Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Sellers will not, without the prior written consent of Buyer (which will not be unreasonably withheld, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actions: (a) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests of any class or any other securities or equity equivalents in any Company; (b) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Company; (c) other than any of the following that will terminate at Closing, (i) create, incur, guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person; (iii) pledge or otherwise encumber the Interests or other equity securities of any Company; or (iv) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assets; (d) (i) enter into, adopt, or (except as may be required by Applicable Laws) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any director, officer, or employee; (ii) increase in any manner the compensation or fringe benefits of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (e) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons in the Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14; (f) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof; (g) enter into any lease, contract, agreement, commitment, arrangement, right of way, easement or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreement; (h) amend, modify, extend or change, or waive, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement; (i) declare any dividends or distributions that are payable after the Effective Time; (j) enter into, amend, modify, extend or change any Seller Xxxxxx; or (k) agree in writing or otherwise to take any of the actions described in this Section 7.2.
Appears in 1 contract
Samples: Partnership Interest Purchase and Sale Agreement (Crosstex Energy Lp)
Restrictions on Certain Actions. Without limiting the generality of the foregoingSection 6.1, and except as otherwise expressly provided set forth in this AgreementSchedule 6.2, prior to during the period between the date hereof and the Closing, Sellers will notSeller shall use commercially reasonable efforts to not permit any Acquired Company, without the prior written consent of Buyer (Buyers, which will consent shall not be unreasonably withheld, delayed delayed, or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsto:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents in equivalents; or (ii) amend any Companyof the terms of any such securities outstanding as of the date hereof;
(bc) (i) split, combine, or reclassify any shares of its capital stock or other equity interests; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or other equity interests; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired Company;
(cd) other than any except in the ordinary course of the following that will terminate at Closingbusiness consistent with past practice, (i) create, incur, guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person; (iii) pledge or otherwise encumber the Interests or other equity securities of any Company; or (iv) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assets;
(de) (i) enter intoexcept for normal increases in the ordinary course of business consistent with past practice that, adoptin the aggregate, do not result in a material increase in benefits or (except compensation expense to the Acquired Companies, taken as may be required by Applicable Laws) amend a whole, increase the benefits or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of compensation to any director, officer, or employee; (ii) increase in any manner employee of the compensation or fringe benefits of any director, officer, or employeeAcquired Companies; or (iiiii) pay to any director, officer, or employee of the Acquired Companies any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(ef) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or allow its Affiliates to do any assets having a value of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons $5,000,000 or more in the Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14aggregate;
(fg) acquire (by merger, consolidation, or acquisition of stock or assets assets, or otherwise) any corporation, partnership, or other business organization or division thereof;
(gh) enter into make any leasecapital expenditure or expenditures in excess of the existing capital expenditures budget approved by the management committee of GLGTLP, contract, agreement, commitment, arrangement, right of way, easement except for reasonable expenditures made by any Acquired Company in connection with any emergency or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction other force majeure events affecting such Acquired Company;
(i) which grants or creates any optionpay, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreementdischarge, or satisfy any material claims, liabilities, or obligations (iv) enter into any contractwhether accrued, agreement absolute, contingent, unliquidated or understanding with Seller otherwise, and whether asserted or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consentunasserted), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less other than the previous agreementpayment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the GLGTCO Financial Statements or GLGTLP Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice;
(hj) amend, modify, extend or changechange in any material respect any Scheduled Contract, or waive, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters enter into any of the foregoing described in this Section 7.2(h) if (A) the structure of such new agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement or contract that would constitute a different structure and would require Buyer’s consent)Scheduled Contract, and (B) except to the margin extent Seller reasonably expected believes that the Acquired Companies are required to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare any dividends or distributions that are payable after the Effective Time;
