Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to: (i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects; (ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge; (iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006; (iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and (v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities. (b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to: (i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets; (ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date); (iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies); (iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv); (v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person; (vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person; (vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company; (viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations; (ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes; (x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws; (xi) implement any layoff of employees that could implicate the WARN Act; (xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business (xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000; (xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets; (xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date; (xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area; (xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit; (xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000; (xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices; (xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000; (xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year; (xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000; (xxiv) enter into any speculative energy or fuel transactions; (xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO; (xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); (xxvii) amend or modify its Charter Documents; or (xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (US Power Generating CO), Purchase and Sale Agreement (Reliant Energy Inc)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02From the date hereof until the Closing Date, during each of the Interim Period, Seller will cause Sellers and the Companies toCompany will:
(i) operate carry on its business in substantially the Facilities same manner as it has heretofore and not introduce any material new method of management, operation or accounting;
(ii) maintain its properties and facilities, including those held under leases, in as good working order and condition as at present, ordinary wear and tear excepted;
(iii) perform all its obligations under all material written and oral agreements relating to or affecting its business, assets or rights, including the timely payment of all amounts due to Governmental Authorities, suppliers and other vendors;
(iv) maintain in full force and effect without interruption (or replace with equivalent insurance) all its present insurance policies;
(v) use reasonable commercial efforts to (i) maintain and preserve its business organization intact, (ii) retain the services of its present employees and (iii) maintain its relationships with all Governmental Authorities, including, but not limited to, Accreditation Authorities, suppliers, customers and others having business relations with it;
(vi) comply with all applicable Governmental Requirements and provide notice of any governmental inquiry, notice or investigation; and
(vii) except as required or expressly permitted by this Agreement, maintain leases on their present terms and not incur new or amended Indebtedness or enter into new or amended lease instruments or agreements without the prior written consent of Buyer.
(b) From the date hereof and until the Closing Date, without the prior written consent of Buyer or unless as required or expressly permitted by this Agreement, none of the Sellers or the Company will:
(i) nor Shareholders will, make any change in its Charter Documents;
(ii) nor Shareholders will, issue any of its Capital Stock or issue or otherwise create any options, warrants or rights to acquire any of its Capital Stock;
(iii) make any Restricted Payment;
(iv) pay to, or on behalf of, the Seller Parties any (y) compensation in excess of the rate of compensation payable to the Seller Parties as set forth on Schedule 4.26(a) or (z) any other payment of any kind whatsoever;
(v) make any investments (other than short-term certificates of deposit of a commercial bank or trust company) in the Capital Stock (or options, warrants or rights to acquire the Capital Stock) or Indebtedness of any Person;
(vi) enter into any agreement or commitment or incur, or agree to incur any liability or make any capital payment or expenditure of any kind otherwise than in the ordinary course of its business and consistent with its past practice;
(vii) increase or commit or promise to increase the cash compensation payable or to become payable to any of its officers, directors, stockholders, employees or agents, consultants or independent contractors or make any discretionary bonus or management fee payment to any such Person;
(viii) create, assume or permit to be created or imposed any Liens upon any of its assets or properties, whether now owned or hereafter acquired other than purchase money security interests for equipment used in the ordinary course of business consistent with past practices in all material respectsprior practice and with respect to which equipment the monthly expenditures do not exceed one thousand dollars ($1,000.00).
(ix) (y) adopt, establish, amend or terminate any of its Employee Benefit Plans, or any Other Compensation Plans or Employee Policies and Procedures or (z) take any discretionary action, or omit to take any contractually required action, if that action or omission could either (A) deplete the assets of any of its Employee Benefit Plans or any Other Compensation Plan or (B) increase the liabilities or obligations under any such plan;
(iix) promptly notify Buyer sell, assign, lease or otherwise transfer or dispose of any breach of any representation, warranty, covenant its owned or agreement of Seller made hereunder leased property or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other equipment otherwise than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of its business and consistent with its past practices which will be fully performed prior to the Closing without further liability to the Companies);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Lawspractice;
(xi) implement negotiate for the acquisition of any layoff business or the start-up of employees that could implicate the WARN Actany new business;
(xii) enter into Shareholders will, merge, consolidate or effect a share exchange with, or agree to merge, consolidate or effect a share exchange with any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of businessother Entity;
(xiii) enter into waive any settlementof its material rights or claims, conciliation or similar agreement, provided that it may negotiate and adjust bills in the performance course of which will involve payment after the execution of this Agreement of consideration good faith disputes with customers in excess of $1,000,000a manner consistent with past practice;
(xiv) except in commit a breach of, or amend or terminate any Material Agreement to which it is a party including, but not limited to, the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose terms of any of the material Purchased Assetspayable or receivable and any agreement with an investor or supplier;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Persontransaction that is not in the ordinary course of its business and consistent with its past practice or that is prohibited hereby;
(xvi) nor Shareholders will, make or revoke any material change Tax election respecting the Sellers, or take any action which results, or could result, in its accounting principles, methods a termination of the status of any of the Sellers as a "Subchapter S" corporation within the meaning of Section 1361 of the Code or policies, except the status of any Company Subsidiary as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on a qualified Subchapter S subsidiary for purposes of Section 1361(b)(5) of the Execution DateCode;
(xvii) enter into nor Seller Parties will, except as otherwise expressly consented to, in writing, by ▇▇▇▇▇▇▇, from the date of this Agreement until the Closing Date, directly or indirectly purchase or sell (including short sales) any Contract that restrains, restricts, limits shares of the capital stock of ▇▇▇▇▇▇▇ or impedes the ability of a Facility to conduct any business or line of business its Affiliates in any geographic area;transactions effected on The Nasdaq Stock Market or otherwise; or
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive take any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date action that would cause the Company to cease to be classified as a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except partnership for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsfederal tax purposes.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Steiner Leisure LTD), Asset Purchase Agreement
Conduct of Business Pending the Closing. (a) Except The Company agrees that between the date of this Agreement and the Effective Time, except as otherwise contemplated by set forth in Section 5.1(a) of the Company Disclosure Letter and except for any actions required under this Agreement or set forth as required by applicable Law or the regulations or requirements of the Nasdaq Stock Market, unless Parent shall otherwise agree in Schedule 6.02writing, during the Interim PeriodCompany will, Seller and will cause the Companies each Company Subsidiary to:
(i) operate carry on its business only in the Facilities usual and their ordinary course of business in substantially the same manner as heretofore conducted;
(ii) pay its Taxes when due, except when the failure to do so would not individually or in the aggregate reasonably be expected to result in a fine or penalty;
(iii) pay and perform other obligations when due, except when the failure to do so would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect;
(iv) use its reasonable best efforts consistent with past practice and policies to preserve substantially intact its present business organization;
(v) use reasonable best efforts to keep available the services of its current officers and other key employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, distributors, resellers, contract manufacturers, employees and other Persons having material business relationships with the Company and the Company Subsidiaries, except in each case where the failure to do so would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect;
(vi) promptly notify Parent in writing of (A) any notice from any Person alleging that the consent of such Person is or may be required in connection with any of the Transactions and (B) any legal proceeding commenced, or, to the knowledge of the Company, threatened against, relating to, involving or otherwise affecting any of the Company or the Company Subsidiaries that relates to the Merger, excluding any threats of litigation in the form of press releases issued by or announcements on internet sites of plaintiff law firms;
(vii) use reasonable best efforts to keep in full force all Insurance Policies (other than any such policies that are immediately replaced with substantially similar policies), provided that if it is unable to do so, it shall notify Parent at least 20 days before such policies terminate or otherwise lapse; and
(viii) to the extent reasonably requested by Parent and permitted under applicable Law, cause the officers and other key employees of the Company and the Company Subsidiaries to communicate with Parent either directly or through counsel regarding the results of operations and all material developments in or relating to the Company and any Company Subsidiary, subject to any limitations advised by counsel to the Company in connection with applicable antitrust and competition Laws.
(b) Without limiting the foregoing, except as set forth in Section 5.1(b) of the Company Disclosure Letter and except for any actions required under this Agreement or as required by applicable Law or the regulations or requirements of the Nasdaq Stock Market, unless Parent shall otherwise agree in writing (which agreement in the case of clauses (xii) and (xvii) (insofar as it relates to clause (xii)) below shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall cause the Company Subsidiaries not to:
(i) except as required by Law, amend its certificate of incorporation or bylaws or equivalent organizational documents;
(ii) accelerate the vesting of any Company Option;
(iii) issue, deliver, sell, grant or authorize the issuance of any Equity Interests in the Company or any Company Subsidiary, or securities convertible into, or exchangeable or exercisable for, any such Equity Interests, or any rights of any kind to acquire any such Equity Interests or such convertible or exchangeable securities, other than the issuance of Shares upon the exercise of Company Options outstanding on the date hereof;
(iv) sell, pledge, dispose of, transfer, lease, license, or encumber any material property or assets of the Company or any Company Subsidiary, except pursuant to existing Contracts or the sale of goods in the ordinary course of business consistent with past practices in all material respectspractice of the Company and the Company Subsidiaries;
(iiv) promptly notify Buyer of any breach of any representationdeclare, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approvalset aside, make Capital Expenditures substantially or pay any dividend or other distribution (whether payable in accordance with the budget attached as Schedule 6.02(a)(iiicash, stock, property or a combination thereof) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December any of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006its capital stock;
(ivvi) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operationsreclassify, organization (including management) and goodwill with respect to combine, split, subdivide or amend the Facilitiesterms of, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (includingor redeem, without limitationpurchase or otherwise acquire, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authoritydirectly or indirectly, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assetsits Equity Interests;
(iivii) amendmerge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, modifydissolution, enter intorestructuring, grant waiver recapitalization or other reorganization of the Company or any Company Subsidiary;
(viii) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of related transactions any Equity Interests in any Person or any business or division of any material term of, Person or give all or substantially all of the assets of any material consent with respect to, any Material Contract Person (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Datebusiness or division thereof);
(iiiA) except in respect for any revolving credit borrowings consistent with the borrowing forecast included as part of Capital Expenditures permitted by Section 6.02(b)(iv)5.1(b) of the Company Disclosure Letter, enter intoincur or assume any indebtedness or issue any debt securities; (B) assume, terminate guarantee, endorse or amend otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Contract involving total consideration throughout its term in excess of $1,000,000 other Person; (C) make any loans, advances or capital contributions to, or investments in, any other than Contracts entered into Person, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices which will be fully performed prior practice; or (D) cancel any indebtedness owed to the Closing without further liability to Company or any Company Subsidiary of more than $25,000 or waive any Subsidiary claims or rights of substantial value; except, in each case, other than in the Companies)ordinary course of business;
(ivx) commit hire or engage any employees, consultants or contractors, or encourage any employees, consultants or contractors to incur Capital Expenditures resign from the Company or any of the Company Subsidiaries, or promote any employees or change the employment status or titles of any employees, except for (A) the hiring of employees based on planned or current searches underway and listed in Section 5.1(b) of the Company Disclosure Letter, (B) hiring replacement employees to fill existing positions that have become vacant after the Closing Date date of this Agreement, at the same aggregate compensation, or (C) engagements of consultants or contractors in excess the ordinary course of the applicable amount shown business at compensation rates comparable to other consultants or contractors at similar levels and pursuant to arrangements that can be terminated without penalty on Schedule 6.02(b)(iv)not more than 30 days notice;
(vxi) except to the extent required by applicable Law or the existing terms of any Company Benefit Plan, any existing agreement or any retention program established by the Company Board in connection with the transactions contemplated by this Agreement and disclosed in Section 3.12 of the Company Disclosure Letter: (A) except as set forth in Section 5.1(b) of the Company Disclosure Letter, increase wages, bonuses or other compensation, remuneration or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee of the Company or any Company Subsidiary, or establish, grant, adopt, enter into or amend any bonus, profit sharing, thrift, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement for the benefit of any director, officer or employee; or (C) other than trade payables incurred as expressly provided in this Agreement, take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan;
(xii) make any Tax election, settle or compromise any liability for Taxes, change any method of Tax accounting, file any amended Tax Return, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund;
(xiii) make any change in accounting policies or procedures, other than as required by GAAP;
(xiv) terminate or permit any Company Permit to lapse, other than in accordance with the terms and regular expiration of any Company Permit, or fail to apply on a timely basis for any renewal of any renewable Company Permit, except to the extent such termination, lapse or failure to apply for renewal would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect;
(xv) modify or amend any Company Material Contract, Government Contract or Proposal, other than in the ordinary course of business consistent with past practices practice provided that the aggregate impact of all such ordinary course modifications or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) amendments (A) hire would not reasonably be expected to result in a decrease in consolidated revenue of more than $100,000 or promote a decrease in consolidated net income of more than $20,000 for the Company and the Company Subsidiaries in any employee, fiscal quarter or a decrease in consolidated revenue of more than $200,000 or a decrease in consolidated net income of more than $40,000 over the remaining life of any single Company Material Contract or Government Contract or Proposal and (B) except with respect would not reasonably be expected to increases result in compensation that, but for the timing of the grant thereof, are a decrease in the ordinary course of business, grant any increase in the compensation revenue from such Company Material Contract or benefits of any employee, (C) establish any new compensation Government Contract or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered Proposal by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of more than 20% over its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Personremaining life;
(xvi) make (x) settle any material change in its accounting principles, methods litigation that would require payment of more than $100,000 or policies, except as otherwise required by GAAP or make require the imposition of any material change in its risk management policies or internal controls that are less restrictive than those in effect restrictions on the Execution Date;business of the Company or any Company Subsidiary, or settle any investigation pending with any Governmental Entity or (y) settle any litigation or threatened litigation relating to or arising out of the proposed Merger or the transactions contemplated by this Agreement or seeking an injunction with respect thereto (“Transaction Litigation,” which shall be governed by this clause (y) only and not clause (x)), without the consent of the Parent, which consent in the case of this clause (y) will not be unreasonably withheld, conditioned or delayed; or
(xvii) authorize or enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with With respect to emergency situations any Transaction Litigation, the Company will cooperate with Parent to permit Parent to participate in the defense, negotiation and settlement thereof. Parent will, promptly following the date hereof, designate one individual from whom the Company may seek written approval to comply with applicable Law so long as Seller shall promptly inform Buyer undertake any actions not permitted to be taken under this Section 5.1, and will ensure that such person will respond, on behalf of such emergency actionsParent, to the Company’s requests in an expeditious manner but in any event, no later than two Business Days from the Company’s written request.
Appears in 2 contracts
Sources: Merger Agreement (Micronetics Inc), Merger Agreement (Mercury Computer Systems Inc)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule 6.02or (C) except for those actions specifically set forth in Sections 2.06(i), during (ii) or (iii) of the Interim PeriodStockholders Agreement, Seller will in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors to be appointed by the Investors to the Board of Directors, the Company shall, and shall cause the Companies each of its Significant Subsidiaries to:
, (i) operate conduct its business only in the Facilities ordinary course and their consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practices practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures respects with applicable Laws. Notwithstanding the foregoing and continue environmental remediation expenditures substantially in accordance with the budget attached except as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise expressly contemplated by this Agreement or as set forth in Schedule 6.02 or as consented to by Buyer in writingon Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld, conditioned withheld or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(ia) amend the Certificate of Incorporation or bylaws or other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assetsorganizational documents except as contemplated by this Agreement;
(iib) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except become liable in respect of Capital Expenditures permitted by Section 6.02(b)(iv)any guarantee or incur, enter intoassume or otherwise become liable in respect of any debt, terminate except for guarantees or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into borrowings in the ordinary course of business consistent with past practices which will be fully performed prior to as permitted under the Closing without further liability to the Companies)Credit Agreement;
(ivc) commit make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof;
(d) take any action that is reasonably likely to incur Capital Expenditures after result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date in excess or (ii) any of the applicable amount shown on Schedule 6.02(b)(iv)conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied;
(ve) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contractsamend, incurmodify, createwaive, assume terminate or otherwise become liable for Indebtedness alter in any material respect the provisions, terms or issue any debt securities or assume or guarantee the obligations conditions of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or acquire all or substantially all any agreements to be entered into in connection therewith; or
(f) agree to take any of the assets of actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any other Person;
way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (viii) issue or sell any partnership interests or securities, or rights pay fees to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employeethe lenders under the Credit Agreement, (Bii) except enter into waivers with respect to increases the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in compensation that, but for the timing of the grant thereof, are accordance with past practice or in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hexcel Corp /De/), Stock Purchase Agreement (Hexcel Corp /De/)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule 6.02or (C) except for those actions specifically set forth in Sections 2.06(i), during (ii) or (iii) of the Interim PeriodRestated Governance Agreement, Seller will in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause the Companies each of its Significant Subsidiaries to:
, (i) operate conduct its business only in the Facilities ordinary course and their consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practices practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures respects with applicable Laws. Notwithstanding the foregoing and continue environmental remediation expenditures substantially in accordance with the budget attached except as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise expressly contemplated by this Agreement or as set forth in Schedule 6.02 or as consented to by Buyer in writingon Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld, conditioned withheld or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(ia) amend the Certificate of Incorporation or bylaws or other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assetsorganizational documents except as contemplated by this Agreement;
(iib) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except become liable in respect of Capital Expenditures permitted by Section 6.02(b)(iv)any guarantee or incur, enter intoassume or otherwise become liable in respect of any debt, terminate except for guarantees or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into borrowings in the ordinary course of business consistent with past practices which will be fully performed prior to as permitted under the Closing without further liability to the Companies)Credit Agreement;
(ivc) commit make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof;
(d) take any action that is reasonably likely to incur Capital Expenditures after result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date in excess or (ii) any of the applicable amount shown on Schedule 6.02(b)(iv)conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied;
(ve) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contractsamend, incurmodify, createwaive, assume terminate or otherwise become liable for Indebtedness alter in any material respect the provisions, terms or issue any debt securities or assume or guarantee the obligations conditions of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or acquire all or substantially all any agreements to be entered into in connection therewith; or
(f) agree to take any of the assets of actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any other Person;
way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (viii) issue or sell any partnership interests or securities, or rights pay fees to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employeethe lenders under the Credit Agreement, (Bii) except enter into waivers with respect to increases the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in compensation that, but for the timing of the grant thereof, are accordance with past practice or in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hexcel Corp /De/), Stock Purchase Agreement (Goldman Sachs Group Inc/)
Conduct of Business Pending the Closing. (a) Except During the Interim Period, (i) Buyers shall use their respective commercially reasonable efforts to continue to operate the Acquired Assets in accordance with past practices and the Co-Owner Agreements and Fuel Agreement and (ii) except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December prior written consent of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating the Buyers shall not make any material changes in their accounting systems, policies, principles or practices related to the Excluded AssetsFacilities or Seller’s ownership share of the Facilities, during other than changes required by Law or changes which would not alter its methodology for valuing the assets comprising the Pre-Paid Amount or for calculating Facility-related costs and Seller’s share thereof.
