) enter into any Contract (other than Contracts of the type described in Section 4.16(a)(i)) that would have been required to be listed as a Material Contract had it been entered into on or before the Effective Date, or amend, modify or terminate any existing Material Contract; (x) amend, modify, terminate, permit to lapse or fail to maintain any existing Permit held by an Acquired Company, or amend or apply to amend any tariff; (xi) make or agree to make any loans, advances or capital contributions to, or investments in, any other Person other than loans, advances or capital contributions to, or investments in, the Acquired Companies; (xii) incur (or enter into any agreement for the incurrence of) any Indebtedness except draws under the Credit Agreement in the ordinary course; (xiii) waive, release, cancel, settle or compromise any material Indebtedness, Claim, Proceeding or right; (xiv) make any non-cash dividends or distributions; (xv) make any increase or alteration to the Assetscompensation paid or payable by any Acquired Company or any material alteration in the timing or method of such payments, whether conditionally or otherwise, to any Company Employee other than in the ordinary course of business; (xvi) except as may be required to meet the requirements of GAAP, change any accounting method or practice; (xvii) fail to maintain insurance coverage substantially equivalent to its existing insurance coverage of the Acquired Companies’ Assets as in effect on the Effective Date; provided, however, that, for the avoidance of doubt, Seller may renew any of the insurance policies listed on Schedule 4.10 on terms materially consistent with the terms of such insurance policies as of the Effective Date without Buyer’s consent; (xviii) sell or purchase any Base Gas; (xix) purchase or sell any gas (i) in any transaction having a value in excess of $150,000 individually or (ii) having a value in excess of $150,000 in the aggregate; (xx) make any material filings with the FERC other than in the ordinary course of business consistent with past practice; or (xxi) agree or commit to do any of the foregoing. (b) consult with Notwithstanding the Purchaser with regard foregoing, in the event of an emergency, an Acquired Company may take commercially reasonable actions that a prudent owner or operator would take while such emergency is continuing; provided that Seller shall cause such Acquired Company to the Asset and co-operate with the Purchaser so as to ensure an efficient handover of the Asset on Completion and use its reasonable endeavours to protect or procure the protection of the Asset for the benefit of the Purchaser; (c) insofar as reasonably practicable, keep the Purchaser fully informed in a timely manner on any and all matters (not of a routine nature) relating to the Asset; and (d) not to do or omit to do anything which would result in a breach promptly inform Buyer of any of the Warranties given by itsuch actions taken. 9.2 The Seller shall: (a) not, except with the prior written approval of the Purchaser (such approval not to be unreasonably withheld or delayed) amend or agree to amend any of the Asset Documents in any respect in so far as such amendment or agreement to amend relates to or affects the Asset or waive or agree to waive any of its rights or remedies thereunder or arising therefrom in so far as such rights and remedies relate to or affect the Asset; (b) If is considers in good faith that a particular matter or proposal is of a nature which may have an adverse effect on the value of the Asset, notify the Purchaser in writing, consult (to the extent reasonably practicable) with the Purchaser in relation to that matter or proposal, take account of any representation which the Purchaser may make and, provided always that such action shall not be prejudicial to any of the Seller’s other business interest and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, carry out the wishes of the Purchaser in so far as it is reasonably practicable to do so following such consultation; and (c) As soon as reasonably practicable provide the Purchaser (to the extent it is contractually and legally permitted to do so) with details of any matter relating to or affecting the Asset on which the Seller is entitled to vote (a “Voting Matter”) and, prior to exercising its vote on a Voting Matter, consult (to the extent reasonably practicable) with the Purchaser in relation to the Voting Matter, take account of any representations which the Purchaser may make and provided always that such action shall not be prejudicial to any of the Seller’s other business interests and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, exercise its voting rights in a manner which is not inconsistent with the Purchasers’ representations.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (New Jersey Resources Corp)