(j) enter into, amend, modify, extend or change any Seller Xxxxxx; orScheduled Contract, or enter into any new agreement or contract that would constitute a Scheduled Contract, in order to comply with obligations under the Scheduled Contracts existing as of the date hereof or to comply with Applicable Laws, including a regulation of or tariff filed with FERC or the MPSC;
(k) agree change in writing or otherwise to take any material respect any of the actions described accounting principles or practices used by it, except for any change required by reason of a concurrent change in this U.S. GAAP;
(l) other than filings related to the capital expenditures permitted by Section 7.26.2(h), make any material filings or submit any material document or material information to FERC, the MPSC, or any other permitting or regulatory agency; or (m) commit or otherwise agree to do any of the foregoing.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior during the period from the date of this Agreement to the ClosingClosing Date, Sellers will notthe Company has not taken and shall not take, consent to or allow, nor shall Seller cause or allow the Company to take or consent to, any of the following actions, without the prior written consent of Buyer (which will consent shall not be unreasonably withheld, delayed conditioned or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actions:delayed):
(a) amend the applicable Governing Documents;
(b) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership membership interests of any class or any other securities or equity equivalents in any the Company;
(bc) (i) declare, set aside, or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of its membership interests; (ii) repurchase, redeem, or otherwise acquire any of its securities; or (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization or winding up of any the Company;
(cd) other than any of the following that will terminate at Closing, (i) except for loans under the Credit Facilities and intercompany loans from or to the Company or its Affiliates in the ordinary course of business that will be eliminated at or prior to Closing, create, incur, guarantee, or assume any indebtedness for borrowed money Indebtedness or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person; (iii) pledge or otherwise encumber shares of membership interests of the Interests or other equity securities of any Company; or (iv) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than except for Permitted Liens) or on the Assigned Assets);
(de) except as in connection with the releases contemplated by Section 7.8 or in the ordinary course of business, (i) enter into, adopt, or (except as may be required by Applicable LawsLaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any director, officer, manager or employeeofficer or Employee; (ii) increase in any manner the compensation or fringe benefits of any director, officer, manager or employeeofficer or Employee; or (iii) pay to any director, officer, manager or employee officer or Employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(ef) hire or engage any employee of the Company (as employer);
(g) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assetsassets, except for (i) sales of Hydrocarbons entering into right-of-way agreements, easements, or options in the Ordinary Course ordinary course of Businessbusiness, and (ii) sales to Persons other than Sellers or their Affiliates exchanges of inventory and excess or obsolete assets in the Ordinary Course ordinary course of Business business or personal property in the Ordinary Course ordinary course of Business business that is either replaced by equivalent property or assets or normally consumed in the operation of that the Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14business;
(fh) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(gi) except for any capital expenditures related to (i) the construction of pipeline or facilities associated therewith or the attainment of easements, rights-of-way, or options in the ordinary course of business, or (ii) an Emergency, make any single capital expenditure which individually is in excess of One Million Dollars ($1,000,000);
(j) pay, discharge, or satisfy any claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms and the payment of any fee to terminate the Credit Facilities;
(k) enter into any lease, contract, agreement, commitment, arrangement, right of right-of-way, easement or transaction outside the Ordinary Course of Businesseasement, or any lease, contract, agreement, commitment, arrangementoption, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreementContract;
(hl) amend, modify, extend or change, or waive, release, grant, close out or transfer change in any material rights under, respect any Company Contract; provided that Buyer’s consent is not required if a Company enters into ;
(m) change any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (Tax or accounting principles or practices used by it, except for example, modifying the agreement to be a transportation agreement instead any change required by reason of a purchase/sale agreement would constitute a different structure concurrent change in GAAP and would require notice of which is given in writing by the Company to Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare any dividends or distributions that are payable after the Effective Time;
(j) enter into, amend, modify, extend or change any Seller Xxxxxx; or
(kn) authorize or propose, or agree in writing or otherwise to take take, any of the actions described in this Section 7.27.6.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Penn Virginia Resource Partners L P)
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Sellers will the Company shall not, without the prior written consent of Buyer (which will not be unreasonably withheld, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsParent:
(a) amend its charter or bylaws;
(b) (i) issue, sell, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents equivalents; or (ii) amend in any Companyrespect any of the terms of any such securities outstanding as of the date hereof;