(b) During the Interim Period Seller Period, the Buyers shall not (continue to provide monthly invoices with respect to the Companies), shall cause the Non-Company Affiliates not to Seller’s ownership share (with respect determined pursuant to the Companies)Fuel Agreement and Operation Agreements) of the Fuel Costs, Outstanding Fuel and O&M Costs, Outage Costs, and cause Outstanding Prorated Property Taxes.
(c) During the Companies not to:
Interim Period, Seller shall (i) comply with its obligations under the Co-Owner Agreements and other than Assumed Contracts and, except as contemplated by the Company Liens referenced in Section 6.08Restructuring, permit or allow any Lien securing indebtedness for borrowed money against any of otherwise continue to own the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into Acquired Assets in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);and (ii) not create any Encumbrances on its Interests, except for Permitted Encumbrances.
(ivd) commit The Parties acknowledge that, this Agreement is not intended to incur Capital Expenditures after the Closing Date modify or amend in excess any way any of the applicable amount shown on Schedule 6.02(b)(iv);provisions of the Co-Owner Agreements or Fuel Agreement, except as provided herein as of Closing.
(ve) other than trade payables incurred During the Interim Period, Seller shall continue to participate in the Base Residual Auction for PJM capacity in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Datepractice. Section 2.2(m) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securitiesSeller Disclosure Schedule will be updated to reflect these transactions, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for following the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution result of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoingauction. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.Americas 92513545
Appears in 1 contract
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their its present business operations, organization (including including, without limitation, management) and goodwill with respect to of the Facilities, Companies and (B) preserve their its present relationship with Persons having business dealings with respect to the Facilities Companies (including, without limitation, customers and suppliers);
(iii) determine the cost of renewing the Pollution Legal Liability Policy as it applies to Erie for a term of one year and, at Buyer's direction, and at the Companies' expense, so renew such policy, with Seller named as an additional insured; and
(Civ) file, or ensure that Carr Street is in a position to the extent allowed file, Carr Street's market-base▇ ▇▇te triennial report with FERC by the applicable Governmental AuthorityO▇▇▇▇er 1, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities2004.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writingBuyer, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Period, Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies)will not, and will cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(ii) amend, modify, enter into, grant any waiver of any material term ofunder, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date)Contract;
(iii) except in respect of Capital Expenditures permitted required by Section 6.02(b)(iv6.02(a), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the CompaniesClosing);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) [intentionally omitted];
(vi) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vivii) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(viiviii) issue or sell any partnership interests or securitiessecurities of any Company, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or convertible into, partnership interests or securities, other securities of either any Company;
(viiiix) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ixx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xi) cancel any debts or waive any claims or rights having a value in excess of $500,000;
(xii) make or revoke any material election with respect to Taxes of or relating to any Company or the Purchased Assets or settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy with respect to Taxes of or relating to any Company or the Purchased Assets that could reasonably be expected to have a material effect on the Companies or the Purchased Assets after the Closing;
(xiii) amend or modify its Charter Documents;
(xiv) except for transfers of cash with respect to which corresponding Intercompany Receivables or Intercompany Payables have been created or correspondingly adjusted or transfers of cash in exchange for goods and services pursuant to a Material Contract listed on Schedule 4.08(x) with Seller or a Non-Company Affiliate, make any transfers of cash to Seller or a Non-Company Affiliate; provided, further, that the Companies shall not directly pay any principal of or interest or fees on indebtedness owed by Seller or any Non-Company Affiliate without the creation of an equivalent Intercompany Receivable or a corresponding adjustment of a corresponding Intercompany Payable;
(xv) record accounting entries to Intercompany Payables or Intercompany Receivables with respect to which the offsetting entry is recorded to shareholder equity or partner's capital;
(xvi) subject to Section 2.02(c), declare, set aside, make or pay any dividend or other distribution in respect of the capital stock or partnership interests of any Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, any Company;
(xvii) effect any recapitalization, reclassification, stock split or like change in the capitalization of any Company;
(xviii) (Ai) hire or promote any employee, (Bii) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (Ciii) establish any new compensation or Benefit Plansbenefit plan or arrangement, (Div) amend or modify any Company Plan, (E) amend Plan or modify any Seller Plan insofar as any such amendment or modification to a Seller Plan relates solely to Affiliate Employees or former employees, officers or directors employees of the Companies, or (Fv) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xivxix) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assetsproperties or assets of the Companies;
(xvxx) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvixxi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of its Subsidiaries;
(xxii) make any material change in its accounting or Tax reporting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution DateGAAP;
(xviixxiii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility any Company to compete with or conduct any business or line of business in any geographic area;
(xviiixxiv) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property license or (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Company Permit;
(xixxxv) enter into a Contract with any Affiliate;
(xxvi) permit any Company to enter into any material Contract or to enter into, modify or renew any material Contracts Contract with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of which could bind the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documentsafter September 30, 2003; or
(xxviiixxvii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of any such emergency actionsactions taken outside the ordinary course of business consistent with past practices.
Appears in 1 contract
Conduct of Business Pending the Closing. From the date hereof until the Closing, except as contemplated hereby or, in the case of Pacific RPP and its Subsidiaries, as is necessary for Rainbow to comply with its fiduciary duties to its partner in Pacific RPP under Applicable Law (aas advised by outside counsel to Rainbow) Except or take specific actions required by the Underlying Business Agreements (e.g., make required distributions), Rainbow shall cause each of such Underlying Businesses to conduct its businesses in the ordinary course consistent with past practice and to use its reasonable best efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of employees of such Underlying Businesses. In addition, from the date hereof until the Closing, Rainbow and its Affiliates will continue to provide support services to the Underlying Business in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, from the date hereof until the Closing, without the prior written approval of Comcast (which shall not be unreasonably withheld or delayed, it being understood that Comcast shall be deemed to have approved any written request for approval if Comcast has not responded in writing to such request for approval within five days of receipt thereof), except as otherwise expressly contemplated by this Agreement or hereby, as set forth in Schedule 6.025.2, during or as required by Applicable Law, Rainbow will not permit any of the Interim PeriodUnderlying Businesses to:
(a) enter into, Seller will cause amend in any material respect, renew or extend any agreement or commitment that is or is required to be disclosed (or, if in effect as of the Companies todate hereof, would have been required to be disclosed) in Schedule 3.11, other than:
(i) operate as disclosed on Schedule 5.2;
(ii) in the Facilities case of Pacific RPP and their business its Subsidiaries, as is necessary for Rainbow to comply with its fiduciary duties to its partner in Pacific RPP under Applicable Law (as advised by outside counsel to Rainbow);
(iii) agreements or commitments that are terminable at the option of such Underlying Business on no more than 90 days’ notice without penalty;
(iv) any agreement or commitment which does not provide for either (A) annual payments by the Related Underlying Businesses as to any Regional of $250,000 or more or (B) aggregate payments by the Related Underlying Businesses as to a Regional of $500,000 or more, provided that any sales commissions for advertising or sponsorship agreements shall be excluded from the calculation of such annual payments or aggregate payments, as applicable; or
(v) any agreement or commitment providing for payments to any Underlying Business either (A) with a term of not longer than (1) one year or (2) the end of the next succeeding sports season for the sport, if any, to which such agreement or commitment relates or (B) that does not provide for either (1) annual payments to the Related Underlying Businesses as to any Regional of $250,000 or more or (2) aggregate payments to the Related Underlying Businesses as to any Regional of $500,000 or more;
(b) adopt or propose any change in its Underlying Business Agreement;
(c) merge or consolidate with any other Person or acquire a material amount of assets from any other Person;
(d) sell, lease, license or otherwise dispose of any material assets or property except (i) as required by the terms of any agreement or commitment disclosed on Schedule 3.11 or (ii) in the ordinary course of business consistent with past practices in all material respectspractice;
(iie) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation other than capital expenditures substantially in accordance with the applicable budget attached as for any Underlying Business in effect on the date hereof set forth on Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval3.8, make Capital Expenditures substantially any capital expenditure or commitment for a capital expenditure for additions or improvements to property, plant and equipment in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled excess of $100,000 for the ▇▇▇▇ ▇▇ Outage any single expenditure or in excess of $500,000 for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006all such expenditures;
(ivf) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operationsincur, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement assume or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow guarantee any Lien securing indebtedness for borrowed money against any of that will not be paid in full prior to the Purchased AssetsClosing;
(iig) amend, modify, enter into, grant waiver of create or incur any material term oflien, charge, pledge or give other encumbrance on any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (asset other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies)practice;
(ivh) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, to or otherwise acquire the securities of investment in any Person other Person;
(xvi) make any material change in its accounting principles, methods or policies, except than as otherwise required by GAAP any Underlying Business Agreement or make any material change in its risk management policies or internal controls that are less restrictive than those in effect pursuant to contracts outstanding on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents date hereof made in the ordinary course of business consistent with past practicespractice;
(xxii) cancel, settle change any method of accounting or compromise debts having accounting practice or any material method of Tax accounting except for any such change after the Balance Sheet Date required by reason of a value concurrent change in excess of $1,000,000 generally accepted accounting principles or waive claims or rights having a value in excess of $1,000,000by Applicable Law;
(xxiij) enter into a fuel purchasemake any declaration, storage, transportation, option, swap setting aside or payment of any dividend or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election distribution with respect to Taxes partnership or fail limited liability company interests, other than dividends or other distributions of cash made on a pro rata basis to pay the owners of such partnership or limited liability company interests; provided that no dividends or distributions of cash by Pacific shall be permitted if after giving effect to such distribution Pacific would have cash and cash equivalents on the Closing Date equal to less than $5,000,000 (if the Closing Date is on or prior to the 15th day of any Taxes month) and $6,000,000 (if the Closing Date is after the 15th day of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAPany month);
(xxviik) except as required by Applicable Law and except as required by the terms of any Underlying Business Agreement, the terms of this Agreement or the Employee Letter or the terms of any existing Plan disclosed on Schedule 3.13(a), (i) enter into or amend any employment, severance, termination, bonus, deferred compensation, equity-based compensation or modify other similar agreement with any employee of any of the Underlying Businesses (other than under Cablevision’s long-term cash or equity incentive programs), (ii) terminate any employment, severance, consulting, termination, bonus, deferred compensation, equity-based compensation or other similar agreement with any employee of any of the Underlying Businesses (other than under Cablevision’s long-term cash or equity incentive programs), (iii) other than in the ordinary course consistent with past practices, enter into or amend in any material respect or terminate any agreement with any independent contractor or consultant, (iv) transfer the employment or services of any employee, independent contractor or consultant of any of the Underlying Businesses to Rainbow or any Affiliate of Rainbow (other than the Underlying Businesses) (it being understood that the hiring by Rainbow or any Affiliate of Rainbow of any employee of an Underlying Business who responds to a general external solicitation or a general internal listing of an open position without being otherwise specifically solicited by Rainbow shall not be deemed to be a transfer of employment for purposes of this clause (iv)), provided that in no event may any employee listed on Schedule 5.2(k)(iv) be transferred to Rainbow or any Affiliate of Rainbow, whether pursuant to a general solicitation or otherwise, (v) establish, adopt or amend any collective bargaining agreement or Plan of any of the Underlying Businesses, or (vi) other than in the ordinary course consistent with past practices, increase the compensation or other benefits payable to any director, officer, employee, independent contractor or consultant of any of the Underlying Businesses for which the Underlying Businesses or Comcast or any of its Charter DocumentsAffiliates will have any liability at any time following the Closing; or
(xxviiil) agree or commit to do any of the foregoing. Notwithstanding anything herein to the foregoingcontrary, Seller may permit it is hereby understood and agreed that neither Comcast nor any of its Affiliates (including, after the Companies Closing, any of the Underlying Businesses) shall have any liability any time following the Closing in respect of Cablevision’s long-term cash or equity incentive programs. Notwithstanding anything herein to take commercially reasonable actions the contrary, nothing herein shall prevent any Underlying Business from, in each case prior to the Closing, (x) making any declaration, setting aside or payment of any dividend or other distribution with respect to emergency situations and partnership or limited liability company interests on a pro rata basis to comply with applicable Law so long as Seller shall promptly inform Buyer the owners of such emergency actionspartnership or limited liability company interests; provided that no dividends or distributions of cash by Pacific shall be permitted if after giving effect to such distribution Pacific would have cash and cash equivalents on the Closing Date equal to less than $5,000,000 (if the Closing Date is on or prior to the 15th day of any month) and $6,000,000 (if the Closing Date is after the 15th day of any month), or (y) entering into, amending, renewing or extending any affiliation or carriage agreement or any agreement relating to programming or distribution rights in good faith and on arm’s length terms in contemplation of or in connection with the scheduled expiration of any such agreement or, with respect to any affiliation or carriage agreement, in connection with the sale or other change in control of any system(s) covered by such agreement; provided that no Underlying Business shall enter into any agreement applicable to multiple networks where any distributor’s rights or obligations with respect to any Regional may be triggered by the actions of, or contained in the same contract as, any other network. In addition, if pursuant to this Section 5.2, Comcast withholds its consent to the entry by Pacific or New England, as applicable, into any agreement or commitment with a third party, then, during the period prior to the Closing and, should the Closing fail to occur, for a period ending on the later of (i) one year following the first date on which Comcast withheld its consent to the entry into the applicable agreement or commitment and (ii) six months after the date of termination of this Agreement with respect to the applicable Underlying Business (the “Specified Period”), Comcast SportsNet West or CN8, as applicable, shall not enter into an agreement or commitment covering the same or a substantially similar matter with the same third party (or another third party (including an Affiliate) acting in concert with that same third party). By way of example, if Comcast, pursuant to this Section 5.2, prohibits Pacific from acquiring a package of television broadcast rights from a particular team, then prior to the Closing and for the Specified Period, Comcast SportsNet West may not acquire the same or a substantially similar package of television broadcast rights from the same team (or a third party (including an Affiliate) acting in concert with that same team). Nothing in this Agreement shall otherwise limit Comcast SportsNet West and CN8 from conducting their respective operations and from entering into agreements or commitments.
Appears in 1 contract
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their its present business operations, organization (including including, without limitation, management) and goodwill with respect to of the Facilities, Companies and (B) preserve their its present relationship with Persons having business dealings with respect to the Facilities Companies (including, without limitation, customers and suppliers);
(iii) determine the cost of renewing the Pollution Legal Liability Policy as it applies to Erie for a term of one year and, at Buyer’s direction, and at the Companies’ expense, so renew such policy, with Seller named as an additional insured; and
(iv) file, or ensure that C) ▇▇▇ Street is in a position to the extent allowed file, C▇▇▇ Street’s market-based rate triennial report with FERC by the applicable Governmental AuthorityOctober 1, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities2004.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writingBuyer, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Period, Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies)will not, and will cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased AssetsAssets ;
(ii) amend, modify, enter into, grant any waiver of any material term ofunder, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted required by Section 6.02(b)(iv6.02(a), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the CompaniesClosing);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv),
(v) [intentionally omitted];
(vvi) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vivii) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(viiviii) issue or sell any partnership interests or securitiessecurities of any Company, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or convertible into, partnership interests or securities, other securities of either any Company;
(viiiix) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ixx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xi) cancel any debts or waive any claims or rights having a value in excess of $500,000;
(xii) make or revoke any material election with respect to Taxes of or relating to any Company or the Purchased Assets or settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy with respect to Taxes of or relating to any Company or the Purchased Assets that could reasonably be expected to have a material effect on the Companies or the Purchased Assets after the Closing;
(xiii) amend or modify its Charter Documents;
(xiv) except for transfers of cash with respect to which corresponding Intercompany Receivables or Intercompany Payables have been created or correspondingly adjusted or transfers of cash in exchange for goods and services pursuant to a Material Contract listed on Schedule 4.08(x) with Seller or a Non-Company Affiliate, make any transfers of cash to Seller or a Non-Company Affiliate; provided, further, that the Companies shall not directly pay any principal of or interest or fees on indebtedness owed by Seller or any Non-Company Affiliate without the creation of an equivalent Intercompany Receivable or a corresponding adjustment of a corresponding Intercompany Payable;
(xv) record accounting entries to Intercompany Payables or Intercompany Receivables with respect to which the offsetting entry is recorded to shareholder equity or partner’s capital;
(xvi) subject to Section 2.02(c), declare, set aside, make or pay any dividend or other distribution in respect of the capital stock or partnership interests of any Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, any Company;
(xvii) effect any recapitalization, reclassification, stock split or like change in the capitalization of any Company;
(xviii) (Ai) hire or promote any employee, (Bii) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (Ciii) establish any new compensation or Benefit Plansbenefit plan or arrangement, (Div) amend or modify any Company Plan, (E) amend Plan or modify any Seller Plan insofar as any such amendment or modification to a Seller Plan relates solely to Affiliate Employees or former employees, officers or directors employees of the Companies, or (Fv) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xivxix) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assetsproperties or assets of the Companies;
(xvxx) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvixxi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of its Subsidiaries;
(xxii) make any material change in its accounting or Tax reporting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution DateGAAP;
(xviixxiii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility any Company to compete with or conduct any business or line of business in any geographic area;
(xviiixxiv) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property license or (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Company Permit;
(xixxxv) enter into a Contract with any Affiliate;
(xxvi) permit any Company to enter into any material Contract or to enter into, modify or renew any material Contracts Contract with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of which could bind the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documentsafter September 30, 2003; or
(xxviiixxvii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of any such emergency actionsactions taken outside the ordinary course of business consistent with past practices.