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Interim Period Operations. 9.1 Between the date hereof and Completion, the Seller shall (to the extent it is able so to do having regard to the provisions of the Operating Agreement [Unit Agreement]):- (a) continue to carry on its activities in relation to From the Asset in Execution Date until the ordinary and usual course so as to protect and maintain earlier of the same [Closing or the termination of this Agreement in accordance with Article X, except (1) as may be required for Emergency Operations or (2) for the actions expressly permitted or required under the terms of this Agreement, including, for the avoidance of doubt, all reasonably necessary actions taken in connection with, in contemplation of or in preparation for, the transactions contemplated by the Business Separation Agreement and this Agreement, or consented to in writing by the New Member (which consent shall not be unreasonably delayed, withheld or conditioned), the Existing Member shall, and shall cause the Business, the Assets and the Company to: (i) operate the Assets and the Business in a good oil field practice] and comply with previously agreed decisions workmanlike manner, and maintain its books and records, in the Ordinary Course of Business; (ii) use commercially reasonable efforts to maintain and to keep the Assets in good repair and condition, ordinary wear and tear excepted; (iii) use commercially reasonable efforts to maintain and preserve intact the Business and the current organization, business and franchise of the Operating Committee Company, and to preserve the rights, franchises, goodwill, services and relationships of the Business Employees, customers, lenders, suppliers, contractors, vendors, suppliers, agents, regulators and others having business relationships in relation to connection with the Business or the Assets; (biv) consult comply in all material respects with the Purchaser with regard to the Asset and co-operate with the Purchaser so as to ensure an efficient handover of the Asset on Completion and use its reasonable endeavours to protect or procure the protection of the Asset for the benefit of the Purchaserall applicable Law; (cv) insofar use commercially reasonable efforts to keep in full force and effect insurance applicable to the Business and the Assets comparable in amount and scope of coverage to that currently maintained; (vi) give written notice to the New Member as reasonably practicablesoon as is practicable of any written notice received or given by any member of the Sasol Group with respect to any alleged material violation or breach by any member of the Sasol Group or other Person of (A) any Material Contract, keep (B) any Easement or Business Permit, or (C) any Law, in each case, to the Purchaser fully informed in a timely manner on any and all matters (not of a routine nature) extent relating to the Asset; andCompany, the Assets, the Business or any Business Employee; (dvii) not to do or omit to do anything which would result in a breach give prompt written notice following receipt by any member of the Sasol Group of any of material Action initiated by, or written claim threatening a material Action, received from, any Person with respect to the Warranties given by it. 9.2 The Seller shall:transactions contemplated hereby or the Company, the Assets, the Business or any Business Employee; (aviii) notwith respect to Emergency Operations, except with notify the prior written approval New Member of such emergency and the Purchaser related Emergency Operations as soon as reasonably practicable (such approval not to be unreasonably withheld or delayed) amend or agree to amend any of the Asset Documents and in any event within one (1) Business Day following the occurrence thereof); (ix) give prompt notice to the New Member of (A) any material damage or any casualty to the Assets or any other assets material to the Business, (B) any written notice received or made by the Sasol Group in connection with any Insurance Policy (including with respect to any notice of potential claims or losses), or (C) any written notice received or made by the Sasol Group of any claim asserting any material tort or violation of Law or any new or threatened Action, that (in so far as such amendment or agreement to amend each case) relates to or affects the Asset Company, the Business or waive the Assets; (x) give prompt notice to the New Member of any notice or agree other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and (xi) give prompt notice to waive the New Member of any of its rights notice or remedies thereunder or arising therefrom other communication from any Governmental Authority in so far as such rights and remedies relate to or affect connection with the Asset;transactions contemplated by this Agreement. (b) If is considers in good faith that a particular matter or proposal is of a nature which may have an adverse effect on From the value Execution Date until the earlier of the AssetClosing or the termination of this Agreement in accordance with Article X, notify the Purchaser in writing, consult except (to the extent reasonably practicable1) with the Purchaser in relation to that matter or proposal, take account of any representation which the Purchaser as may make and, provided always that such action shall not be prejudicial to any of the Seller’s other business interest and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, carry out the wishes of the Purchaser in so far as it is reasonably practicable to do so following such consultation; and (c) As soon as reasonably practicable provide the Purchaser (to the extent it is contractually and legally permitted to do so) with details of any matter relating to or affecting the Asset on which the Seller is entitled to vote (a “Voting Matter”) and, prior to exercising its vote on a Voting Matter, consult (to the extent reasonably practicable) with the Purchaser in relation to the Voting Matter, take account of any representations which the Purchaser may make and provided always that such action shall not be prejudicial to any of the Seller’s other business interests and the Seller shall not be in breach of any contractual, legal, statutory or regulatory requirement whatsoever by doing so, exercise its voting rights in a manner which is not inconsistent with the Purchasers’ representations.required for Emergency Operations,