(bi) split, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, recapitalization or other reorganization of any the Company;
(c) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, create, incur, guarantee, guarantee or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Personperson; (iii) pledge or otherwise encumber shares of capital stock of the Interests or other equity securities of any Company; or (iv) except in the ordinary course of business consistent with past practice, mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assetslien thereupon;
(d) (i) enter into, adopt, adopt or (except as may be required by Applicable Lawslaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, severance or other employee benefit agreement, trust, plan, fund, fund or other arrangement for the benefit or welfare of any director, officer, officer or employee; ;
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, increase in any manner the compensation or fringe benefits of any director, officer, officer or employee; or (iii) pay to any director, officer, officer or employee any benefit not required by any employee benefit agreement, trust, plan, fund, fund or other arrangement as in effect on the date hereof;
(ef) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons assets that in the Ordinary Course of Business, (ii) sales aggregate are material to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14;
(fg) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(g) enter into any lease, contract, agreement, commitment, arrangement, right of way, easement or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreement;
(h) amendmake any capital expenditure or expenditures which, modifyindividually, extend or changeis in excess of $25,000 or, or waivein the aggregate, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any are in excess of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement250,000;
(i) declare make any dividends Tax election or distributions that are payable after the Effective Timesettle or compromise any federal, state, local or foreign Tax liability;
(j) enter intopay, amenddischarge or satisfy any claims, modifyliabilities or obligations (whether accrued, extend absolute, contingent, unliquidated or change any Seller Xxxxxx; or
(k) agree in writing otherwise, and whether asserted or otherwise to take any of unasserted), other than the actions described in this Section 7.2.payment,
Appears in 1 contract
Samples: Stock Acquisition Agreement and Plan of Merger (Crescent Operating Inc)
Restrictions on Certain Actions. Without limiting the generality of the foregoingSection 5.8, and except as required by Applicable Law or as otherwise expressly provided in this Agreement, prior to the Closing, Sellers will notthe Seller shall not permit the Company, without the prior written consent of the Buyer (which will consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsto:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents equivalents; or (ii) amend in any Companyrespect any of the terms of any such securities outstanding as of the date hereof;
(bc) (i) split, combine or reclassify any shares of its capital stock; (ii) repurchase, redeem or otherwise acquire any of its securities; or (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, recapitalization or other reorganization of any the Company;
(cd) other than any of the following that will terminate at Closing, (i) create, incur, guarantee, guarantee or assume any indebtedness for borrowed money Indebtedness or otherwise become liable or responsible for the obligations of any other Personperson or entity, except for obligations to or of NBPC, NBP or NBILP; (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person; (iii) pledge person or otherwise encumber the Interests or other equity securities of any Companyentity; or (iviii) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assets;
(d) (i) enter into, adopt, or (except as may be required by Applicable Laws) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any director, officer, or employee; (ii) increase in any manner the compensation or fringe benefits of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereofEncumbrance thereupon;
(e) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any outside the ordinary course of the foregoing business consistent with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons in the Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14past practice;
(f) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(g) enter into make any lease, contract, agreement, commitment, arrangement, right of way, easement capital expenditure or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction expenditures (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any contributions that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not may be required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreementmade to NBP or NBILP);
(h) amendpay, modify, extend or changedischarge, or waivesatisfy any claims, releaseliabilities or obligations (whether accrued, grantabsolute, close out contingent, unliquidated or transfer any material rights underotherwise, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consentwhether asserted or unasserted), and (B) other than the margin reasonably expected to be generated under any payment, discharge or satisfaction in the ordinary course of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangementbusiness consistent with past practice;
(i) declare enter into any dividends material natural gas or distributions that are payable after the Effective Timeother futures or options trading agreement or any price swaps, xxxxxx, futures or similar material instruments;
(j) make any payment or distribution under any Tax sharing or other similar arrangement;
(k) make any payment, dividend or other distribution to its shareholders;