Appears in 1 contract
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by HoldCo, on behalf of the Manager Entities, covenants and agrees that, between the date hereof and the earlier to occur of the Closing or the termination of this Agreement or set forth pursuant to its terms, unless the chair of the Annaly Board of Directors shall otherwise specifically consent in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
writing in advance (i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed), or unless otherwise expressly provided for by this Agreement, the Manager Entities shall (i) conduct their respective business in all material respects in the ordinary course consistent with past practice; (ii) use their respective commercially reasonable efforts to (A) preserve intact their business and, in the case of the Business, operate in a manner consistent with the Management Agreement and (B) keep available the services of their respective present officers and employees; (iii) maintain any insurance upon all material assets of Manager and the Business in such amounts and of such kinds comparable to that in effect on the date hereof; (iv) pay and discharge current Liabilities of the Manager Entities as and when due and payable in accordance with the Contracts governing such Liabilities, except for matters relating Liabilities of the Manager Entities not material in amount that are disputed in good faith by appropriate Proceedings and properly reserved for on the Manager Balance Sheet and (v) comply in all material respects with all Applicable Laws and Material Contracts. Subject to the Excluded Assetslast sentence of Section 7.1, during HoldCo, on behalf of the Interim Period Seller Manager Entities, covenants and agrees that between the date hereof and the earlier to occur of the Closing or the termination of this Agreement pursuant to its terms, none of the Manager Entities shall not (directly or indirectly do, or propose to do, any of the following items with respect to themselves and their respective business without the Companiesprior written consent of the chair of the Annaly Board of Directors (which consent shall not be unreasonably withheld, conditioned or delayed) unless otherwise expressly provided for by this Agreement or otherwise expressly set forth in Section 7.1 of the HoldCo Disclosure Letter:
(a) amend, propose to amend or otherwise change its Organizational Documents (except as may be needed to effect the transactions set forth in Section 7.11), shall cause the Non-Company Affiliates not to alter through merger, liquidation, reorganization, reclassification, recapitalization, restructuring or in any other fashion its legal structure or its capital structure or ownership, or commence any voluntary liquidation, dissolution or winding up;
(b) declare, set aside or make any dividend, payment or distribution of property or assets with respect to its equity interests, including the Companies)Contributed Equity Interests, the AMH Equity Interests and cause the Companies not to:Manager Equity Interests;
(c) (i) incur, on its behalf, any Indebtedness or guarantee the Indebtedness of any other than Person or (ii) make, on its behalf, any loans, advances of capital contributions to, or investments in, or other advances to, any other Person, or otherwise commit, on its behalf, to any such financial transaction, or pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company Liens referenced Contributors or any of their Affiliates, in each case under clause (i) or (ii), except in the ordinary course consistent with past practice or as set forth in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any 7.1(c) of the Purchased AssetsHoldCo Disclosure Letter;
(iid) amendsell, modifytransfer, enter intolease or otherwise dispose of or pledge or otherwise encumber (other than Permitted Liens) its material assets, grant waiver except as set forth in Section 7.1(d) of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date)HoldCo Disclosure Letter;
(iiie) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv)(i) make, enter into, terminate revoke or amend change any Contract involving total consideration throughout election relating to its term in excess of $1,000,000 (Taxes other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);
practice, (ivii) commit to incur Capital Expenditures after the Closing Date in excess change or revoke any of the applicable amount shown on Schedule 6.02(b)(iv);
(v) its Tax accounting methods other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employeepractice, (Biii) except with respect to increases in compensation that, but for the timing change any of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected its Tax accounting periods other than in the ordinary course of business consistent with past practicespractice, changes or (iv) settle or compromise any material Tax audit applicable to it or surrender any right to claim a refund with respect to a material Liability for Tax;
(f) modify in any material respect, terminate or renew any of its Material Contracts or enter into any new Contract, on its behalf, that had it been in effect on the date hereof would have been a Material Contract (and if entry into such Contract is permitted or consented to by the chair of the Annaly Board of Directors, hereunder, modify in any material respect, terminate or renew such Contract thereafter), provided, however, this Section 7.1(f) shall not apply to modifications, terminations or renewals of the Management Agreement;
(g) cause or permit Manager to enter into new employment agreements, except for offer letters sent to prospective employees in the ordinary course consistent with past practice, or amend any existing employment agreements;
(h) terminate the employment of any Senior Person other than (i) a termination for Cause (as defined in the Second Amended and Restated Limited Liability Company Agreement of HoldCo, dated November 29, 2019) or (ii) due to role elimination without, in the case of this subsection (ii), prior approval of the Annaly Board of Directors’ Compensation Committee;
(i) alter the compensation payable to any Senior Person for the fiscal year ending December 31, 2020 (which, for the avoidance of doubt, shall be consistent with the information set forth in Section 7.1(i) of the HoldCo Disclosure Letter);
(j) except (w) as set forth in Section 7.1(i), (x) as required pursuant to applicable Laws, or changes required pursuant to Contracts existing Manager Benefit Plans in effect as of the Execution Date date hereof, (including y) in connection with the Collective Bargaining Contract)promotion of Manager Employees in the ordinary course of business or (z) as otherwise required by Applicable Law, except for promotionsadopt, hirings enter into or changes relating to employees not covered become bound by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings new Manager Benefit Plan or changes;
(x) enter intomaterially amend, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable LawsManager Benefit Plan;
(xik) implement any layoff of employees that could implicate the WARN Act;
cause or permit (xiii) enter into any Contract under which either Company advances or loans any amount Manager, on its behalf, to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or rights, assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or properties other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practicespractice or (ii) Manager, on its behalf, to acquire (by merger, consolidation, acquisition of stock or assets or otherwise) or organize or form any corporation, limited liability company, partnership, joint venture, or other Person or any business organization or division thereof;
(xxil) cancelenter into any new line of business on its behalf;
(m) make any material change to its accounting or cash management policies, procedures or practices (including with respect to reserves, revenue recognition, timing for payments of accounts payable and collection of accounts receivable) unless required by a change in Applicable Law or GAAP; or
(n) settle or compromise debts having a value any Proceeding on behalf any Manager Entity (i) in an amount in excess of $1,000,000 250,000 or waive claims or rights having a value (ii) where such settlement would result in excess the imposition of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect restrictions upon any of its operations or the Business or would reasonably be expected to Taxes restrict the conduct or fail to pay any Taxes operations of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documentsbusiness of the Annaly Parties; or
(xxviiio) agree agree, whether in writing or commit otherwise, to do any of the foregoing. Notwithstanding anything to the foregoingcontrary herein and for the avoidance of doubt, Seller may permit nothing in this Section 7.1, shall be construed to prevent Manager from causing Annaly or any of its Subsidiaries (separate and distinct from the Companies to take commercially reasonable Manager Entities) from taking actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer in the course of such emergency actionsManager’s management of the Business.
Appears in 1 contract
Sources: Internalization Agreement (Annaly Capital Management Inc)
Conduct of Business Pending the Closing. (a) Except From the Signing Date until the earlier to occur of the Closing or the termination hereof, except as otherwise expressly required or contemplated by the transactions contemplated by this Agreement or set forth in Schedule 6.02the Ancillary Agreements, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer Buyers in writing, writing (which consent shall not be unreasonably withheld, conditioned or delayed), each Seller shall:
(a) operate the Business in the Ordinary Course of Business;
(b) use commercially reasonable efforts to keep the Business and Assets substantially intact, including the present operations, physical facilities, working conditions and relationships with dealers, vendors, suppliers, customers and Governmental Entities;
(c) use commercially reasonable efforts to operate the Business and own and use the Assets in compliance, in all material respects, with all applicable Laws;
(d) not sell, lease or otherwise transfer or dispose of any of the Assets, except in the Ordinary Course of Business;
(e) use commercially reasonable efforts to maintain all qualifications of such Seller (including Permits) that are required for matters it to own the Owned Real Properties or to lease the Leased Real Properties or to carry on the Business in accordance with Section 5.2(a);
(f) except as set forth on Schedule 5.2(f), use commercially reasonable efforts to (i) maintain the Assumed Contracts in full force and effect, (ii) perform in all material respects its obligations thereunder and (iii) not enter into any agreement or other arrangement to extend, modify or renew any of the Assumed Contracts;
(g) use commercially reasonable efforts to preserve all rights, privileges, franchises and other authority adequate for the conduct of the Business as currently conducted;
(h) not enter into (i) any arrangement containing any limitation or restriction of any nature on the ability of the Business to operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any other restrictive covenant, except in connection with Section 5.1(a) or (ii) any arrangement containing or granting most favored nations or similar pricing provisions;
(i) not pledge or mortgage any of the Assets or subject any of the Assets to any Lien (or permit any of the Assets to be subjected to any Lien) of any nature whatsoever, other than Permitted Liens or Liens that will be released at or prior to Closing;
(j) use commercially reasonable efforts to maintain the Assets in the substantially the same operating condition and repair consistent with all applicable Laws and past practices, ordinary wear and tear excepted;
(k) use commercially reasonable efforts to maintain in full force and effect without modification (other than in the Ordinary Course of Business) all material insurance policies relating to the Excluded AssetsBusiness, during the Interim Period Seller shall Assets or the Assumed Liabilities;
(l) pay or cause to be paid the debts, Taxes and other obligations of the Business prior to delinquency;
(m) not (materially change or modify its credit, collection or payment policies, procedures, or practices, including fail to pay or delay payment of payables or other liabilities, with respect to the Companies), shall cause the Non-Company Affiliates Business;
(n) not to liquidate or dissolve;
(with respect to the Companies), and cause the Companies o) not to:
(i) grant any Station Operation Employees or Non-Operation Support Employees any loan or, except in the Ordinary Course of Business, increase in wages, salary, commissions, bonuses, severance, termination payments, pension or other than compensation, increase in benefits, or accelerate the Company Liens referenced vesting or payment of any compensation or benefits for any Station Operation Employees or Non-Operation Support Employees or (ii) enter into any employment arrangements with any Station Operation Employees or Non-Operation Support Employees;
(p) continue to conduct physical counts of all Fuels Inventory and non-fuel Inventory in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any the Ordinary Course of Business at each retail store included in the Purchased Assets;
(iiq) amend, modify, enter into, grant waiver of not cancel or waive any rights related to the Assets or commence any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior Proceedings relating to the Execution Date)Assets, except in each case as would not reasonably be expected to impair or delay the transactions contemplated by this Agreement or adversely affect Buyers’ ownership or operation of the Business or Assets following Closing;
(r) not relocate any of the Assets to a location other than at the Station Property at which such Assets are customarily located, other than in the Ordinary Course of Business;
(s) maintain the books, accounts and records (financial, Inventory, repair and maintenance and otherwise) of the Business in the Ordinary Course of Business;
(t) not (i) increase Inventory in an amount not in the Ordinary Course of Business, (ii) fail to replenish Inventory in the Ordinary Course of Business or (iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend make any Contract involving total consideration throughout its term commitment in excess of $1,000,000 (other the normal, ordinary and usual requirements of the Business, consistent with the past practice methodologies customarily used by Sellers for determining such needs, or at any price in excess of the then-usual current market price or upon terms and conditions more onerous to the Business than Contracts entered into in the ordinary course of business those consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies)of Sellers;
(ivu) commit except in the Ordinary Course of Business, not (i) make, change or revoke any material Tax election, settle or compromise any material Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to incur Capital Expenditures any taxing authority to change) any material aspect of its method of accounting for Tax purposes that, in each case, would increase the Tax Liabilities of Buyer for any period (or portion thereof) after the Closing Date or (ii) prepare or file any Tax Return (or any amendment thereof) other than any Tax Return that relates solely to Seller Taxes unless such Tax Return shall have been prepared in excess of a manner consistent with past practice and Sellers shall have provided Buyers a copy thereof (together with supporting papers) at least three (3) Business Days prior to the applicable amount shown on Schedule 6.02(b)(iv)due date thereof;
(v) not merge (or be merged) with or into any other than trade payables incurred in Person (including any other Seller), except as would not reasonably be expected to (i) impair or delay the ordinary course transactions contemplated by this Agreement, (ii) adversely affect Buyers’ ownership of business consistent with past practices the Business or accounts payable the Assets following Closing or (iii) adversely affect the Buyer Indemnified Parties’ indemnification rights pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) Article VIII or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Personcollectability thereof;
(viw) fail to maintain its partnership not enter into any agreements, programs or corporate existence or consolidate other arrangements with any other Person that (i) any arrangement containing any limitation or acquire all or substantially all restriction of any nature on the ability of the assets of Business to operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any other Person;
restrictive covenant; (viiii) issue any arrangement containing or sell any partnership interests granting most favored nations or securities, similar pricing provisions; or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (Biii) except with respect to increases in compensation that, but for the timing of the grant thereof, are actions in the ordinary course Ordinary Course of businessBusiness, grant any increase action that would result in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely increased Liabilities to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreementthird parties under an Assumed Contract; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;and
(x) enter intonot authorize, modify or terminate any labor or collective bargaining agreement of either Company orcontract, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease commit or otherwise dispose of agree whether in writing or otherwise to take any of the material Purchased Assets;
actions set forth in clause (xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Datec) or clauses (Ch)-(w) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsthis Section 5.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunoco LP)
Conduct of Business Pending the Closing. From the date of this Agreement until the Closing, except (aA) Except as set forth in Section 6.1 of the Disclosure Schedule, (B) as required by Law, (C) in the ordinary course of business, (D) as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
Transaction Documents or (iE) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) prior written consent of Buyer (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned):
(a) Seller shall, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not each Company Subsidiary to:
(i) other than use, own or operate the Company, Company Liens referenced in Section 6.08Subsidiaries, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into Real Property and Communities in the ordinary course of business and in substantially the same manner as currently conducted, including by (subject to Section 6.1(b)) (A) entering into any Ground Lease, Office Lease, Retail Lease, University Agreement or similar arrangements or modifications, amendments, waivers and supplements to any Material Contracts to the extent consistent with the past operation of the applicable Real Property or Communities, (B) continuing to maintain the insurance currently carried by Seller or the Company or applicable Company Subsidiary, including with respect to the Communities, (C) maintaining and repairing the Communities in accordance with the Company’s past practices which will be fully performed prior and subject to ordinary wear and tear, and (D) timely perform in all material respects all obligations under the existing mortgage financing encumbering the Communities;
(ii) use reasonable best efforts to continue and complete any development and construction activities related to any Development Real Property substantially in accordance with the Development Plans, including without limitation, that portion of the Development Plans relating to the Closing schedule to completion;
(iii) allow Buyer to reasonably monitor construction and development architecture and operations at the Development Properties, including without further liability limitation by having the right to attend any and all regularly scheduled meetings with respect to project architects and general contractors and receiving copies of any construction advance requests; and
(iv) use reasonable best efforts to (A) preserve the Company’s and each Company Subsidiary’s present operations, relationships and organization and, and (B) not allow a default to occur under any Material Contract as a result of any actions taken or omitted to be taken by the Company and Company Subsidiaries.
(b) Seller shall not, and shall cause the Company and each Company Subsidiary not to, take any of the actions set forth in Section 6.1(b)(i) through Section 6.1(b)(xv) below, in each case with respect to the CompaniesCompany and the Company Subsidiaries:
(i) subject to Section 6.1(b)(vii), transfer, issue, sell or dispose of any Share or Subsidiary Equity Interest or grant options, warrants, calls or other rights to purchase or otherwise acquire any Share or Subsidiary Equity Interest;
(ii) effect any liquidation, dissolution, recapitalization, reclassification or like change in the capitalization or permit any merger or consolidation with any Person;
(iii) amend Organizational Documents other than in connection with the Conversions or as reasonably required in order to secure any Lender Consent provided that no required amendment for Lender Consent shall change or modify the entity form or the management or governance structure of the respective Company Subsidiary;
(iv) commit to incur Capital Expenditures after other than in connection with the Closing Date in excess Development Plans, subject any of the applicable amount shown on Schedule 6.02(b)(iv)Real Property or Communities to any Lien other than Permitted Liens;
(v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the terms of a Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease (except with respect to a Student Lease made in the ordinary course of business) or otherwise dispose of any of the material Purchased AssetsReal Property or any Communities;
(xvvi) enter into, amend, terminate or renew any Material Contract, other than (A) any automatic amendments, terminations or renewals pursuant to the terms of any Material Contract or (B) terminations of Existing Loans (including by prepayment thereof);
(vii) materially increase any compensation to, or enter into or agree to enter into amend any merger employment, severance, termination or consolidation similar agreement with, any corporation or other entityof its employees, except for (a) year-end bonuses in respect of 2015, (b) long-term incentive grants in 2016 and not engage (c) normal compensation increases as required under any agreement in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire effect as of the securities date of any other Personthis Agreement;
(xviviii) settle any material Legal Proceeding (other than the Acadiana Claim) involving the Real Property or any Community or relating to the transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of cash (and no ongoing restrictions on the Real Property or Communities to be acquired directly or indirectly by Buyer) for which Seller bears sole financial responsibility;
(ix) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on modifications to the Execution DateDevelopment Plans;
(xviix) make or change any material Tax election, adopt or change any material accounting method with respect to Taxes, file any amended Tax Return, enter into any Contract that restrainsclosing agreement, restrictssettle or compromise any proceeding with respect to any Tax claim or assessment, limits surrender any right to claim a refund of Taxes, consent to any extension or impedes waiver of the ability limitation period applicable to any Tax claim or assessment relating to the Company or Company Subsidiary, except in each case to the extent necessary to maintain Seller’s qualification as a REIT or, prior to the Conversions, the Company’s and UHCP’s qualification as a QRS of a Facility to conduct any business or line of business in any geographic areaSeller;
(xviiixi) terminate the employment of any employee under circumstances constituting an “employment loss” as defined in the WARN Act;
(xii) remove or allow to be removed any material personal property or fixtures from the Real Property except for purposes of replacement thereof in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would in which case such replacements shall be a Material Contract if entered into promptly installed prior to the Execution Closing and shall be comparable in all material respects in quantity and quality to the item(s) being replaced;
(xiii) offer any new material concessions or promotions not in place as of the date hereof, with respect to any of the Retail Leases or proposed retail leases;
(xiv) except as set forth in Section 6.1(b)(xiv) of the Disclosure Schedule, implement any new material policies or concessions not in place as of the date hereof, with respect to any of the Student Leases; and
(xv) agree to do anything prohibited by this Section 6.1(b).
(c) In the event that as of the Closing Date the Austin Development has not achieved Substantial Completion, (x) Seller shall deliver into escrow with ▇▇▇▇▇ Fargo Bank, National Association (the “Austin Escrow Agent”), pursuant to an escrow agreement substantially in the form attached hereto as Exhibit E, an amount equal to $8,000,000 (the “Austin Escrow”), and (y) Buyer and Seller shall cooperate in good faith to achieve Substantial Completion of the Austin Development on or before the Austin Completion Date. For a period from Closing until the date of Completion (the “Austin Escrow Period”), Buyer shall have the right to be reimbursed from the Austin Escrow for the amount of any Austin Losses, provided that, Buyer shall not have any right to such reimbursement (1) if Buyer makes any changes to the Austin Project Team (other than termination of a member due to willful misconduct, fraud or any criminal conduct) or (C2) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale extent that any Austin Losses are caused by change-orders or changes to the scope of energy the Austin Development made by Buyer that will be performed after the Closing except that would result in additional costs not require the payment, individually or included in the aggregateAustin Budget. Upon Seller’s reasonable written request, Buyer shall assign to Seller any claims that Buyer may have against the general contractor under the Austin Construction Contract for which Buyer has been reimbursed from the Austin Escrow and Buyer shall, and shall cause the Company and any applicable Company Subsidiaries to use reasonable best efforts to cooperate (including, by making available to Seller books, records and personnel) with Seller in order for Seller to pursue and recover such claims. At the end of the Austin Escrow Period, the Austin Escrow Agent shall promptly deliver to Seller any remaining amounts in the Austin Escrow. In the event the Austin Losses exceed the amounts in the Austin Escrow, Seller hereby acknowledges and agrees that Buyer shall have the right to seek a claim under Article VIII for such amounts in excess of $1,000,000;the Austin Escrow.
(xxd) purchase The Parties hereby acknowledge and agree that the current completion guarantor under the ground lease for the Austin Property is Inland American Real Estate Trust, Inc. pursuant to the Completion Guaranty dated as of September 18, 2014 (the “Austin Completion Guaranty”). On and after the date hereof through Closing, Buyer shall use commercially reasonable efforts to have ground lessor accept UHC Group, Inc. as a replacement guarantor under the Austin Completion Guaranty. If, at Closing, ground lessor has not agreed to a replacement of the existing guarantor under the Austin Completion Guaranty, UHC Group, Inc. shall indemnify Seller, pursuant to a separate indemnity agreement in form and substance reasonably acceptable to Seller and Buyer, for any securities liabilities under the completion guaranty on and after the Closing Date, excepting therefrom any liability of any Person, except for short-term investments or cash equivalents made in Seller under Article VIII of the ordinary course of business consistent with past practices;Agreement.