Appears in 1 contract

Samples: Membership Interest Purchase Agreement

Interim Period Operations. 9.1 Between the date hereof and Completion, the Seller Assignor shall (to the extent it is able so to do having regard to the provisions of the relevant Assignor Operating Agreement [Unit Agreement]):-Agreement):- (a) 9.1.1 continue to carry on its activities in relation to the Asset Assignor Assets in the ordinary and usual course so as to protect and maintain the same [in accordance with good oil field practice] and comply with previously agreed decisions of the Operating Committee in relation to the Assignor Assets; (b) 9.1.2 consult with the Purchaser Assignee with regard to the Asset Assignor Assets and co-operate operator with the Purchaser Assignee so as to ensure an efficient handover of the Asset Assignor Assets on Completion and use its reasonable endeavours to protect or procure the protection of the Asset Assignor Assets for the benefit of the PurchaserAssignee; (c) 9.1.3 insofar as reasonably practicable, keep the Purchaser Assignee fully informed in a timely manner on any and all matters (not of a routine nature) relating to the AssetAssignor Assets; and (d) 9.1.4 not to do or omit to do anything which would result in a breach of any of the Warranties given by it.. [NOTE: Additional provisions may be required] 9.2 The Seller Assignor shall: (a) 9.2.1 not, except where with the prior written approval of the Purchaser Assignee (such approval not to be unreasonably withheld or delayed) amend or agree to amend any of the Assignor Asset Documents in any respect in so far insofar as such amendment or agreement to amend relates to or affects the Asset Assignor Assets or waive or agree to waive any of its rights or remedies thereunder or arising therefrom in so far insofar as such rights and remedies relate to or affect the AssetAssignor Assets; (b) If 9.2.2 if it is considers considered in good faith that a particular matter or proposal is of a nature which may have an adverse effect on the value of the AssetAssignor Assets, notify the Purchaser Assignee in writing, consult (to the extent reasonably practicable) with the Purchaser Assignee in relation to that matter or proposal, take account of any representation which the Purchaser Assignee may make and, provided always that such action shall not be prejudicial prejudiced to any of the SellerAssignor’s other business interest and the Seller Assignor shall not be in breach of any contractual, legal, statutory or regulatory requirement requirements whatsoever by doing so, carry out the wishes of the Purchaser in so far Assignee insofar as it is reasonably practicable to do so following such consultation; and (c) As 9.2.3 as soon as reasonably practicable provide the Purchaser Assignee (to the extent it is contractually and legally permitted to do so) with details of any matter relating to or affecting the Asset Assignor Assets on which the Seller Assignor is entitled to vote (a “Voting Matter”) and, prior to exercising its vote on a Voting Matter, consult (to the extent reasonably practicable) with the Purchaser Assignee in relation to the Voting Matter, take account of any representations which the Purchaser Assignee may make and provided always that such action shall not be prejudicial to any of the SellerAssignor’s other business interests and the Seller Assignor shall not be in breach of any contractual, legal, statutory or regulatory requirement requirements whatsoever by doing so, exercise its voting rights in a manner which is not inconsistent with the Purchasers’ Assignee’s representations.

Appears in 1 contract

Samples: Exchange Agreement

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