(l) enter into, amendor permit to be entered into, modifyany closing or other agreement or settlement with respect to Taxes affecting or relating to the Company, extend other than Taxes in respect of which the Company joins in a consolidated, unitary or change other combined group and such group is not controlled by Seller Parent;
(m) pursuant to or within the meaning of the title 11 the United States Code, as amended, or any Seller Xxxxxxsimilar federal, state or foreign law for the relief of debtors, commence a voluntary case, consent to the entry of an order for relief in an involuntary case, consent to the appointment of a receiver, trustee, assignee, liquidator or similar official of it or for all or any portion of its property or assets, or make a general assignment for the benefit of creditors; or
(kn) agree in writing commit or otherwise agree to take do any of the actions described foregoing; provided, however, that notwithstanding the foregoing, the Company shall be permitted to declare a dividend, return of capital or other distribution or repayment to the Seller or the Seller Parent in this accordance with Section 7.25.7.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Sellers will the Company shall not, without the prior written consent of Buyer (which will not be unreasonably withheld, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsBuyer:
(a) amend its charter or bylaws;
(i) issue, sell, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, purchase or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents or (ii) amend in any Companyrespect any of the terms of any such securities outstanding as of the date hereof;
(bi) split, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, recapitalization or other reorganization of any the Company;
(c) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, create, incur, guarantee, guarantee or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Personperson; (iii) pledge or otherwise encumber shares of capital stock of the Interests or other equity securities of any Company; Company or (iv) except in the ordinary course of business consistent with past practice, mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assetslien thereupon;
(d) (i) enter into, adopt, adopt or (except as may be required by Applicable Lawslaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, fund or other arrangement for the benefit or welfare of any director, officer, officer or employee; (ii) increase in any manner the compensation or fringe benefits of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(e) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons normal increases in the Ordinary Course ordinary course of Businessbusiness consistent with past practice that, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14;
(f) acquire (by mergeraggregate, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(g) enter into any lease, contract, agreement, commitment, arrangement, right of way, easement or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreement;
(h) amend, modify, extend or change, or waive, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare any dividends or distributions that are payable after the Effective Time;
(j) enter into, amend, modify, extend or change any Seller Xxxxxx; or
(k) agree in writing or otherwise to take any of the actions described in this Section 7.2.do
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of the foregoing, -------------------------------
Section 6.1 and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Sellers will notSeller shall not permit any Acquired Company, without the prior written consent of Buyer (which will not be unreasonably withheldBuyer, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsto:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents in equivalents; or (ii) amend any Companyof the terms of any such securities outstanding as of the date hereof;
(bi) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired Company;
(c) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other PersonPerson (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); or (iii) pledge or otherwise encumber the Interests or other equity securities of any Company; or (iv) mortgage mortgage, or pledge any of its material assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assetsmaterial lien thereupon;
(d) (i) enter into, adopt, or (except as may be required by Applicable Laws) amend Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, severance or other employee benefit agreement, trust, plan, fund, fund or other arrangement for the benefit or welfare of any director, officer, officer or employee; ;
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation or fringe benefits of to any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not required permitted by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(ef) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons assets that in the Ordinary Course of Business, (ii) sales aggregate are material to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14Acquired Companies considered as a whole;
(fg) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(gh) enter into make any leasecapital expenditure or expenditures, contractwhich, agreementindividually, commitmentis in excess of $500,000 or, arrangementin the aggregate, right are in excess of way$2,500,000, easement or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction except (i) which grants or creates for any optioncapital expenditure made for the items described in Schedule 6.2(h), right of first refusal, call, put and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other preferential right force majeure events affecting such Acquired Company;
(i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in favor the ordinary course of any third Personbusiness consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) for the purchasesettlement of any Proceeding to the extent contemplated in Section 6.2(l), sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, -------------- (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of Acquired Companies may continue to pursue and prosecute the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure Pending FERC and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreementRRC Proceedings;