(xxie) cancelIn the event that, settle or compromise debts having as a value result of the early terminations, concessions, incentives, reductions, rebates, etc. described in excess Section 6.1(b)(xiv) of $1,000,000 or waive claims or rights having the Disclosure Schedule (the “Concession”), there are Losses of contracted rent with respect to Student Leases for the 2015-2016 academic year, Buyer shall be entitled to receive a value credit against the Initial Purchase Price as provided in excess of $1,000,000;
(xxiiSection 2.2(m) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
equal to the Losses for the period from the Closing Date through the original lease termination date (xxivon a pro rata basis) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes as a result of the Companies as they become due and payable Concession (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAPsuch amount, the “Concession Losses”);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (InvenTrust Properties Corp.)
Conduct of Business Pending the Closing. (a) Except (i) as otherwise contemplated expressly permitted or required by this Agreement Agreement, (ii) with the prior written consent of Buyer (which shall not be unreasonably withheld, conditioned or delayed), (iii) as set forth in Schedule 6.02on Section 5.1(a) of the Company Disclosure Schedule, (iv) as expressly contemplated or required by the Pre-Closing Actions or (v) as required by Law, during the Interim period from the Agreement Date until the earlier of the Closing and the termination of this Agreement pursuant to Article VII (the “Pre-Closing Period”), Seller will shall cause the Companies to:
each Group Company to (iA) operate the Facilities and their conduct its business in the ordinary course Ordinary Course of Business, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of the business and its material business relationships (including by using commercially reasonable efforts to preserve its assets and technology and preserving relationships with its customers, suppliers, lenders, and Authorities) and retain the services of its executive officers, contractors and employees, (C) pay or perform all of its obligations when due in the Ordinary Course of Business (including accounts payable), (D) maintain its cash management practices and its policies, practices and procedures with respect to collection of trade accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue, and acceptance of customer deposits in accordance with past custom and practice; provided that the Company Group will use commercially reasonable efforts to collect accounts receivable from active and inactive customers in the Ordinary Course of Business, (E) perform in all material respects all of its obligations under all Contracts to which it is a party, by which it or any of its properties or assets is bound or affected or pursuant to which it is an obligor or beneficiary, and comply in all material respects with all Laws, Orders and Legal Proceedings by any Authority applicable to it or its business, properties or assets, (F) continue in full force and effect the Insurance Policies, (G) maintain its books and records consistent with past practices practice in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (CH) at Seller’s electionupon reasonable advance written notice, make Capital Expenditures substantially in accordance confer with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March Buyer concerning operational matters of a material nature and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect otherwise report periodically to the FacilitiesBuyer concerning the status of its business, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers operations and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilitiesfinances.
(b) Except Without limiting the generality of the foregoing, except (i) as otherwise contemplated expressly permitted or required by this Agreement or set forth in Schedule 6.02 or as consented to by Agreement, (ii) with the prior written consent of Buyer in writing, (which consent shall not be unreasonably withheld, conditioned or delayed), and except for matters relating to (iii) as set forth on Section 5.1(b) of the Excluded AssetsCompany Disclosure Schedule, (iv) as expressly contemplated or required by the Pre-Closing Actions or (v) as required by Law, during the Interim Period Pre-Closing Period, Parent and Seller shall not (with respect to the Companies), shall cause the Non-permit any Group Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(i) issue, sell, grant, transfer, dispose of (or permit disposition of), pledge or otherwise encumber any Company Shares or the Equity Interests of any other than the Group Company, or declare, set aside or pay any dividends or other distributions (whether in cash, stock or property or any combination thereof) in respect of such Company Liens referenced in Section 6.08, permit Shares or allow any Lien securing indebtedness for borrowed money against any of the Purchased AssetsEquity Interests;
(ii) amend(A) redeem, modifypurchase, enter into, grant waiver repurchase or otherwise acquire any of its outstanding Equity Interests or (B) form any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date)Subsidiary;
(iii) except (A) split, combine, subdivide or reclassify any of its Equity Interests, or otherwise effect any recapitalization or other change in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate its capitalization; or (B) amend any Contract involving total consideration throughout its term in excess terms of $1,000,000 any capital stock or other equity or voting securities of any Group Company (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companieswhether by merger, consolidation or otherwise);
(iv) commit incur or assume any indebtedness for borrowed money or guarantee any indebtedness, except in the Ordinary Course of Business, or issue or sell any Debt (including any debt securities or options, warrants, calls or other rights to incur Capital Expenditures after the Closing Date in excess acquire any debt securities of the applicable amount shown on Schedule 6.02(b)(ivany Group Company);
(v) sell, transfer, assign, convey, lease, pledge, grant any option or other right in, license (other than trade payables incurred non-exclusive licenses to Intellectual Property in the ordinary course Ordinary Course of business consistent with past practices Business), allow to lapse or accounts payable expire, mortgage, encumber or otherwise abandon, dispose of or subject to any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction), other than Permitted Liens, any of its securities, properties (including any Leased Real Property), assets, rights or businesses to any Person, except (A) in the Ordinary Course of Business, (B) pursuant to Contracts in effect on the Agreement Date or (C) for dispositions of obsolete assets that have been fully depreciated or assets having a de minimis value in the Ordinary Course of Business;
(vi) make any capital expenditure or incur any obligations or liabilities in respect thereof in excess of $100,000 individually, or $250,000 in the aggregate;
(vii) directly or indirectly acquire (by merging or consolidating with, or by purchasing equity interests in or assets of, or by any other manner) any Person or division, business or equity interest in any Person or, except in the Ordinary Course of Business, any assets that are not material to the Business individually or in the aggregate;
(viii) make any loan, capital contribution (other than to Group Companies in the Ordinary Course of Business) or advance to or investment in any Person (other than advances to any Company Personnel in the Ordinary Course of Business);
(ix) terminate (other than automatic termination in accordance with the terms thereof), cancel, modify or amend any rights, or exercise, waive, release or assign any material rights, claims or benefits under, any Material Contracts Contract (other than a Seller Plan or Contracts entered a Group Company Plan), or enter into after any Contract that constitutes or would, upon entry by a Group Company thereto, constitute a Material Contract (other than a Seller Plan or a Group Company Plan) (including a Lease and any extension or renewal thereof on substantially the Execution Date that would be Material Contracts if same terms) had it been entered into prior to the Execution Agreement Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vix) fail to maintain its partnership except (x) as required by applicable Laws or corporate existence or consolidate with (y) as required by the terms of any other Person or acquire all or substantially all Plan set forth on Section 3.14(a) of the assets Company Disclosure Schedule and as in effect as of any other Person;
(vii) issue or sell any partnership interests or securitiesthe Agreement Date, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or engage, or promise to hire or engage, any employee or other service provider or terminate (other than for “cause” (as determined consistent with past practice and Applicable Laws)), promote or change the title of any employeeCompany Personnel, (B) except with respect increase the compensation (whether cash- or equity-based) or benefits payable or to increases in compensation thatbecome payable by any Group Company to any current or former Company Personnel (other than if such former Company Personnel is then employed by Parent or any Affiliate thereof (other than a Group Company)), but for the timing of the grant thereof, are in the ordinary course of business, (C) grant any bonus, benefit or other direct or indirect compensation to any current or former Company Personnel, (D) establish, adopt, enter into, amend or terminate any Plan (or any plan, agreement, program, policy, commitment or other arrangement that would be a Group Company Plan if it were in existence on the Agreement Date) or grant, amend or terminate any awards thereunder, (E) increase the coverage under, or the compensation or benefits payable or available under, any existing severance, termination, change in control or retention pay policy or Group Company Plan, (F) take any action to accelerate the vesting or payment of any compensation or benefits of any employeecurrent or former Company Personnel, (CG) establish grant any new awards under any bonus, incentive, or performance plan, (H) take any action to fund or in any other way secure the payment of compensation or Benefit Plans, (D) amend or modify benefits under any Group Company Plan, (EI) amend make any loan or modify cash advance to any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees current or former employeesCompany Personnel, officers (J) transfer the employment of (1) any employee of Seller or directors its Affiliates (other than the Group Companies) into a Group Company or (2) any employee of a Group Company into Seller or its Affiliates (other than the Group Companies), (K) enter (or commit to enter) into, amend, terminate or extend any collective bargaining agreement or other agreement with a labor union, works council or similar employee or labor organization (or enter into negotiations to do any of the Companiesforegoing), (L) implement or announce any employee layoffs, furloughs, reductions in force, reductions in compensation, hour or benefits, work schedule changes or similar actions that could implicate the WARN or any similar Law, or (FM) enter into waive or modify release any employmentnoncompetition, consultingnonsolicitation, terminationnondisclosure, retentionnoninterference, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Lawsnondisparagement, or changes required pursuant to Contracts in effect as other restrictive covenant obligation of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable LawsService Provider;
(xi) implement make, change or revoke any layoff material election concerning Taxes, change any material accounting method in respect of employees Taxes, file any amended income or other material Tax Return, fail to pay a material amount of Taxes that could implicate would otherwise be delinquent (including estimated Tax payments), incur any material liability for Taxes outside the WARN ActOrdinary Course of Business, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment, surrender any right to claim a material Tax refund, enter into any Tax sharing, closing, or similar agreement in respect of any Taxes (other than any agreement, arrangement or other Contract not principally related to Taxes), or obtain any Tax ruling;
(xii) enter into make any Contract under which either Company advances changes in accounting methods, principles or loans any amount to any of its directorspractices, officersexcept insofar as may be required by a change in GAAP, and employees outside the ordinary course of businessIFRS or Applicable Law;
(xiii) enter into any settlementamend the Company Organizational Documents (whether by merger, conciliation consolidation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000otherwise);
(xiv) except in take any action for the ordinary course winding up, liquidation, dissolution or reorganization of businessany Group Company or for the appointment of a receiver, acquire administrator or administrative receiver, trustee or similar officer of any material properties or Group Company’s assets or sellrevenues (including adopting a plan or agreement of complete or partial liquidation, assigndissolution, licenserestructuring, transferrecapitalization, conveymerger, lease consolidation or otherwise dispose of any of other reorganization other than the material Purchased AssetsAncillary Documents);
(xv) enter into or agree to enter into any merger or consolidation withcommence, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution tosettle, or otherwise acquire the securities of offer or propose to settle any other Personmaterial Legal Action involving or against any Group Company or any officer or director thereof or settle any material Legal Action which involves any non-monetary relief;
(xvi) make (A) cancel, compromise, waive or release any material change in its accounting principlesright, methods debt or policies, except as otherwise required by GAAP claim of the Company Group; or make any material change in its risk management policies (B) delay or internal controls that are less restrictive than those in effect on postpone the Execution Datepayment of payables or accelerate the payment of receivables outside the Ordinary Course of Business;
(xvii) enter into terminate, cancel, modify or amend, or exercise, waive, release or assign any Contract that restrainsrights, restrictsclaims or benefits under, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic areaEmployment Agreement;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive amend any rights under any (A) Assigned Related Party Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter intoagree, modify resolve or renew commit to, in writing or otherwise, to take any of the foregoing actions.
(c) Subject to Section 5.1(b), during the Pre-Closing Period Seller will provide notice to, and consult in good faith with, Buyer before causing or permitting any Group Company to:
(i) acquire or license any assets that are material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, Company Group individually or in the aggregate, except purchases or licensures, as applicable, of amounts inventory, raw materials and software in the Ordinary Course of Business;
(ii) transfer, assign, dispose or grant any license or sublicense of any rights under or with respect to any material Company-Owned IP in the Ordinary Course of Business (it being understood that any such action outside the Ordinary Course of Business or inconsistent with past practice will be subject to Section 5.1(b)), including entering into, amending, renewing, terminating or modifying development agreements, publishing agreements, distribution agreements, geographic joint venture agreements, platform agreements, merchandizing agreements, customer agreements, vendor agreements or other similar agreements, in each case to the extent in the Ordinary Couse of Business;
(iii) terminate (expect for a termination resulting from the expiration of a Material Contract in accordance with its terms) or waive any material rights under any Material Contract or Permit to any Group Company or its business, properties or assets; or
(iv) enter into, assume, become subject to, any Contract for the purchase, sale or delivery of materials, supplies, goods, services (other than services from any employee), equipment or other assets, the performance of which extends over a period of more than one year or that otherwise involves, in each case, an amount or value over a 12-month period (ending December 31, 2025) in excess of $1,000,000;500,000.
(xxd) purchase any securities of any PersonNotwithstanding anything herein to the contrary, except for shortSeller and the Company Group are permitted to take all actions reasonably necessary to effectuate and consummate the Pre-term investments or cash equivalents made in the ordinary course of business consistent with past practices;Closing Actions, subject to Section 5.9.
(xxie) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into If any speculative energy or fuel transactions;
(xxv) seek Group Company desires to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do take any of the foregoing. Notwithstanding actions prohibited by this Section 5.1, Parent or the foregoing, applicable Seller may permit deliver written notice (which shall include a reasonable description of the Companies proposed action(s)) to Buyer, including by email to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ([*****]), referring to the applicable provisions of this Section 5.1. In the event that ▇▇▇▇▇ consents in writing to such action (such consent not to be unreasonably withheld, conditioned or delayed), Buyer shall be deemed to have waived its right to object to such action(s) and the applicable Group Company shall have the right to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsaction(s).
Appears in 1 contract
Sources: Share Purchase Agreement (Take Two Interactive Software Inc)
Conduct of Business Pending the Closing. (a) Except From the date hereof until the Closing, except with the prior written consent of the Buyer or as otherwise contemplated expressly permitted or required by this Agreement or set forth in Schedule 6.02Agreement, during the Interim Period, Seller will Sellers shall cause each of the Companies Mandara Entities to:
(i) operate the Facilities and their carry on its business in substantially the ordinary course same manner as it has heretofore and not introduce any new method of business consistent with past practices in all material respectsmanagement, operation or accounting (except as required by GAAP or any applicable Law or Order);
(ii) promptly notify Buyer of any breach of any representationcomply with the terms and conditions of, warrantyand not cancel, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledgeits present insurance policies;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their its commercially reasonable efforts to (A) maintain and preserve their present its business operationsorganization intact, organization (including management) and goodwill with respect to the Facilities, (B) preserve retain the services of its present employees;
(iv) comply with all applicable Governmental Requirements and provide notice to Buyer of any governmental inquiry, notice or investigation; and
(v) maintain the instruments and agreements governing its outstanding Indebtedness and leases on their present relationship with Persons having business dealings with respect to terms and not incur new Indebtedness or enter into new lease instruments or agreements, except for endorsement of the Facilities (including, without limitation, customers and suppliers) and (C) to promissory notes evidencing the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the FacilitiesSeller Loans.