(hj) amend, modify, extend or change, or waive, release, grant, close out or transfer change in any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
respect (i) declare any dividends Commercial Contract that had revenues of $5,000,000 or distributions more in calendar year 1999 and that are payable after the Effective Time;
as of December 31, 1999 had a remaining term of 1 year or greater or (jii) enter into, amend, modify, extend any contract or change any Seller Xxxxxxagreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; or------------
(k) agree change in writing or otherwise to take any material respect any of the actions accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and
(l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters described in this Section 7.2Schedule 6.2(l) and subject to --------------- the limitation set forth therein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pacific Gas & Electric Co)
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except Except as otherwise expressly provided in this AgreementAgreement (including without limitation Sections 10.3, 10.4, 10.5 and 10.7), prior to the ClosingEffective Time, Sellers will such Subject Partnership (including, in the case of RRC, and to the extent applicable, with respect to or affecting the Unaffiliated ORRI) shall not, without the prior written consent of Buyer (the other two Subject Partnerships, which will consent shall not be unreasonably withheld, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actions:
(a) issueamend its certificate of partnership, sell, partnership agreement or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests of any class or any other securities or equity equivalents in any Companysimilar governing documents;
(b) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Company;
(c) other than any of the following that will terminate at Closing, (i) create, incur, guarantee, guarantee or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; person in an aggregate amount in excess of $100,000, (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person; person, or (iii) pledge or otherwise encumber the Interests or other equity securities of any Company; or (iv) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any Lien material lien thereupon (except for statutory liens (including materialmen's, mechanic's, repairmen's, landlord's and other than Permitted Lienssimilar liens) or on arising in connection with the Assigned Assetsordinary course of business securing payments not yet due and payable or, if due and payable, the validity of which is being contested in good faith by appropriate legal proceedings and for which adequate reserves have been set aside);
(dc) (i) enter into, adopt, adopt or (except as may be required by Applicable Lawslaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, severance or other employee benefit agreement, trust, plan, fund, fund or other arrangement for the benefit or welfare of any director, officer, officer or employee; , (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to such Subject Partnership, increase in any manner the compensation or fringe benefits of any director, officer, officer or employee; employee of such Subject Partnership or (iii) pay to any director, officer, officer or employee of such Subject Partnership any benefit not required by any employee benefit agreement, trust, plan, fund, fund or other arrangement as in effect on the date hereof;
(ed) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for other than those which are (ix) sales of Hydrocarbons in the Ordinary Course ordinary course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business consistent with past practice and (iiiy) the sale in any individual transaction (or other disposition series of the Excluded Assets pursuant to Section 8.14related transactions) are less than $100,000;
(fe) acquire (by merger, consolidation, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(f) make any capital expenditure or expenditures which, individually, is in excess of $100,000;
(g) pay, discharge or satisfy any claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements of such Subject Partnership, or incurred since the date of the Latest Balance Sheet of such Subject Partnership in the ordinary course of business consistent with past practice;
(h) enter into any material lease, contract, agreement, commitment, arrangement, right of way, easement arrangement or transaction outside the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(i) amend, modify, or change in any material respect any existing lease, contract, or agreement, commitmentother than in the ordinary course of business consistent with past practice;
(j) change any of the accounting principles or practices used by it, arrangementexcept for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by such Subject Partnership to the other two Subject Partnerships;
(k) waive, release, grant, or transaction transfer any rights of value, other than in the ordinary course of business consistent with past practice;
(il) which grants take any action that would, or creates that reasonably could be expected to, result in any optionof the representations and warranties of such Subject Partnership set forth in this Agreement becoming untrue or any material breach of this Agreement; 44
(m) enter into any hedging, right of first refusalswap, call, put fixed price sale or other preferential right in favor of any third Person, purchase (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii90 days) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreementother derivative contract;
(hn) amend, modify, extend accelerate collection of any notes or change, accounts receivable generated by the Subject Partnership or waive, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any its business by using collections efforts beyond what would have been used in the ordinary course of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangementbusiness;
(io) declare delay payment of any dividends account payable or distributions that are payable after other liability of such Subject Partnership relating to its business beyond its due date or the Effective Time;
(j) enter into, amend, modify, extend or change any Seller Xxxxxxdate when such liability would have been paid in the ordinary course of the Subject Partnership's business consistent with past practice; or
(kp) authorize or propose, or agree in writing or otherwise to take take, any of the actions described in this Section 7.210.2.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Sellers will notno Company shall, without the prior written consent of Buyer (which will not be unreasonably withheld, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsBuyer:
(a) amend its charter or bylaws;
(i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents equivalents; or (ii) amend in any Companyrespect any of the terms of any such securities outstanding as of the date hereof;
(bi) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside, or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem, or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Company;
(c) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, create, incur, guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, or capital contributions to, or investments in, any other Personperson; (iii) pledge or otherwise encumber the Interests or other equity securities shares of capital stock of any Company; or (iv) except in the ordinary course of business consistent with past practice, mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assetslien thereupon;
(d) (i) enter into, adopt, or (except as may be required by Applicable Lawslaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any director, officer, or employee; ,
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to any Company, increase in any manner the compensation or fringe benefits of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(ef) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or allow its Affiliates to do any of assets that in the foregoing with respect aggregate are material to any of the Assigned Assets, except for (i) sales of Hydrocarbons in the Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14;
(fg) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(gh) make any capital expenditure or expenditures which, individually, is in excess of $25,000 or, in the aggregate, are in excess of $250,000;
(i) make any Tax election or settle or compromise any federal, state, local, or foreign Tax liability;
(j) pay, discharge, or satisfy any claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the HEC Latest Balance Sheet and the L&H Latest Balance Sheet or incurred since October 31, 1997 in the ordinary course of business consistent with past practice; provided, however, that in no event shall any Company repay any long-term indebtedness except to the extent required by the terms thereof;
(k) enter into any lease, contract, agreement, commitment, arrangement, right of way, easement or transaction outside the Ordinary Course ordinary course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding business consistent with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreementpast practice;
(hl) amend, modify, extend or changechange any existing lease, contract, or agreement, other than in the ordinary course of business consistent with past practice;
(m) waive, release, grant, close out or transfer any material rights underof value, other than in the ordinary course of business consistent with past practice;
(n) lay off any Company Contract; provided that Buyer’s consent is not required if a Company enters into of its employees;
(o) change any of its banking or safe deposit arrangements;
(p) change any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (accounting principles or practices used by it, except for example, modifying the agreement to be a transportation agreement instead any change required by reason of a purchase/sale agreement concurrent change in generally accepted accounting principles and notice of which is given in writing by each Company to Buyer;
(q) take any action which would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under or might make any of the foregoing described representations or warranties of Sellers or any Company contained in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare Agreement untrue or inaccurate as of any dividends time from the date of this Agreement to the Closing or distributions that are payable after would or might result in any of the Effective Time;
(j) enter into, amend, modify, extend or change any Seller Xxxxxxconditions set forth in this Agreement not being satisfied; or
(kr) authorize or propose, or agree in writing or otherwise to take take, any of the actions described in this Section 7.2Section.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to Agreement or disclosed in Section 7.2 of the Closing, Sellers will notSellers’ Disclosure Schedule, without the prior written consent of Buyer (which will Buyer, prior to the Closing Sellers shall not be unreasonably withheldsell, delayed distribute or conditioned)otherwise transfer any of the Interests, amend pledge or otherwise encumber any of the Governing Documents Interests, or directly or indirectly terminate or permit the termination of any Company or allow NDA, and the Sellers shall not permit any Acquired Company to take, consent to or allow any of the following actions:
(a) amend its Governing Documents;
(b) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests of any class or any other securities or equity equivalents in any CompanyEquity Interest;
(bc) sell, distribute or otherwise transfer any Asset or the Ivory LP Interest, except for Hydrocarbons sold in the ordinary course of business consistent with past practice;