(b) Except From the date hereof until the Closing, except with the prior written consent of the Buyer or as otherwise contemplated expressly permitted or required by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writingAgreement, which consent the Sellers shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to ensure that none of the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not toMandara Entities will:
(i) other than the Company Liens referenced make any change in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assetsits Charter Documents;
(ii) amendissue any additional Equity Interests or issue or otherwise create any options, modify, enter into, grant waiver warrants or rights to acquire any of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date)its Equity Interests;
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend make any Contract involving total consideration throughout its term in excess of $1,000,000 Restricted Payment (other than Contracts entered into cash distributions to the shareholders of the Company that are made in accordance with SECTION 1.4(E) and that that do not result in the ordinary course consolidated cash balance of business consistent with past practices which will be fully performed prior to the Closing without further liability to Company being less than the CompaniesTarget Cash Balance Amount);
(iv) commit increase or agree to incur Capital Expenditures after increase the Closing Date compensation payable to any member of its Board of Directors, or any officers, directors, managers, consultants or employees except for increases in excess of the applicable amount shown on Schedule 6.02(b)(iv)ordinary course consistent with past practice;
(v) make any investments (other than trade payables incurred short-term certificates of deposit of a commercial bank or trust company) in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts Equity Interests (or Contracts entered into after options, warrants or rights to acquire the Execution Date that would be Material Contracts if entered into prior to the Execution DateEquity Interests) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail enter into any contract to maintain its partnership incur, or corporate existence otherwise agree to incur any liability or consolidate with make any other Person capital payment or acquire all or substantially all of the assets expenditure of any kind in excess of $50,000, other Personthan in the ordinary course of its business and consistent with its past practice;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote prepay any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected Indebtedness other than in the ordinary course of business consistent with past practices, changes required pursuant or (B) create, assume or permit to applicable Laws, be created or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract)imposed any Liens, except for promotionsPermitted Liens, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to upon any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sellproperties, assign, license, transfer, convey, lease whether now owned or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or hereafter acquired other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practicespractice;
(xxiviii) cancelexcept as required by any applicable Law or Order, settle (A) adopt, establish, amend or compromise debts having a value in excess terminate any of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swapits Employee Benefit Plans, or other arrangementany Other Compensation Plans or Employee Policies and Procedures or (B) take any discretionary action, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies omit to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.any contractually
Appears in 1 contract
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by Each Contributed Entity covenants and agrees, for itself and not for any other Contributed Entity that, between the date hereof and the earlier to occur of the Closing or the termination of this Agreement or set forth pursuant to its terms, unless a majority of the independent and disinterested members of the RS Board and the CCI Parties shall otherwise specifically consent in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
writing in advance (i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed), or unless otherwise expressly provided for by this Agreement, such Contributed Entity shall (i) conduct its respective business in all material respects in the ordinary course consistent with past practice; (ii) use all reasonable efforts to (A) preserve intact its business and significant relationships with third parties and (B) keep available the services of its respective present officers and employees, if any; (iii) maintain any insurance upon all of its material assets and its business in such amounts and of such kinds comparable to that in effect on the date hereof; (iv) pay and discharge its current Liabilities as and when due and payable in accordance with the Contracts governing such Liabilities, except for matters relating Liabilities of such Contributed Entity not material in amount that are disputed in good faith by appropriate Proceedings and properly reserved for as of the date of the most recent unaudited balance sheet provided by such Contributed Entity to the Excluded AssetsRS Parties (such Contributed Entity’s “Balance Sheet”) and (v) comply in all material respects with all Applicable Laws and Contributed Entity Material Contracts. Subject to the last sentence of this Section 7.1, during each Contributed Entity, for itself and not any other Contributed Entity, covenants and agrees that between the Interim Period Seller date hereof and the earlier to occur of the Closing or the termination of this Agreement pursuant to its terms, such Contributed Entity shall not (directly or indirectly do, or propose to do, any of the following items with respect to itself and its respective business without the Companies)prior written consent of a majority of the independent and disinterested members of the RS Board and the CCI Parties (which consent shall not be unreasonably withheld, shall cause conditioned or delayed) unless otherwise expressly provided for by this Agreement or otherwise expressly set forth in Section 7.1 of the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not toContributor/Contributed Entity Disclosure Letter:
(i) other than the Company Liens referenced in Section 6.08, permit amend or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assetspropose to amend such Contributed Entity’s Organizational Documents;
(ii) amendadjust, modifysplit, enter intocombine, grant waiver reclassify or subdivide any equity interests of any material term of, or give any material consent with respect to, any Material Contract such Contributed Entity (or Contract entered into after the Execution Date that would be other than a Material Contract if entered into prior to the Execution Datewholly owned subsidiary of such Contributed Entity);
(iii) except as set forth in Section 7.1(a)(iii) the Contributor/Contributed Entity Disclosure Letter, declare, set aside or pay any distribution on or make any other actual, constructive or deemed distributions with respect to equity interests in such Contributed Entity or otherwise make any payment to its equity holders in their capacity as such;
(iv) redeem, repurchase or otherwise acquire, directly or indirectly, any equity interests or debt securities of Capital Expenditures permitted by such Contributed Entity or securities convertible or exchangeable into or exercisable therefor;
(v) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization;
(vi) except as set forth in Section 6.02(b)(iv)7.1(a)(vi) of the Contributor/Contributed Entity Disclosure Letter and except for transactions among such Contributed Entity and one or more wholly owned subsidiaries of such Contributed Entity, issue, sell, pledge, dispose, encumber or grant any equity interests in such Contributed Entity or any options, warrants, convertible securities or other rights of any kind to acquire any equity interests in such Contributed Entity;
(vii) enter into, terminate or amend into any Contract involving total consideration throughout its term or understanding with respect to the voting of, any equity interests of such Contributed Entity;
(viii) acquire or agree to acquire any material assets, except (A) acquisitions by such Contributed Entity or from an existing wholly owned subsidiary of such Contributed Entity, (B) acquisitions described in excess Section 7.1(a)(viii)(B) of the Contributor/Contributed Entity Disclosure Letter, and (C) other acquisitions of personal property for a purchase price of less than $1,000,000 200,000 in the aggregate;
(other than Contracts entered into ix) sell, mortgage, pledge, lease, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any property or assets, except in the ordinary course of business, provided that any sale, mortgage, pledge, lease, assignment, transfer, disposition or deed in connection with the satisfaction of any margin call or the posting of collateral in connection with any Contract to which such Contributed Entity is a party shall be considered to be done in the ordinary course of business;
(x) except as set forth in Section 7.1(a)(x) of the Contributor/Contributed Entity Disclosure Letter, incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or guarantee such Indebtedness of another Person except (A) Indebtedness incurred under such Contributed Entity’s existing credit facilities in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);
and (ivB) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables Indebtedness incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contractsdoes not, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of businessaggregate, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Lawsexceed $200,000;
(xi) implement make any layoff loans, advances or capital contributions to, or investments in, any other Person (including to any of employees that could implicate the WARN Actits officers, directors, Affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, other than loans, advances or capital contributions to, or investments in, any wholly owned subsidiary of such Contributed Entity;
(xii) enter into any Contract under which either Company advances “keep well” or loans any amount similar agreement to any maintain the financial condition of its directors, officers, and employees outside the ordinary course of businessanother entity;
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except other than in the ordinary course of business, acquire enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any material properties rights or assets claims under, any Contributed Entity Material Contracts (or sellany Contract that, assignif existing as of the date hereof, licensewould be a Contributed Entity Material Contract) in any material respect, transfer, convey, lease other than (A) any termination or otherwise dispose renewal in accordance with the terms of any existing Contributed Entity Material Contracts that occurs automatically without any action (other than notice of renewal) by such Contributed Entity or (B) as may be reasonably necessary to comply with the terms of this Agreement;
(xiv) authorize, make or commit to make any material Purchased Assetscapital expenditures other than in the ordinary course of business or to address obligations under existing Contracts, or in conjunction with emergency repairs;
(xv) enter into make any payment, direct or agree to enter into indirect, of any merger or consolidation withliability of such Contributed Entity before the same comes due in accordance with its terms, any corporation or other entity, and not engage than in any new the ordinary course of business or invest in, make a loan, advance in connection with dispositions or capital contribution to, or otherwise acquire the securities refinancings of any other PersonIndebtedness otherwise permitted hereunder;
(xvi) make waive, release, assign, settle or compromise any material Action, other than waivers, releases, assignments, settlements or compromises that (A) involve only the payment of monetary damages in an amount (less any portion of such payment payable under an existing property-level insurance policy or reserved for such matter by such Contributed Entity on the most recent balance sheet such Contributed Entity made available to the RS Parties as of the date of this Agreement) no greater than $100,000 individually or $300,000 in the aggregate, (B) do not involve the imposition of injunctive relief against such Contributed Entity or the RS Parties and (C) do not provide for any admission of material liability by such Contributed Entity.
(xvii) except as contemplated in Section 4.1 and Section 4.2 of this Agreement (A) hire any officer or employee of such Contributed Entity, (B) except where due to cause, terminate any officer of such Contributed Entity, (C) increase in any manner the amount of salary, wages, bonuses, compensation of benefits or accelerate the vesting of any compensation arrangement of any officer, director, employee or independent contractor of such Contributed Entity with annual base compensation of $75,000 or more, (D) increase, amend, enter into or adopt any bonus, change in its accounting principlescontrol, methods retention, special remuneration, severance, accelerated vesting or policiesother compensation arrangement or Contract for any officer, director, employee or independent contractor of any Contributed Entity, or (E) except as otherwise required by to conform with any applicable change in the law which will not result in any material liability for the Contributed Entity, amend, enter into or adopt any Benefit Plan;
(xviii) fail to maintain all financial books and records in all material respects on a consistent basis and, if required, in accordance with GAAP or make any material change in to its risk management policies or internal controls that are less restrictive than those methods of accounting in effect on the Execution DateJanuary 1, 2024, except as required by a change in GAAP or in Applicable Law, or make any change with respect to accounting policies, principles or practices unless required by GAAP;
(xviixix) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or new line of business in any geographic areabusiness;
(xviiixx) form any new funds, joint ventures or non-traded real estate investment trusts or other pooled investment vehicles;
(xxi) fail to duly and timely file all material reports and other material documents required to be filed with any Governmental Authority, subject to extensions permitted by Applicable Law;
(xxii) make, change or rescind any material election relating to Taxes; change a material method of Tax accounting; file or amend any material Tax Return; settle or compromise any material federal, state, local or foreign Tax liability, audit, claim or assessment; enter into any material closing agreement related to Taxes; knowingly surrender any right to claim any material Tax refund; or give or request any waiver of a statute of limitations with respect to any material Tax Return except, in each case, to the extent required by Applicable Law;
(xxiii) permit any Liens, except Permitted Liens and Liens that would not reasonably be expected to have a Contributed Entity Material Adverse Effect;
(xxiv) materially modify or reduce the amount of any insurance coverage provided by the Contributed Entity Insurance Policies;
(xxv) enter into any transaction that would be disclosable under item 404(a) of Regulation S-K promulgated under the Securities Exchange Act of 1934, as amended, if such Contributed Entity were subject to such regulation except in the ordinary course of business, terminate, amend, restate, supplement business or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered as contemplated by the NYISO;this Agreement; or
(xxvi) make authorize, or revoke enter into any material election with respect to Taxes Contract or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit arrangement to do any of the foregoing. .
(b) Notwithstanding anything to the foregoingcontrary set forth in this Agreement, Seller may permit the Companies nothing in this Agreement shall prohibit such Contributed Entity from taking any action, or refraining to take commercially any action, at any time or from time to time if, in the reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer judgment of the manager, managing member, board of managers or other governing body of such emergency actionsContributed Entity, such action or inaction is reasonably necessary to establish or maintain any exemption from or otherwise avoid the imposition of any requirement that such Contributed Entity be registered as an investment company under the Investment Company Act.
Appears in 1 contract
Sources: Internalization Agreement (Cottonwood Communities, Inc.)
Conduct of Business Pending the Closing. From the date of this Agreement until the Closing, except (aA) Except as set forth in Section 6.1 of the Disclosure Schedule, (B) as required by Law, (C) as otherwise contemplated by this Agreement Agreement, (D) in connection with, or set forth in Schedule 6.02as a result of, during the Interim Period, Seller will cause consummation of any of the Companies to:
Spin Transactions (iincluding as a result of (x) the Hotel Assets ceasing to be managed or operated by the employees of Parent that currently manage and operate the Facilities and their business such Hotel Assets or (y) Parent ceasing (or taking steps to cease) its operations in the ordinary course of business consistent hotel or lodging industry generally) or any action taken by Parent in furtherance thereof or (E) with past practices in all material respects;
(ii) promptly notify Buyer the prior written consent of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
Buyer (iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned):
(a) Prior to the Closing, Parent shall, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies)each Selling Subsidiary, and cause the Companies not to:
(i) use, own or operate the Real Property, the Hotels and the other than Hotel Assets in substantially the Company Liens referenced same manner as currently conducted, including by (A) entering into any Management Agreements, Franchise Agreements or other Material Contracts (or, in Section 6.08each case, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(iimodifications, amendments, waivers and supplements thereto) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business extent consistent with the past practices which will be fully performed prior to the Closing without further liability to the Companies);
(iv) commit to incur Capital Expenditures after the Closing Date in excess operation of the applicable amount shown on Schedule 6.02(b)(iv);
Real Property or Hotel and with the consent of any Buyer (v) other than trade payables incurred provided that such Buyer’s consent shall not be required for any such modifications, amendments, waivers or supplements as may be affected automatically in the ordinary course of business consistent accordance with past practices or accounts payable pursuant to the such Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or are otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employeeexpressly contemplated by this Agreement), (B) except with respect causing the Managers and Franchisors to increases in compensation that, but for continue to operate the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected Hotels in the ordinary course of business consistent with past practices, changes required pursuant including by maintaining levels of Supplies, Consumables and Retail Inventories consistent with seasonally-adjusted past practices and (C) continuing to maintain the insurance currently carried by Parent or the applicable LawsSelling Subsidiary with respect to the Hotels; and
(ii) use Reasonable Efforts to preserve each Selling Subsidiary’s (A) present operations and organization and (B) present relationships with Managers, or changes required pursuant Franchisors, Employees, landlords under the Ground Leases, Lenders, Occupants and other Persons with whom the Selling Subsidiaries have similar relationships.
(b) Prior to Contracts in effect as the Closing, Parent shall not, and shall cause each Selling Subsidiary not to, take any of the Execution Date actions set forth in clauses (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;i) – (v) below:
(xi) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except other than in the ordinary course of business, acquire subject any material properties of the Real Property, Hotels or assets other Hotel Assets to any Lien other than Permitted Liens;
(ii) other than in the ordinary course of business or pursuant to the terms of a Material Contract, sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased AssetsHotel Assets (other than the Real Property, which is addressed in clause (iii) below);
(xviii) enter into or agree to enter into any merger or consolidation withsell, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution toassign, or otherwise acquire transfer any of the securities of any other PersonReal Property;
(xviiv) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive other than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminateenter into, amend, restate, supplement terminate or waive any rights under any (A) Assigned Contract, (B) renew any Material Contract (including all Management Agreements and Franchise Agreements), other than (A) any automatic amendments, terminations or Contract entered into after renewals pursuant to the Execution Date that would be a terms of any Material Contract if entered into prior or (B) terminations of Existing Loans (including by prepayment thereof), TRS Leases, Franchise Agreements, PILOT Agreements (to the Execution Dateextent related to the Real Property on which the Hilton Garden Inn Westbury is located) or (C) any PermitTerminating Management Agreements;
(xixv) enter into, modify or renew settle any material Contracts with respect Legal Proceeding involving the Real Property or any Hotel or relating to the sale transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of energy that will cash (and no ongoing restrictions on the Real Property or Hotels to be performed after the Closing except that would not require the payment, individually acquired directly or in the aggregate, of amounts in excess of $1,000,000indirectly by either Buyer) for which Parent bears sole financial responsibility;
(xxvi) purchase any securities of any Person, except for short-term investments restorations or cash equivalents made alterations required in the ordinary course case of business consistent with past practices;
(xxi) cancelemergencies or material casualty or condemnation, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect alterations to Taxes the Hotels without consent or fail to pay any Taxes approval of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documentsa Buyer; or
(xxviiivii) agree or commit to do anything prohibited by this Section 6.1(b).
(c) Notwithstanding anything in Section 6.1(a) or Section 6.1(b), in no event shall Parent be responsible for any action taken by any Manager or Franchisor, which such Manager or Franchisor is permitted to take pursuant to the terms of the foregoing. Notwithstanding applicable Management Agreement or Franchise Agreement without the foregoingconsent or approval of the applicable Selling Subsidiary, Seller may permit the Companies and Parent’s failure to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller prevent such Manager or Franchisor from taking such action shall promptly inform Buyer not, in any event, be deemed a breach of such emergency actionsthis Section 6.1.
Appears in 1 contract
Sources: Asset Purchase Agreement (Inland American Real Estate Trust, Inc.)
Conduct of Business Pending the Closing. (ai) Except as otherwise set forth in Section 4.1 of the Seller Disclosure Schedule, except as contemplated by this Agreement or set forth in Schedule 6.02by any of the Ancillary Agreements, and except with the written consent of the Purchaser, during the Interim Periodperiod from the date hereof to the Closing Date (or, Seller will in the case of a Deferred Asset, to the Subsequent Closing Date on which such Deferred Asset is conveyed to the Purchaser), the Sellers shall, and shall cause the INA Corporation and its subsidiaries which constitute Acquired Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v1) use their commercially reasonable efforts Reasonable Best Efforts to (A) preserve their present business operationsrelationships with and the goodwill of their agents, organization (including management) brokers, customers, suppliers, employees and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons other persons having business dealings with respect to the Facilities (including, without limitation, customers Sellers and suppliers) the Acquired Companies in connection with the Business and (C2) use Reasonable Best Efforts to preserve the extent allowed Business, and (ii) except as set forth in Section 4.1 of the Seller Disclosure Schedule, except as may be required in connection with the transactions contemplated by the applicable Governmental AuthorityExcluded Business Transfer Agreements, allow Buyer except as may be required to participate effect the Sellers' retention of any Deferred Assets at any Closing or any Subsequent Closing in material meetings accordance with Governmental Authorities regarding the Facilities.
(b) Except Section 1.3 hereof, except as otherwise contemplated by this Agreement or by any of the Ancillary Agreements, and except with the written consent of the Purchaser, during the period from the date hereof to the Closing Date (or, in the case of a Deferred Asset, to the Subsequent Closing Date on which such Deferred Asset is conveyed to the Purchaser), the Sellers shall, and shall cause INA Corporation and its subsidiaries which constitute Acquired Companies to, conduct the Business in the ordinary course consistent with past practice (including in respect of underwriting standards and reserving guidelines). Without limiting the generality of the foregoing, except as set forth in Schedule 6.02 Section 4.1 of the Seller Disclosure Schedule, except as may be required in connection with the transactions contemplated by the Excluded Business Transfer Agreements, except as may be required to effect the Sellers' retention of any Deferred Assets at any Closing or any Subsequent Closing in accordance with Section 1.3 hereof, except as consented to contemplated by Buyer in writing, which consent shall not be unreasonably withheld, conditioned this Agreement or delayedby any of the Ancillary Agreements, and except for matters relating to with the Excluded Assetswritten consent of the Purchaser, during the Interim Period Seller period from the date hereof to the Closing Date (or, in the case of a Deferred Asset, to the Subsequent Closing Date on which such Deferred Asset is conveyed to the Purchaser), the Sellers shall not, and shall not (permit INA Corporation or its subsidiaries which constitute Acquired Companies to, with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not toBusiness:
(i1) other than enter into any contract or agreement (including insurance agreements) relating to the Company Liens referenced in Section 6.08, permit Business or allow any Lien securing indebtedness for borrowed money against any that would constitute part of the Purchased Acquired Assets;
, in each case, other than: (ii1) amend, modify, enter into, grant waiver of any material term of, such contracts or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date agreements that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts are entered into in the ordinary course of business consistent with past practices practice (including investments made in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which will be fully performed prior to constitute Acquired Companies, as the Closing without further liability to the Companiescase may be);
; and (iv2) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred any such contract or agreement not entered into in the ordinary course of business consistent with past practices or accounts payable practice and pursuant to which the Material Contracts Business receives or is reasonably expected to receive payments, or makes or is reasonably expected to make payments, of less than one million dollars (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date$1,000,000) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Personper calendar year;
(vi2) fail acquire, lease, encumber, transfer or dispose of any asset relating to maintain its partnership the Business or corporate existence that presently does or consolidate with any other Person or acquire all or substantially all would at the Closing constitute part of the assets of any Acquired Assets, in each case, other Person;
than: (vii1) issue acquisitions, leases, encumbrances, transfers or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter dispositions entered into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date practice (including the Collective Bargaining Contract), except for promotions, hirings acquisitions or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement dispositions of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except investments in the ordinary course of businessbusiness consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of as the material Purchased Assets;
case may be); and (xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B2) any Material Contract (acquisition, lease, encumbrance, transfer or Contract disposition not entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
practice and pursuant to which the Business receives or is reasonably expected to receive payments, or makes or is reasonably expected to make payments, of less than one million dollars (xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one per calendar year;
(xxiii3) enter into an energy pay, discharge or capacity purchasesatisfy any material claims, saleliabilities or obligations (absolute, exchangeaccrued, optioncontingent or otherwise) associated with the Business, swapother than the payment, discharge or other arrangement, or transmission arrangement satisfaction in the ordinary course of business consistent with a term over one year or that would require credit support in an amount greater than $1,000,000past practice;
(xxiv4) incur any indebtedness for borrowed money or guarantee any indebtedness of another or make any loans or advances of borrowed money or capital contributions to, or equity investments in, any other person, other than: (1) indebtedness, guarantees, loans, advances, contributions and investments in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, as the case may be; and (2) indebtedness, guarantees, loans, advances, contributions and investments in the ordinary course of business under lines of credit with CIGNA or its affiliates;
(5) issue or sell or agree to issue or sell any additional equity interests of, or grant, confer or award any options, warrants or rights of any kind to acquire any equity interests, including without limitation securities convertible or exchangeable for equity interests, of INA Corporation or its subsidiaries which constitute Acquired Companies;
(6) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or assets comprising a business or make any material investment, either by purchase of stock or other securities, or contribution to capital, in any case, in any material amount of property or assets in or of any other person (other than acquisitions, investments or contributions in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, as the case may be);
(7) (1) enter into any speculative energy employment or fuel transactionsseverance agreement, other than for new employees in the ordinary course of business, (2) increase the benefits payable in the aggregate under severance or termination pay plans or policies in effect on the date hereof, other than amendments to existing policies or agreements of CIGNA which apply to all employees who are subject to the plans or policies (and not just Affected Employees) and other than as required by Law, (3) adopt any new or amend any existing bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan or policy for the benefit of any director, officer or employee, other than (A) for new employees in the ordinary course of business, (B) amendments to existing plans or policies of CIGNA which apply to all employees who participate in the plan or policy (and not just Affected Employees), (C) as required by Law and (D) amendments to bonus and profit sharing plans or policies which are applicable to all or a portion of the Business and which do not in the aggregate increase amounts otherwise payable under such plans or policies, or (4) increase the compensation or benefits of any director, officer or employee, other than in the ordinary course of business and other than as required by Law; provided, however, that INA Corporation and -------- ------- its subsidiaries which constitute Acquired Companies may enter into, adopt or amend any of the foregoing prohibited agreements or take any of the foregoing prohibited actions which, in the good faith judgement of the Sellers after consultation with the Purchaser, are necessary or desirable to conduct or maintain the Business in the ordinary course;
(xxv8) change any of the material accounting principles, practices, methods or policies (including but not limited to any reserving methods, practices or policies) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election employed with respect to Taxes the Business, except as may be required as a result of a change in Law, GAAP or fail to pay SAP (with the Sellers providing the Purchaser with prompt, prior written notice of any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAPsuch change);
(xxvii9) amend pledge or modify otherwise encumber shares of capital stock of INA Corporation or its Charter Documentssubsidiaries which constitute Acquired Companies, or mortgage or pledge any of their assets, tangible or intangible, or create any encumbrance, other than Permitted Liens;
(10) adopt a plan of complete or partial liquidation or resolutions providing for the complete or partial liquidation, dissolution, amalgamation, consolidation, restructuring, recapitalization or other reorganization of INA Corporation or its subsidiaries which constitute Acquired Companies;
(11) make any investments other than in accordance with the investment policies of the Acquired Companies as of the date of this Agreement, or make any material amendments to such investment policies;
(12) other than settlements under insurance policies in the ordinary course of business, make any prepayment of any material liabilities;
(13) make any amendment restricting the Business, termination (other than in accordance with its terms), waiver or disposal of any Seller Permit which is material to the Business;
(14) (A) from the date hereof through May 31, 1999, pay any dividend or authorize the payment of any dividends, (B) from June 1, 1999 through June 30, 1999, pay any dividend or authorize the payment of any dividends in excess of eleven million seven hundred thousand dollars ($11,700,000), and (C) from and after July 1, 1999, pay any dividend or authorize the payment of any dividends in excess of fifteen million dollars ($15,000,000) per fiscal month, other than, in the case of clauses (A), (B) and (C), the payment of any dividends or the authorization of the payment of any dividends which originate from any person which constitutes part of the Excluded Business;
(15) enter into any new agreement or arrangement between any of the Acquired Companies, on the one hand, and CIGNA or any of its subsidiaries (other than the Acquired Companies), on the other;
(16) enter into any agreement with a third party providing for the acceleration, payment, performance, consent or other consequence as a result of a change in control of INA Corporation and its subsidiaries which constitute Acquired Companies; or
(xxviii17) agree in writing or commit otherwise to do take any of the foregoingactions described above in clauses (i) through (xvi) of this Section 4.1(a).