(d) (i) declare, set aside, or pay any dividend or other distribution in respect of its Equity Interests (other than a distribution of cash); (ii) repurchase, redeem, or otherwise acquire any of its Equity Interests; or (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Companyreorganization;
(ce) other than any of the following that will terminate at Closing, (i) create, incur, guarantee, create or assume incur any indebtedness for borrowed money money, or guarantee, assume or otherwise become liable or responsible for the obligations any indebtedness for borrowed money of any other Personperson; (ii) make any loans, advances, or capital contributions to, or investments in, any other Personperson; (iii) permit the pledge or otherwise encumber the Interests or other equity securities encumbrance of any Companyof its Equity Interests; or (iv) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assets;
(d) (i) enter into, adopt, or (except as may be required by Applicable Laws) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any director, officer, or employee; (ii) increase in any manner the compensation or fringe benefits of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(e) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons Permitted Encumbrances arising in the Ordinary Course ordinary course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14consistent with past practice);
(f) hire any employee;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(gi) amend any Tax Return or settle or compromise any Tax liability or enter into any lease, contract, agreement, commitment, arrangement, right of way, easement agreement or transaction outside the Ordinary Course of Business, or preliminary settlement with any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, Taxing authority concerning Taxes; (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for make or change any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive ClosingTax election; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) file with, or provide to, any Taxing authority any waiver extending the statutory period for assessment or reassessment of this Section 7.2(g) if (A) the structure Taxes or any other waiver of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreementrestrictions on assessment or collection of any Taxes;
(hi) pay, discharge, or satisfy any claim or other Liability, other than the payment, discharge, or satisfaction for cash, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in the Unaudited Financial Statements or incurred in the ordinary course of business consistent with past practice;
(j) amend, modify, extend or change, or waive, release, grant, close out or transfer change in any material rights under, respect any Company Contract; provided provided, that Buyer’s consent is not required if a Company enters into any of the foregoing described nothing in this Section 7.2(h7.2 shall prohibit Company from entering into Xxxxxx (which, if entered into will be terminated at or prior to Closing) if (A) or terminating or novating the structure of such agreement is not substantially changed (for example, modifying the agreement Existing Xxxxxx at or prior to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare any dividends or distributions that are payable after the Effective Time;
(j) enter into, amend, modify, extend or change any Seller XxxxxxClosing; or
(k) authorize or propose, or agree in writing or otherwise to take take, any of the actions described in this Section 7.2.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Eagle Rock Energy Partners L P)
Restrictions on Certain Actions. Without limiting the generality of the foregoingSection 6.1, and except as otherwise expressly provided set forth in this AgreementSchedule 6.2, prior to during the period between the date hereof and the Closing, Sellers will notSeller shall use commercially reasonable efforts to not permit any Acquired Company, without the prior written consent of Buyer (Buyers, which will consent shall not be unreasonably withheld, delayed delayed, or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actionsto:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of its capital stock of any class or any other securities or equity equivalents in equivalents; or (ii) amend any Companyof the terms of any such securities outstanding as of the date hereof;
(bc) (i) split, combine, or reclassify any shares of its capital stock or other equity interests; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or other equity interests; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired Company;
(cd) other than any except in the ordinary course of the following that will terminate at Closingbusiness consistent with past practice, (i) create, incur, guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person; (iii) pledge or otherwise encumber the Interests or other equity securities of any Company; or (iv) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assets;
(de) (i) enter intoexcept for normal increases in the ordinary course of business consistent with past practice that, adoptin the aggregate, do not result in a material increase in benefits or (except compensation expense to the Acquired Companies, taken as may be required by Applicable Laws) amend a whole, increase the benefits or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of compensation to any director, officer, or employeeemployee of the Acquired Companies; (ii) increase in any manner the compensation or fringe benefits of any director, officer, or employee; or (iii) pay to any director, officer, or employee of the Acquired Companies any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; or (iii) hire, terminate without cause, or transfer any Employee;
(ef) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or allow its Affiliates to do any assets having a value of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons $5,000,000 or more in the Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14aggregate;
(fg) acquire (by merger, consolidation, or acquisition of stock or assets assets, or otherwise) any corporation, partnership, or other business organization or division thereof;
(gh) enter into make any leasecapital expenditure or expenditures in excess of the existing capital expenditures budget approved by the management committee of GLGTLP, contract, agreement, commitment, arrangement, right of way, easement except for reasonable expenditures made by any Acquired Company in connection with any emergency or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction other force majeure events affecting such Acquired Company;
(i) which grants or creates any optionpay, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreementdischarge, or satisfy any material claims, liabilities, or obligations (iv) enter into any contractwhether accrued, agreement absolute, contingent, unliquidated or understanding with Seller otherwise, and whether asserted or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consentunasserted), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less other than the previous agreementpayment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the GLGTCO Financial Statements or GLGTLP Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice;
(hj) amend, modify, extend or changechange in any material respect any Scheduled Contract, or waive, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters enter into any of the foregoing described in this Section 7.2(h) if (A) the structure of such new agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement or contract that would constitute a different structure and would require Buyer’s consent)Scheduled Contract, and (B) except to the margin extent Seller reasonably expected believes that the Acquired Companies are required to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare any dividends or distributions that are payable after the Effective Time;
(j) enter into, amend, modify, extend or change any Seller Xxxxxx; orScheduled Contract, or enter into any new agreement or contract that would constitute a Scheduled Contract, in order to comply with obligations under the Scheduled Contracts existing as of the date hereof or to comply with Applicable Laws, including a regulation of or tariff filed with FERC or the MPSC;
(k) agree change in writing or otherwise to take any material respect any of the actions described accounting principles or practices used by it, except for any change required by reason of a concurrent change in this U.S. GAAP;
(l) other than filings related to the capital expenditures permitted by Section 7.26.2(h), make any material filings or submit any material document or material information to FERC, the MPSC, or any other permitting or regulatory agency; or (m) commit or otherwise agree to do any of the foregoing.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this AgreementAgreement or described on Section 6.2 of the Disclosure Schedule, prior to the Closing, Sellers no Company will, nor will notSeller cause any Company to, without the prior written consent of Buyer (which will not be unreasonably withheld, delayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actions:
(a) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any partnership interests shares of stock of any class or any other securities or equity equivalents in any Company;
(b) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Company;
(c) other than any of the following that will terminate at Closing, (i) create, incur, guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person; (iii) pledge or otherwise encumber the Interests Subsidiary Stock or other equity securities of any Company; or (iv) mortgage or pledge any of its assetsAssets, tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted Liens) or on the Assigned Assets);
(d) (i) enter into, adopt, or (except as may be required by Applicable Laws) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any director, officer, or employee; (ii) increase in any manner the compensation or fringe benefits of any director, officer, or employee, other than increases made in the Ordinary Course of Business; or (iii) pay to any director, officer, or employee any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof, except as set forth on Section 6.2 of the Disclosure Schedule;
(e) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets or allow its Affiliates to do any of the foregoing with respect to any of the Assigned Assets, except for (i) sales of Hydrocarbons in the Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Ordinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14or the Excluded Companies;
(f) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(g) enter into any lease, contract, agreement, commitment, arrangement, right of way, easement or transaction outside the Ordinary Course of Business, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 twelve (12) months, (iii) except for any that terminate at Closing, which would constitute a Company Contract if in existence on the date of this Agreement, Agreement (except for any that terminate at Closing) or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in subsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreement;
(h) amend, modify, extend or change, or waive, release, grant, close out or transfer any material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any of the foregoing described in this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such arrangement;
(i) declare any dividends or distributions that are payable after the Effective Time;
Time (j) enter into, amend, modify, extend provided that nothing contained in this Section 6.2 or change elsewhere in this Agreement shall prohibit Seller or any Seller XxxxxxCompany from declaring any cash dividends or cash distributions that are payable prior to the Effective Time or otherwise withdrawing cash from the Companies); or
(kj) agree in writing or otherwise to take any of the actions described in this Section 7.26.2.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Crosstex Energy Lp)