(2) Notwithstanding anything to the contrary contained in Sections 4.1(a)(i), 4.1(a)(ii), 4.1(a)(iii), 4.1(a)(iv) and 4.1(a)(xvii) hereof (in the case of Section 4.1(a)(xvii) hereof, only in respect of Sections 4.1(a)(i), 4.1(a)(ii), 4.1(a)(iii) and 4.1(a)(iv) hereof), the Sellers and the Acquired Companies shall be entitled to take any and all actions provided for in the Business Plans without the consent of the Purchaser. Notwithstanding anything to the foregoingcontrary contained in Section 4.1(a) hereof, Seller may permit if the Companies transactions to take commercially reasonable actions with respect be implemented pursuant to emergency situations and Article I of the Excluded Business Transfer Agreement would result in an adverse effect on all or a portion of the Business, then the Sellers must obtain the written consent of the Purchaser (not to comply with applicable Law so long as Seller shall promptly inform Buyer of be unreasonably withheld) before implementing any such emergency actionstransactions.
Appears in 1 contract
Sources: Acquisition Agreement (Ace LTD)
Conduct of Business Pending the Closing. From the Effective Date until the Closing, except (aA) Except as set forth in Section 6.1 of the Disclosure Schedule, (B) as required by Law, (C) as otherwise contemplated by this Agreement Agreement, or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(iD) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) prior written consent of Buyer (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned delayed or delayed, and except for matters relating conditioned):
(a) Prior to the Excluded AssetsClosing, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not toshall:
(i) use, own or operate the Real Property, the Hotels and the other than Hotel Assets in substantially the Company Liens referenced in Section 6.08same manner as currently conducted, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted including by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect causing each Manager to increases in compensation that, but for continue to operate the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected Hotels in the ordinary course of business consistent with past practices, changes required pursuant including by maintaining levels of Supplies, Consumables and Retail Inventories consistent with seasonally-adjusted past practices, (B) causing each Manager to applicable Laws, or changes required pursuant continue to Contracts maintain the Hotels in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of businessbusiness consistent with past practices, including maintaining all improvements on the Real Property and all Furnishings substantially in the condition that they were in on the Effective Date (subject to Seller’s compliance with 6.3, and compliance in all material respects with all requirements of any Governmental Authority), and (C) continuing to maintain the insurance currently carried by Seller with respect to the Hotels; and
(xiiiii) enter into any settlementuse Reasonable Efforts to preserve each Selling Subsidiary’s (A) present operations and organization and (B) present relationships with each Manager, conciliation or Franchisors, Employees, landlords under the Ground Leases, Lenders, Occupants and other Persons with whom the Selling Subsidiaries have similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;relationships.
(xivb) except Prior to the Closing, Seller shall not take any of the actions set forth in clauses (i) – (vi) below:
(i) other than in the ordinary course of business, acquire subject any material properties of the Real Property, Hotels or assets other Hotel Assets to any Lien other than Permitted Exceptions;
(ii) other than in the ordinary course of business or pursuant to the terms of a Material Contract, sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Real Property, Hotels or other Hotel Assets;
(xviii) enter into without Buyer’s prior consent (not to be unreasonably withheld or agree to delayed), enter into any merger Management Agreements, Franchise Agreements, Material Contracts or consolidation withsimilar arrangements (or, any corporation or other entityin each case, modifications, amendments, waivers and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAPsupplements thereto);
(xxviiiv) amend without Buyer’s prior consent (not to be unreasonably withheld or modify its Charter delayed) except to the extent required in connection with any life safety event or to the extent that any such modifications to any Material Contract is terminable at Closing, enter into, amend, terminate or renew any Material Contract, other than (A) any automatic amendments, terminations or renewals pursuant to the terms of any Material Contract or (B) terminations of Existing Loans (including by prepayment thereof) or Operating Leases;
(v) settle any material Legal Proceeding involving the Real Property or any Hotel or relating to the transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of cash (and no ongoing restrictions on the Real Property or Hotels) for which Seller bears sole financial responsibility; or
(xxviiivi) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsanything prohibited by this Section 6.1(b).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust Ii Inc)
Conduct of Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or set forth in Schedule 6.02with the prior written consent of Allscripts, during the Interim Period, Seller will cause the Companies toRxCentric shall:
(i) operate conduct the Facilities businesses of RxCentric only in the ordinary course consistent with past practice;
(ii) not enter into any contracts or agreements that contain prices less than RxCentric’s standard prices less RxCentric’s standard discounts, consistent with past practice, or that impose liabilities in any instance in excess of $10,000, or $25,000 in the aggregate, that are not satisfied prior to the Closing Date;
(iii) use its commercially reasonable efforts to (A) preserve its present business operations and organization (including, without limitation, management and the sales force) and (B) preserve its present relationship with those customers and suppliers set forth on Schedule 6.22;
(iv) maintain (A) all of the material assets and properties of RxCentric in their business current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of RxCentric in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of RxCentric in the ordinary course of business consistent with past practices in all material respects;
practice, (iiB) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures continue to collect Accounts Receivable and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) pay accounts payable (other than the Capital Expenditures described in clauses (Bdisputed accounts) utilizing normal procedures and without discounting or accelerating payment of such accounts and (C) following), (B) subject comply in all material respects with all contractual and other obligations applicable to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December operations of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006RxCentric;
(ivvi) pay Taxes as they come due and payable (except for Taxes being contested comply in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance all material respects with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operationsapplicable laws, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers Environmental Laws; and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise expressly contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writingwith the prior written consent of Allscripts, which consent RxCentric shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not tonot:
(ivii) materially (A) increase the annual level of compensation of any employee of RxCentric, (B) increase the annual level of compensation payable or to become payable by RxCentric to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the Company Liens referenced ordinary course consistent with past practice or in Section 6.08such amounts as are fully reserved against in the Financial Statements, permit (D) increase the coverage or allow benefits available under any Lien securing (or create any new) severance pay, termination pay, vacation pay, awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of RxCentric or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which RxCentric is a party or involving a director, officer or employee of RxCentric in his or her capacity as a director, officer or employee of RxCentric;
(viii) except for trade payables, advances for employee reimbursable expenses and for indebtedness for borrowed money against incurred in each case in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(ix) subject to any Lien any of the Purchased Assetsproperties or assets (whether tangible or intangible) of RxCentric;
(iix) amendacquire any material properties or assets or sell, modifyassign, enter intotransfer, grant waiver convey, lease or otherwise dispose of any of the material term of, properties or give any material consent with respect to, any Material Contract assets (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total for fair consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies)practice) of RxCentric;
(ivxi) commit cancel or compromise any debt or claim due to incur Capital Expenditures after the Closing Date in excess RxCentric or waive or release any material right of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred RxCentric except in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Personpractice;
(vixii) fail to maintain its partnership or corporate existence or consolidate with enter into any other Person or acquire commitment for capital expenditures in excess of $10,000 for any individual commitment and $25,000 for all or substantially all of commitments in the assets of any other Personaggregate;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(xxiii) enter into, modify or terminate any labor or collective bargaining agreement of either Company RxCentric or, through negotiations negotiation or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount organization with respect to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000RxCentric;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, with any corporation or other entityPerson, and not or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other PersonPerson (other than advances for reimbursable employee expenses);
(xv) make any change in any method of accounting for Tax or financial accounting purposes (except as required by GAAP), make or revoke any Tax election or settle or compromise any Tax dispute; or
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do anything prohibited by this Section 7.1 or anything which would make any of the foregoing. Notwithstanding representations and warranties of RxCentric in this Agreement untrue or incorrect in any material respect as of any time through and including the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsEffective Time.
Appears in 1 contract
Sources: Asset Purchase Agreement (Allscripts Healthcare Solutions Inc)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during During the Interim Period, Seller will cause except (1) as required or expressly permitted by the Companies to:
(i) operate the Facilities and their business in the ordinary course provisions of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following)this Agreement, (B2) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 Section 6.02(a) of the Seller Disclosure Schedule, (3) as may be required under applicable Law or as consented a Contract or in response to by Buyer in writing, an emergency or (4) with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Sellers shall (A) cause each Acquired Company to operate in the ordinary course in all material respects consistent with past practice and except for matters relating (B) use their commercially reasonable efforts to (1) preserve, maintain and protect the Excluded Assetsassets and properties of each Acquired Company, (2) comply with Laws, Material Permits and Material Contracts and (3) maintain all material relationships with customers, suppliers and Governmental Entities. Without limiting the foregoing, during the Interim Period Period, except (w) as expressly permitted by the provisions of this Agreement, (x) as set forth in Section 6.02(a) of the Seller Disclosure Schedule, (y) as may be required under applicable Law or a Contract or in response to an emergency or (z) with the prior written consent of the Purchaser (which consent shall not (with respect to the Companiesbe unreasonably withheld, conditioned or delayed), the Sellers shall cause each of the Non-Company Affiliates Acquired Companies not to (with respect to do the Companies), and cause the Companies not tofollowing:
(i) sell, transfer, convey, abandon, cancel or otherwise dispose of any material Assets, other than (A) sales, transfers, conveyances abandonments, cancelations or other dispositions of obsolete fixtures, obsolete equipment and obsolete tangible personal property or (B) distributions by such Acquired Company to the Company Liens referenced in respective Seller of cash pursuant to Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any 6.15(b); provided that such distributions are excluded from the calculation of the Purchased AssetsNet Working Capital of such Acquired Company as of the Closing Date (including, for the avoidance of doubt, in the calculations of the Estimated Net Working Capital Adjustment Amount and the Closing Date Net Working Capital Adjustment Amount);
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(viiiii) issue except for any Affiliate Obligation that is subject to Section 6.02(c), enter into, terminate, materially amend, grant any waiver of any material term under, or grant any material consent with respect to any Material Contract (or any Contract that would be a Material Contract if in existence on the date hereof);
(iv) except with respect to the change or renewal of the Title V air operating permits as provided in Section 6.02(d), enter into or modify, terminate, cancel, renew or assign any Material Permit or any permit related to the Milford Uprate, other than any Material Permit that will expire prior to the Closing by its terms, and other than the renewal of any Material Permit in a timely fashion without material modifications to the terms of such Material Permit, except as may be required by applicable Law;
(v) issue, reserve for issuance, pledge or otherwise encumber, redeem or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Companyits respective equity interests;
(viiivi) liquidate, dissolve, recapitalize, reorganize dissolve or otherwise wind up its business or operations;
(ixvii) (A) hire or promote purchase any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits equity securities of any employee, Person;
(C) establish any new compensation or Benefit Plans, (Dviii) amend or modify its respective Organizational Documents in a manner adverse to Purchaser;
(ix) effect any Company Planrecapitalization, reclassification or other change in its capitalization;
(Ex) amend acquire any asset or modify make or commit to incur any Seller Plan insofar as capital expenditure (i) in excess of $500,000 individually and $1,000,000 in the aggregate, other than capital expenditures that are fully funded prior to Closing or (ii) in connection with the Milford Uprate;
(xi) engage in any material new line of business;
(xii) other than any Indebtedness for borrowed money or capitalized lease obligations or Liens which will be discharged at Closing, create, incur or assume any such amendment Indebtedness or modification relates solely grant any Lien on any of its assets or properties (other than any Permitted Liens);
(xiii) settle any Claim or compromise or settle any liability, unless the amount of such settlement or compromise involves only monetary obligations and does not exceed $500,000, individually, or $1,000,000, in the aggregate, for all such amounts under this Section 6.02(a)(xii), in excess of the amounts of (A) any proceeds received from any insurance policies in connection with such settlement or compromise or (B) the amount of such settlement or compromise reflected on the Financial Statements (including the notes thereto)
(xiv) cancel or materially change coverage under any Insurance Policy (other than where such change is necessary because existing coverage is no longer available on commercially reasonable terms);
(xv) except as may be required to Affiliate Employees meet the requirements of applicable Laws or former GAAP, change any accounting method or practice in a manner that is inconsistent with past practice;
(xvi) cause or allow to be hired, or hire for its account any employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected except in the ordinary course of business consistent with past practicespractice to fill any vacancy resulting from the termination of employment of an employee; or hire any plant manager without the Purchaser’s prior written consent, changes required pursuant to applicable Lawswhich such consent shall not be unreasonably withheld, conditioned or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Datedelayed;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practicespractice, grant any increase in the compensation or severance pay to any Person who will be a Continuing Employee, except, in the case of a material increase in severance pay, if the Seller or any of its Affiliates (other than the Acquired Companies after the Closing) will be solely responsible therefor, or adopt, enter into or materially amend any Benefit Plan in respect of any Person who will be Acquired Company Related Employees;
(xxixviii) cancelmake any change in its Tax accounting or Tax reporting principles, settle methods or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchasepolicies, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swapmake any new, or other arrangementchange any existing, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes, amend any Tax Return, settle any Tax liability, enter into any Contract with respect to Taxes, enter into any settlement or closing agreement with respect to Taxes with any Taxing Authority, in each case, to the extent such change, election, settlement, Contract or fail agreement could reasonably be expected to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP)give rise to a material adverse consequence to an Indemnified Purchaser Entity;
(xxviixix) amend take any action that would jeopardize the exempt wholesale generator status of or modify its Charter Documentsthe market based rate authority granted to each of the Acquired Companies; or
(xxviiixx) agree or commit to do any of the foregoing. .
(b) Notwithstanding anything to the foregoingcontrary set forth in Section 6.02(a), prior to the Closing, any Acquired Company may transfer ownership of or any other interest in any of the assets set forth in Section 6.02(b) of the Seller may permit Disclosure Schedule to the Companies respective Seller or any Affiliate of such Seller (other than the Acquired Companies).
(c) Notwithstanding anything to take commercially reasonable actions with respect the contrary set forth in Section 6.02(a): prior to emergency situations and to comply with applicable Law so long as the Closing, each Seller shall promptly inform Buyer cause (at its sole cost and expense and without right to any contribution or reimbursement from either of the Acquired Companies or Purchaser) all obligations, Contracts or other liabilities between its respective Acquired Company, on the one hand, and either Seller, the other Acquired Company or any of its Affiliates (other than such Acquired Company), on the other hand, to be terminated and of no further force and effect, with no obligations arising as a result of or surviving such termination.
(d) Prior to the Closing, each Seller shall reasonably consult with the Purchaser in connection with the application for renewal or change of the Title V air operating permits, whether such renewal has been submitted prior to the date hereof or to be filed after the date hereof, by (i) providing periodic updates to the Purchaser of material developments in connection with such application, (ii) sharing with the Purchaser notices, drafts, requests for information and other material correspondence to and from the applicable Governmental Entity (including allowing Purchaser the opportunity to review drafts before filing), (iii) notifying the Purchaser in advance of any material meetings, conference calls or other proceedings with the applicable Governmental Entity in connection with such application and (iv) considering in good faith the Purchaser’s input in connection with such notices, drafts, request for information, correspondence, meetings, conference calls and proceedings. Each Seller shall not agree to the finalization of such emergency actionsrenewal of the Title V air operating permit for its Facility on terms that are materially less favorable, in the aggregate, to Purchaser than those set forth in the existing Title V permit without the prior written consent of the Purchaser (which shall not be unreasonably withheld, conditioned or delayed).
(e) At the request of Purchaser, prior to Closing, Sellers shall, and shall cause their Affiliates to, assign to Milford any consulting or engineering contracts primarily relating to the Milford Uprate to which Sellers or their Affiliates are a party.
Appears in 1 contract
Conduct of Business Pending the Closing. (a) Except During the Interim Period, (i) Buyers shall use their respective commercially reasonable efforts to continue to operate the Acquired Assets in accordance with past practices and the Co-Owner Agreements and Fuel Agreement and (ii) except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December prior written consent of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating the Buyers shall not make any material changes in their accounting systems, policies, principles or practices related to the Excluded AssetsFacilities or Seller’s ownership share of the Facilities, during other than changes required by Law or changes which would not alter its methodology for valuing the assets comprising the Pre-Paid Amount or for calculating Facility-related costs and Seller’s share thereof.
(b) During the Interim Period Seller Period, the Buyers shall not (continue to provide monthly invoices with respect to the Companies), shall cause the Non-Company Affiliates not to Seller’s ownership share (with respect determined pursuant to the Companies)Fuel Agreement and Operation Agreements) of the Fuel Costs, Outstanding Fuel and O&M Costs, Outage Costs, and cause Outstanding Prorated Property Taxes.
(c) During the Companies not to:
Interim Period, Seller shall (i) comply with its obligations under the Co-Owner Agreements and other than Assumed Contracts and, except as contemplated by the Company Liens referenced in Section 6.08Restructuring, permit or allow any Lien securing indebtedness for borrowed money against any of otherwise continue to own the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into Acquired Assets in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);and (ii) not create any Encumbrances on its Interests, except for Permitted Encumbrances.
(ivd) commit The Parties acknowledge that, this Agreement is not intended to incur Capital Expenditures after the Closing Date modify or amend in excess any way any of the applicable amount shown on Schedule 6.02(b)(iv);provisions of the Co-Owner Agreements or Fuel Agreement, except as provided herein as of Closing.
(ve) other than trade payables incurred During the Interim Period, Seller shall continue to participate in the Base Residual Auction for PJM capacity in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Datepractice. Section 2.2(m) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securitiesSeller Disclosure Schedule will be updated to reflect these transactions, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for following the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution result of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsauction.
Appears in 1 contract
Conduct of Business Pending the Closing. (a) Except From the Signing Date until the earlier to occur of the Closing or the termination hereof, except as otherwise expressly required or contemplated by the transactions contemplated by this Agreement or set forth in Schedule 6.02the Ancillary Agreements, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer Buyers in writing, writing (which consent shall not be unreasonably withheld, conditioned or delayed), each Seller shall:
(a) operate the Business in the Ordinary Course of Business;
(b) use commercially reasonable efforts to keep the Business and Assets substantially intact, including the present operations, physical facilities, working conditions and relationships with dealers, vendors, suppliers, customers and Governmental Entities;
(c) use commercially reasonable efforts to operate the Business and own and use the Assets in compliance, in all material respects, with all applicable Laws;
(d) not sell, lease or otherwise transfer or dispose of any of the Assets, except in the Ordinary Course of Business;
(e) use commercially reasonable efforts to maintain all qualifications of such Seller (including Permits) that are required for matters it to own the Owned Real Properties or to lease the Leased Real Properties or to carry on the Business in accordance with Section 5.2(a);
(f) except as set forth on Schedule 5.2(f), use commercially reasonable efforts to (i) maintain the Assumed Contracts in full force and effect, (ii) perform in all material respects its obligations thereunder and (iii) not enter into any agreement or other arrangement to extend, modify or renew any of the Assumed Contracts;
(g) use commercially reasonable efforts to preserve all rights, privileges, franchises and other authority adequate for the conduct of the Business as currently conducted;
(h) not enter into (i) any arrangement containing any limitation or restriction of any nature on the ability of the Business to operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any other restrictive covenant, except in connection with Section 5.1(a) or (ii) any arrangement containing or granting most favored nations or similar pricing provisions;
(i) not pledge or mortgage any of the Assets or subject any of the Assets to any Lien (or permit any of the Assets to be subjected to any Lien) of any nature whatsoever, other than Permitted Liens or Liens that will be released at or prior to Closing;
(j) use commercially reasonable efforts to maintain the Assets in the substantially the same operating condition and repair consistent with all applicable Laws and past practices, ordinary wear and tear excepted;
(k) use commercially reasonable efforts to maintain in full force and effect without modification (other than in the Ordinary Course of Business) all material insurance policies relating to the Excluded AssetsBusiness, during the Interim Period Seller shall Assets or the Assumed Liabilities;
(l) pay or cause to be paid the debts, Taxes and other obligations of the Business prior to delinquency;
(m) not (materially change or modify its credit, collection or payment policies, procedures, or practices, including fail to pay or delay payment of payables or other liabilities, with respect to the Companies), shall cause the Non-Company Affiliates Business;
(n) not to liquidate or dissolve;
(with respect to the Companies), and cause the Companies o) not to:
(i) grant any Station Operation Employees or Non-Operation Support Employees any loan or, except in the Ordinary Course of Business, increase in wages, salary, commissions, bonuses, severance, termination payments, pension or other than compensation, increase in benefits, or accelerate the Company Liens referenced vesting or payment of any compensation or benefits for any Station Operation Employees or Non-Operation Support Employees or (ii) enter into any employment arrangements with any Station Operation Employees or Non-Operation Support Employees;
(p) continue to conduct physical counts of all Inventory in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any the Ordinary Course of Business at each retail store included in the Purchased Assets;
(iiq) amend, modify, enter into, grant waiver of not cancel or waive any rights related to the Assets or commence any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior Proceedings relating to the Execution Date)Assets, except in each case as would not reasonably be expected to impair or delay the transactions contemplated by this Agreement or adversely affect Buyers’ ownership or operation of the Business or Assets following Closing;
(r) not relocate any of the Assets to a location other than at the Station Property at which such Assets are customarily located, other than in the Ordinary Course of Business;
(s) maintain the books, accounts and records (financial, Inventory, repair and maintenance and otherwise) of the Business in the Ordinary Course of Business;
(t) not (i) increase Inventory in an amount not in the Ordinary Course of Business, (ii) fail to replenish Inventory in the Ordinary Course of Business or (iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend make any Contract involving total consideration throughout its term commitment in excess of $1,000,000 (other the normal, ordinary and usual requirements of the Business, consistent with the past practice methodologies customarily used by Sellers for determining such needs, or at any price in excess of the then-usual current market price or upon terms and conditions more onerous to the Business than Contracts entered into in the ordinary course of business those consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies)of Sellers;
(ivu) commit except in the Ordinary Course of Business, not (i) make, change or revoke any material Tax election, settle or compromise any material Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to incur Capital Expenditures any taxing authority to change) any material aspect of its method of accounting for Tax purposes that, in each case, would increase the Tax Liabilities of Buyer for any period (or portion thereof) after the Closing Date or (ii) prepare or file any Tax Return (or any amendment thereof) other than any Tax Return that relates solely to Seller Taxes unless such Tax Return shall have been prepared in excess of a manner consistent with past practice and Sellers shall have provided Buyers a copy thereof (together with supporting papers) at least three (3) Business Days prior to the applicable amount shown on Schedule 6.02(b)(iv)due date thereof;
(v) not merge (or be merged) with or into any other than trade payables incurred in Person (including any other Seller), except as would not reasonably be expected to (i) impair or delay the ordinary course transactions contemplated by this Agreement, (ii) adversely affect Buyers’ ownership of business consistent with past practices the Business or accounts payable the Assets following Closing or (iii) adversely affect the Buyer Indemnified Parties’ indemnification rights pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) Article VIII or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Personcollectability thereof;
(viw) fail to maintain its partnership not enter into any agreements, programs or corporate existence or consolidate other arrangements with any other Person that (i) any arrangement containing any limitation or acquire all or substantially all restriction of any nature on the ability of the assets of Business to operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any other Person;
restrictive covenant; (viiii) issue any arrangement containing or sell any partnership interests granting most favored nations or securities, similar pricing provisions; or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, (Biii) except with respect to increases in compensation that, but for the timing of the grant thereof, are actions in the ordinary course Ordinary Course of businessBusiness, grant any increase action that would result in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely increased Liabilities to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreementthird parties under an Assumed Contract; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;and
(x) enter intonot authorize, modify or terminate any labor or collective bargaining agreement of either Company orcontract, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease commit or otherwise dispose of agree whether in writing or otherwise to take any of the material Purchased Assets;
actions set forth in clause (xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Datec) or clauses (Ch)-(w) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsthis Section 5.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunoco LP)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during During the Interim Period, Seller will cause the Companies to:
except (i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
as required or otherwise expressly contemplated this Agreement, (ii) promptly notify Buyer as set forth in Section 6.02(a) of any breach of any representationthe Seller Disclosure Schedule, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following)required under applicable Law, (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come required to prevent or mitigate an imminent threat or danger to life or property due and payable to an emergency (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
but the Seller shall provide notice of such emergency to the Purchaser as soon as reasonably practicable upon the occurrence of such emergency) or (v) use their commercially reasonable efforts to with the prior written consent of the Purchaser (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed), and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-each Acquired Company Affiliates not to (with respect to A) operate the Companies), and cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into Facilities in the ordinary course of business and in compliance in all material respects with all applicable Laws, material Permits and material Contracts (other than Affiliate Obligations) and (B) use its commercially reasonable efforts to (1) preserve, maintain and protect the assets and properties of such Acquired Company, (2) maintain its material Permits and material Contracts (other than any Affiliate Obligations), (3) maintain all material relationships with customers, suppliers and Governmental Entities, and (4) complete each of the maintenance activities referenced in the definition of “Maintenance Adjustment Amount” consistent with past practices which will Good Industry Practices; provided that the completion of the maintenance activities in this clause (4) shall not be fully performed prior considered in determining whether the condition set forth in Section 7.02(a) has been satisfied.
(b) Without limiting the foregoing, during the Interim Period, except (1) as required or otherwise expressly contemplated by this Agreement, (2) as set forth in Section 6.02(b) of the Seller Disclosure Schedule, (3) as required under applicable Law, (4) as required to prevent or mitigate an imminent threat or danger to life or property due to an emergency (but the Seller shall provide notice of such emergency to the Closing without further liability Purchaser as soon as reasonably practicable upon the occurrence of such emergency) or (5) with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), the Seller shall cause each Acquired Company to the Companies);not:
(ivi) commit to incur Capital Expenditures after sell, transfer, convey, abandon, cancel or otherwise dispose of any material assets, other than (A) sales, transfers, conveyances, abandonments, cancelations or other dispositions of obsolete fixtures, equipment and tangible personal property no longer used or useful in the Closing Date in excess business of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred Acquired Companies in the ordinary course of business consistent with past practices or (B) distributions by any Acquired Company to the Seller of cash and accounts payable receivable pursuant to Section 6.16(b); provided that such distributions are reflected in the Material Contracts (or Contracts entered into after calculation of the Execution Date that would be Material Contracts if entered into prior to Net Working Capital of the Execution Acquired Companies as of the Closing Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(viii) fail acquire any asset or property or make or commit to maintain its partnership make capital expenditures, in each case, in excess of $500,000 individually or corporate existence $1,000,000 in the aggregate except to the extent set forth on Annex C;
(iii) merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(viiiv) issue except for any Affiliate Obligation that is subject to Section 6.02(c), enter into, terminate, materially amend, grant any waiver of any material term under, grant any material consent with respect to, or fail to comply in any material respect with, any Material Contract (or any Contract that would be a Material Contract if in existence on the date hereof);
(v) enter into or modify, terminate, cancel, renew or assign any material Permit, other than any material Permit that will expire prior to the Closing by its terms or the renewal of any material Permit in a timely fashion without material modifications to the terms of such material Permit, except as may be required by applicable Law;
(vi) issue, reserve for issuance, pledge or otherwise encumber, redeem or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Companyits respective equity interests;
(viiivii) liquidate, dissolve, recapitalize, reorganize dissolve or otherwise wind up its business or operations;
(viii) purchase any equity securities of any Person;
(ix) amend or modify its respective Organizational Documents;
(x) effect any recapitalization, reclassification or other change in its capitalization;
(xi) engage in any new line of business;
(xii) create, incur or assume any Indebtedness or issue debt securities, or grant or permit to exist any Lien on any of its assets or properties (other than any Permitted Lien);
(xiii) settle any Claim or compromise or settle any Liability, unless (A) hire the amount of such settlement or promote any employeecompromise does not exceed $1,000,000, individually, or $2,000,000, in the aggregate, for all such amounts under this Section 6.02(b)(xiii), (B) except with respect the payment of such amount, to increases the extent not paid prior to the Closing, is reflected in compensation that, but for the timing calculation of the grant thereof, are in Net Working Capital of the ordinary course Acquired Companies as of business, grant any increase in the compensation or benefits of any employeeClosing Date, (C) establish any new compensation such settlement or Benefit Planscompromise includes a full release of the Acquired Companies from all Liabilities, and (D) amend such settlement or modify compromise would not impose any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors restrictions on the conduct of the Companies, business of the Acquired Companies or require any admission of guilt by an Acquired Company;
(Fxiv) enter into cancel or modify materially change coverage under any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected Insurance Policy;
(xv) except in the ordinary course of business consistent with past practicespractice and current market practice, changes required pursuant grant any increase in the compensation or severance pay to applicable Lawsany Person who will be a Continuing Employee, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contractexcept, in which the case of a material increase in severance pay, if the Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside Affiliates (other than the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment Acquired Companies after the execution of this Agreement of consideration in excess of $1,000,000;
(xivClosing) except in the ordinary course of businesswill be solely responsible therefor, acquire any material properties or assets or selladopt, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into materially amend any merger or consolidation with, any corporation or other entity, and not engage Benefit Plan in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities respect of any other PersonPerson who will be a Continuing Employee;
(xvi) make any material change in its Tax accounting or Tax reporting principles, methods or policies, except as otherwise required by GAAP or make any new, or change any existing, election with respect to Taxes, amend any Tax Return, settle any Tax liability, enter into any Contract with respect to Taxes, enter into any settlement or closing agreement with respect to Taxes with any Taxing Authority, in each case, to the extent such change, election, settlement, Contract or agreement could reasonably be expected to give rise to a material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Dateadverse consequence to an Indemnified Purchaser Entity;
(xvii) enter into cause any Contract that restrains, restricts, limits or impedes the ability of Acquired Company to cease to be treated as a Facility to conduct any business or line of business in any geographic areadisregarded entity for federal income tax purposes;
(xviii) except make any changes in the ordinary course of businessfinancial accounting methods, terminate, amend, restate, supplement principles or waive any rights under any (A) Assigned Contract, (B) any Material Contract practices (or Contract entered into after the Execution Date that would change an annual accounting period), except insofar as may be required by a Material Contract if entered into prior to the Execution Date) change in GAAP or (C) any Permitapplicable Law;
(xix) enter into, modify into any reactive-power-related settlement at FERC for either of the Acquired Companies agreeing to a revenue requirement that is less than 90% of the revenue requirement in such Acquired Company’s Reactive Tariff or renew that imposes any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or non rate-related condition in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documentssettlement; or
(xxviiixx) agree or commit to do any of the foregoing.
(c) Prior to the Closing, the Seller shall cause (i) all Liabilities of each Acquired Company under each Affiliate Obligation to be terminated, any amount owed as a result of such termination to be discharged, and the Acquired Companies to have no further Liabilities thereunder and (ii) all Liabilities of the Acquired Companies to the Seller Parties and their Affiliates to be terminated and discharged, in each case, to be effective as of the Closing. In the event that, after the Closing, any Acquired Company has any Liabilities under any Affiliate Obligation, upon the written request of the Purchaser, the Seller shall promptly cause all such Liabilities to be terminated and discharged, and the Acquired Companies shall have no Liabilities as a result of such termination or otherwise, irrespective of when such Liabilities arose. Notwithstanding the foregoing, this Section 6.02(c) shall not apply to any Contract entered into after the Closing or any Contract entered into prior to the Closing as expressly contemplated by this Agreement and in form and substance reasonably satisfactory to the Purchaser, in either case, between any Acquired Company, on the one hand, and any Seller may Party or any of its Affiliates, on the other hand.
(d) Prior to the Closing, the Seller shall, and shall cause DPG and ▇▇▇▇▇▇▇▇▇ to, reasonably consult with the Purchaser in connection with the application for renewal of the ▇▇▇▇▇▇▇▇▇ Facility’s Title V permit by (i) providing periodic updates to the Companies Purchaser of material developments in connection with such application, (ii) sharing with the Purchaser notices, drafts, requests for information and other material correspondence to take commercially reasonable actions and from the Pennsylvania Department of Environmental Protection, (iii) notifying the Purchaser in advance of any material meetings, conference calls or other proceedings with respect to emergency situations the Pennsylvania Department of Environmental Protection in connection with such application and to comply (iv) considering in good faith the Purchaser’s input in connection with applicable Law so long as such notices, drafts, request for information, correspondence, meetings, conference calls and proceedings. The Seller shall promptly inform Buyer not agree to the finalization of such emergency actionsrenewal of the Title V permit on terms that are materially less favorable, in the aggregate, to ▇▇▇▇▇▇▇▇▇ than those set forth in the existing Title V permit without the prior written consent of the Purchaser.
(e) Prior to the Closing, the Seller shall, and shall cause DPG and the Acquired Companies to, provide periodic updates to the Purchaser of material developments in connection with the submittal to and approval by PJM of a Fuel Cost Policy for each Acquired Company; provided, however, that none of the Seller, DPG or the Acquired Companies shall be required to provide Purchaser with any information related thereto that the Seller reasonably believes is commercially sensitive.
(f) Nothing contained in this Section 6.02 is intended to give the Purchaser the right to control or direct the operations of the Acquired Companies prior to the Closing. Prior to the Closing, the Seller and the Acquired Companies shall exercise complete control and supervision over the Acquired Companies’ operations subject to the limitations in this Section 6.02.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dynegy Inc.)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02Between the Effective Date and the Closing Date, during the Interim Period, each Seller will cause the Companies toshall:
(i) operate the Facilities and their conduct its business in the ordinary course of business consistent with past practices in all material respectsrespect to the Assets;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledgecontinue in full force and effect the existing insurance policies and coverage related to the Assets;
(iii) (A) make Capital Expenditures maintain the Assets in good operating condition and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) repair, subject only to ordinary wear and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006tear;
(iv) pay Taxes as they come due confer with the Buyers prior to implementing any operational decisions of a material nature affecting the Assets;
(v) maintain all books and payable records of such Seller relating to the Assets;
(except vi) cooperate with the Buyers and assist the Buyers in identifying the Governmental Authorizations required by the Buyers to own and operate the Assets from and after the Closing Date and either transferring existing Governmental Authorizations of such Seller to the Buyers, where permissible, or reasonably assisting the Buyers so that the Buyers may file the requisite documentation in order to obtain new Governmental Authorizations issued in favor of the respective Buyers;
(vii) upon request from time to time, execute and deliver all documents that may be reasonably necessary or desirable in the opinion of the Buyers to consummate the transactions contemplated under this Agreement and without further consideration;
(viii) not take any action which would give rise to any claim against any Party for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP)a finder’s fee, broker commission or like payment; and
(vix) use their commercially reasonable efforts to (A) preserve their present business operationswithout limiting the foregoing, organization (including management) consult with the Buyers regarding all significant developments, transactions and goodwill with respect proposals relating to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the FacilitiesAssets.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writingBetween the Effective Date and the Closing Date, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), Sellers shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not Forbes Mexico Personnel to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(ii) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up conduct its business or operations;
(ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(xii) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain continue in full force and negotiate matters in good faith, as contemplated by effect the Collective Bargaining Contract existing insurance policies and applicable Lawscoverage;
(xiiii) implement any layoff of employees that could implicate make no material changes in personnel without the WARN ActBuyers’ prior written consent;
(xiiiv) enter into confer with the Buyers prior to implementing any Contract under which either Company advances or loans any amount to any operational decisions of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000a material nature;
(xivv) except maintain all books and records of Forbes Mexico Personnel in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;; and
(xvvi) enter into or agree to enter into not modify any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts compensation arrangements with respect to the sale any employees of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsForbes Mexico Personnel without Buyers’ prior written consent.
Appears in 1 contract
Sources: Asset and Membership Interest Purchase Agreement (Forbes Energy Services Ltd.)
Conduct of Business Pending the Closing. (a) Except During the period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, except as otherwise expressly contemplated or permitted by this Agreement Agreement, or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December prior written consent of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writingThin Crust, which consent shall not be unreasonably withheld, conditioned or delayed, Deep Dish shall, and shall cause the Deep Dish Subsidiaries to, except for matters relating as required by Law, (i) carry on its business in the ordinary course consistent with past practice in all material respects; (ii) use its commercially reasonable efforts to preserve its present business organization and relationships; (iii) use its commercially reasonable efforts to keep available the Excluded Assetspresent services of its employees and independent contractors; and (iv) use its commercially reasonable efforts to preserve its rights, franchises, goodwill and relations with its customers and others with whom it conducts business.
(b) During the period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, except as expressly contemplated or permitted by this Agreement, or with the prior written consent of Deep Dish, which consent shall not be unreasonably withheld, conditioned or delayed, Thin Crust shall, and shall cause the Thin Crust Subsidiaries to, except as required by Law, (i) carry on its business in the ordinary course consistent with past practice in all material respects; (ii) use its commercially reasonable efforts to preserve its present business organization and relationships; (iii) use its commercially reasonable efforts to keep available the present services of its employees and independent contractors; and (iv) use its commercially reasonable efforts to preserve its rights, franchises, goodwill and relations with its customers and others with whom it conducts business.
(c) Without limiting the generality of Sections 6.1(a) and 6.1(b), during the Interim Period Seller shall not (with respect period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to the Companies)Section 8.1 hereof, neither Deep Dish nor Thin Crust shall, and Deep Dish shall cause the Non-Company Affiliates not to (with respect to the Companies), Deep Dish Subsidiaries and Thin Crust shall cause the Companies Thin Crust Subsidiaries not to:
, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed: (i) issue or agree to issue any Equity Securities, or reclassify, exchange, recapitalize, or otherwise amend the terms of its Equity Securities, other than issuances of Equity Securities upon the Company Liens referenced in Section 6.08exercise of Deep Dish Options or Thin Crust Options, permit or allow any Lien securing indebtedness for borrowed money against any as applicable, outstanding as of the Purchased Assets;
date hereof, (ii) amenddeclare or make any payments or distributions to stockholders or members or purchase or redeem any capital stock or membership interests, modifyexcept for (A) distributions by Thin Crust and the Thin Crust Subsidiaries to pay Taxes through the Closing Date, enter intoand (B) distributions by the Deep Dish Subsidiaries to Deep Dish to pay Taxes through the Closing Date, grant waiver of (iii) incur any material term Indebtedness, other than in the ordinary course of business, (iv) make or commit to make any material capital expenditures or capital additions not consistent with the current budget that has been previously delivered to the other party, (v) acquire, commit to acquire or sell, assign, dispose of, mortgage, subject to any Lien or give otherwise encumber or transfer any material consent asset or line of business, individually or in the aggregate, (vi) enter into any transactions with respect totheir respective Affiliates other than pursuant to written agreements existing as of the date hereof; provided, that any Material Contract (such written agreements may not be amended, restated, supplemented or Contract entered into after the Execution Date that would be a Material Contract if entered into modified prior to the Execution Date);
Closing Date without the prior written consent of each of Deep Dish and Thin Crust, (iiivii) except in respect increase the compensation or other benefits (including any termination, severance, change of Capital Expenditures permitted by Section 6.02(b)(iv)control bonus, enter intoequity incentive or similar compensation) payable to their respective employees, terminate officers, directors, or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (service providers, other than Contracts entered into (A) in the ordinary course of business consistent with past practices which will practice or (B) pursuant to written agreements with any Deep Dish Key Employees or Thin Crust Key Employees, as applicable, in existence on the date hereof and disclosed in the Deep Dish Disclosure Schedule or the Thin Crust Disclosure Schedule, as applicable, (viii) except for the Employment Agreements expressly contemplated by this Agreement (which, for the avoidance of doubt, shall not be fully performed amended, restated, supplemented, or modified prior to the Closing Date without further liability to the Companiesprior written consent of each of Deep Dish and Thin Crust);
(iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv);
(v) other than trade payables incurred in the ordinary course of business consistent with past practices , enter into or accounts payable pursuant to the Material Contracts (amend any employment agreement or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contractssimilar agreement, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire effect any internal promotions or promote changes in title of any employeepersonnel above a Director or comparable title, (Bx) except enter into, amend, modify, accelerate or terminate any Deep Dish Material Contract or Thin Crust Material Contract; provided, that (1) Deep Dish and its Subsidiaries may amend, modify or terminate any Deep Dish Material Contracts with respect to increases in compensation that, but for the timing of Deep Dish Restaurant Clients and the grant thereof, are Deep Dish Suppliers in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) and enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any would constitute such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except Contracts in the ordinary course of business, acquire and (2) Thin Crust and its Subsidiaries may amend, modify or terminate any material properties or assets or sellThin Crust Material Contracts with the Thin Crust Restaurant Clients, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets;
(xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, Thin Crust Corporate Clients and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except Thin Crust Suppliers in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered and enter into after the Execution Date that Contracts which would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material constitute such Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;business, or (xi) take any other action that, if not listed on the applicable Schedule, would cause a breach of representations and warranties set forth in Section 3.7 or 4.7, as applicable.
(xxid) cancelDuring the period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, settle none of Parent, DD Acquisition Sub, or compromise debts having a value TC Acquisition Sub will conduct any business activities or incur any liabilities, except as necessary in excess connection with this Agreement and consummation of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;the transactions contemplated hereby.
(xxiie) enter into a fuel purchaseDuring the period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, storageThin Crust Equityholder Corp. will not conduct any business activities or incur any liabilities other than those incidental to its holding of Thin Crust interests or otherwise in connection with the consummation of the transactions contemplated by this Agreement and/or any Related Agreements; provided, transportation, option, swap or other arrangement with a term over one year;
that it is understood and agreed that that Thin Crust Equityholder Corp. may (xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvii) make or revoke any material election with respect repurchases of its outstanding capital stock pursuant to Taxes or fail to pay any Taxes Article IV, Section 4.8 of the Companies as they become due certificate of incorporation of Thin Crust Equityholder Corp. (collectively, the “Permitted Repurchases”) and/or (ii) declare and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend pay one or modify its Charter Documents; or
(xxviii) agree or commit more dividends to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actionsThin Crust Equityholder Corp. Stockholders.
Appears in 1 contract
Sources: Reorganization and Contribution Agreement (GrubHub Inc.)
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during During the Interim Period, Seller will cause except (1) as required or expressly permitted by the Companies to:
(i) operate the Facilities and their business in the ordinary course provisions of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder this Agreement or any Material Adverse Effect of which Seller has Knowledge;
Related Agreement, (iii2) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as set forth on Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following5.01(a), (B3) subject as may be required under Law or Order or as reasonably required in response to NYISO any operational emergencies, equipment failures, repairs or immediate and ConEd approval, make Capital Expenditures substantially in accordance material threats to the health and safety of natural Persons or (4) with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December prior written consent of 2005, and Buyer (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall (and except for matters relating shall cause its Affiliates to with respect to any Transferred Assets, the Excluded Assumed Liabilities and the Facility) (A) operate and maintain the Facility in the ordinary course of business in accordance with past practice and prudent industry practice and (B) use its Commercially Reasonable Efforts to preserve, maintain and protect the Transferred Assets and the Facility and preserve the goodwill and relationships with the Business Employees and independent contracts with vendors, suppliers and others having business dealings with Seller or its Affiliates in connection with the Facility or the Transferred Assets. Without limiting the foregoing, during the Interim Period Period, except (w) expressly permitted or required by the provisions of this Agreement or any Related Agreement (including any action permitted or required under the Reimbursement Agreement), (x) as set forth on Schedule 5.01(a), (y) as may be required under Law or Order or in response to any operational emergencies, equipment failures, repairs or immediate and material threats to the health and safety of natural Persons or (z) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall not (and shall cause its Affiliates not to) with respect to the Companies)Transferred Assets, shall cause the Non-Company Affiliates not to (with respect to Assumed Liabilities and the Companies), and cause the Companies not toFacility:
(i) other than make any material change to the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any operations of the Purchased AssetsFacility or the levels of Inventories customarily maintained by Seller or at the Sites;
(ii) amendmake any capital expenditures not included in the operating budget of the Facility made available to Buyer prior to the date of this Agreement (except, modifyand without limiting Section 5.01(a)(w), enter intoas contemplated in Section 7.03 of the Reimbursement Agreement);
(iii) move Inventory or equipment from the Sites other than sales to Third Parties or the removal of equipment no longer in use, grant waiver in each case, in the ordinary course of business consistent with past practice;
(iv) waive, release, assign, settle or compromise any material term ofClaim by or against Seller or any Affiliate of Seller (the extent such Claim relates to the Sites or the Transferred Assets or Assumed Liabilities) or otherwise to the extent such Claim relates to the Sites, except waivers, releases, assignments, settlements or give compromises that (A) relate solely to the payment of monetary damages that will be satisfied by Seller or (B) relate solely to an Excluded Liability;
(v) enter into any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be constitute a Material Contract if entered into prior to the Execution Datedate of this Agreement or is a type of Contract contemplated in the definition of Material Contracts, except for any Material Contract (1) that does not impose any Liability on Buyer or any of its Affiliates after the Closing, or can be terminated by Buyer after the Closing without penalty upon not more than ninety (90) days' notice (2) that relates solely to an Excluded Asset or Excluded Liability or (3), without limiting Section 5.01(a)(w), as contemplated in the Reimbursement Agreement;
(iiivi) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv)further modify the JAF NDT Agreement after Seller receives the JAF NDT from ENOI, enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered (A) to transfer the assets of the Non-Qualified Decommissioning Fund into the Qualified Decommissioning Fund, at the direction of Buyer, and (B) to take actions necessary to, at the direction of Buyer, (1) invest the cash in the Qualified Decommissioning Fund and (2) rebalance the assets remaining in the Non-Qualified Decommissioning Fund after assets have been transferred to the Qualified Decommissioning Fund;
(vii) sell, lease, transfer, convey, abandon, cancel or otherwise dispose of any of the Transferred Assets or the Facility, other than in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies)practice;
(ivviii) commit encumber, pledge, mortgage or suffer to incur Capital Expenditures after the Closing Date in excess be imposed on any of the applicable amount shown on Schedule 6.02(b)(iv)Transferred Assets or the Facility any Lien other than (i) Permitted Liens or (ii) Liens caused or required to be imposed by any Governmental Authority;
(vix) enter into any commitment for the purchase of Nuclear Fuel or make any material modifications to any Contracts with respect to the purchase or delivery of Nuclear Fuel, except in connection with the Refueling;
(x) enter into any power sales agreements (or similar) with terms extending beyond Closing;
(xi) terminate, amend, supplement, modify or renew any of the Material Contracts, Emergency Preparedness Agreements or Permits;
(xii) move to the Sites any nuclear materials, except as required in connection with the Refueling;
(xiii) modify, increase or accelerate the amount, vesting or payment of any compensation or employee benefits to be paid or provided to any Business Employee, except for annual merit-based or promotion- based pay increases in the ordinary course of business, consistent with past practice, or as required by Law, any Seller Benefit Plan or an applicable CBA;
(xiv) hire any new Business Employees or recall any Business Employee on layoff as of the date hereof, except the hiring of a new Business Employee for a position included on the organization chart made available by Seller to Buyer which hiring (A) uses screening and other than trade payables incurred hiring procedures in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employee, practice and (B) except with respect to increases in compensation that, but is for a position that is below the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assetsdepartment head level;
(xv) enter into permit or agree cause any individual to enter into any merger alter his or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution toher status as, or otherwise acquire as not, a Business Employee by transferring (A) positions or (B) between Seller and any of its Affiliates (including the securities of any other PersonOther Seller Entities);
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP Law or make an applicable CBA adopt, amend or terminate any material change in its risk management policies Seller Benefit Plan (or internal controls any employee benefit plan that are less restrictive than those would be a Seller Benefit Plan if in effect on the Execution Datedate hereof) (other than amendments to broad-based Seller Benefit Plans that are applicable to all employees of Entergy and its Affiliates that participate in such Seller Benefit Plan or amendments to Seller Benefit Plans that do not increase the level of compensation and benefits payable to any Business Employee under such Seller Benefit Plan);
(xvii) enter into any Contract fail to make Commercially Reasonable Efforts to pursue currently pending regulatory approvals and Permit applications, approvals and renewals relating to the Transferred Assets that restrains, restricts, limits or impedes are reasonably necessary to operate the ability of a Facility to conduct any business or line of business in any geographic area;Facility; or
(xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit;
(xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy agreement or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documents; or
(xxviii) agree or commit commitment to do any of the foregoing. Notwithstanding .
(b) During the foregoingInterim Period, notwithstanding anything to the contrary contained in this Agreement and for the avoidance of doubt, Seller may permit and ENOI, as the Companies to take commercially reasonable actions licensed owner and operator of the Facility, shall retain the exclusive responsibility for safe operation of the Facility and nothing in this Agreement shall prevent Seller and ENOI from fulfilling any duties or obligations in connection with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer the ownership or operation of such emergency actionsthe Facility under Law, any NRC Orders or the NRC License.
Appears in 1 contract
Sources: Asset Purchase Agreement
Conduct of Business Pending the Closing. From the date of this Agreement until the Closing, except (aA) Except as set forth in Section 6.1 of the Disclosure Schedule, (B) as required by Law, (C) as otherwise contemplated by this Agreement Agreement, (D) in connection with, or set forth in Schedule 6.02as a result of, during the Interim Period, Seller will cause consummation of any of the Companies to:
Spin Transactions (iincluding as a result of (x) the Hotel Assets ceasing to be managed or operated by the employees of Parent that currently manage and operate the Facilities and their business such Hotel Assets or (y) Parent ceasing (or taking steps to cease) its operations in the ordinary course of business consistent hotel or lodging industry generally) or any action taken by Parent in furtherance thereof or (E) with past practices in all material respects;
(ii) promptly notify Buyer the prior written consent of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
Buyer (iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned):
(a) Prior to the Closing, Parent shall, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies)each Selling Subsidiary, and cause the Companies not to:
(i) use, own or operate the Real Property, the Hotels and the other than Hotel Assets in substantially the Company Liens referenced same manner as currently conducted, including by (A) entering into any Management Agreements, Franchise Agreements or other Material Contracts (or, in Section 6.08each case, permit or allow any Lien securing indebtedness for borrowed money against any of the Purchased Assets;
(iimodifications, amendments, waivers and supplements thereto) amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date);
(iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business extent consistent with the past practices which will be fully performed prior to the Closing without further liability to the Companies);
(iv) commit to incur Capital Expenditures after the Closing Date in excess operation of the applicable amount shown on Schedule 6.02(b)(iv);
Real Property or Hotel and with the consent of any Buyer (v) other than trade payables incurred provided that such Buyer’s consent shall not be required for any such modifications, amendments, waivers or supplements as may be affected automatically in the ordinary course of business consistent accordance with past practices or accounts payable pursuant to the such Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or are otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;
(vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person;
(vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company;
(viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
(ix) (A) hire or promote any employeeexpressly contemplated by this Agreement), (B) except with respect causing the Managers and Franchisors to increases in compensation that, but for continue to operate the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected Hotels in the ordinary course of business consistent with past practices, changes required pursuant including by maintaining levels of Supplies, Consumables and Retail Inventories consistent with seasonally-adjusted past practices and (C) continuing to maintain the insurance currently carried by Parent or the applicable LawsSelling Subsidiary with respect to the Hotels; and
(ii) use Reasonable Efforts to preserve each Selling Subsidiary’s (A) present operations and organization and (B) present relationships with Managers, or changes required pursuant Franchisors, Employees, landlords under the Ground Leases, Lenders, Occupants and other Persons with whom the Selling Subsidiaries have similar relationships.
(b) Prior to Contracts in effect as the Closing, Parent shall not, and shall cause each Selling Subsidiary not to, take any of the Execution Date actions set forth in clauses (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes;i) - (v) below:
(x) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any material commitment or incur any material liability to any labor organizations, except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws;
(xi) implement any layoff of employees that could implicate the WARN Act;
(xii) enter into any Contract under which either Company advances or loans any amount to any of its directors, officers, and employees outside the ordinary course of business
(xiii) enter into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000;
(xiv) except i. other than in the ordinary course of business, acquire subject any material properties of the Real Property, Hotels or assets other Hotel Assets to any Lien other than Permitted Liens;
ii. other than in the ordinary course of business or pursuant to the terms of a Material Contract, sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased AssetsHotel Assets (other than the Real Property, which is addressed in clause (iii) below);
(xv) enter into or agree to enter into any merger or consolidation withiii. sell, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution toassign, or otherwise acquire transfer any of the securities of any other PersonReal Property;
(xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive iv. other than those in effect on the Execution Date;
(xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area;
(xviii) except in the ordinary course of business, terminateenter into, amend, restate, supplement terminate or waive any rights under any (A) Assigned Contract, (B) renew any Material Contract (including all Management Agreements and Franchise Agreements), other than (A) any automatic amendments, terminations or Contract entered into after renewals pursuant to the Execution Date that would be a terms of any Material Contract if entered into prior or (B) terminations of Existing Loans (including by prepayment thereof), TRS Leases, Franchise Agreements, PILOT Agreements (to the Execution Dateextent related to the Real Property on which the Hilton Garden Inn Westbury is located) or (C) any PermitTerminating Management Agreements;
(xix) enter into, modify or renew ▇. ▇▇▇▇▇▇ any material Contracts with respect Legal Proceeding involving the Real Property or any Hotel or relating to the sale transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of energy that will cash (and no ongoing restrictions on the Real Property or Hotels to be performed after the Closing acquired directly or indirectly by either Buyer) for which Parent bears sole financial responsibility;
vi. except that would not require the payment, individually for restorations or alterations required in the aggregatecase of emergencies or material casualty or condemnation, of amounts in excess of $1,000,000;
(xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices;
(xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000;
(xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year;
(xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000;
(xxiv) enter into any speculative energy or fuel transactions;
(xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO;
(xxvi) make or revoke any material election with respect alterations to Taxes the Hotels without consent or fail to pay any Taxes approval of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP);
(xxvii) amend or modify its Charter Documentsa Buyer; or
(xxviii) vii. agree or commit to do anything prohibited by this Section 6.1(b).
(c) Notwithstanding anything in Section 6.1(a) or Section 6.1(b), in no event shall Parent be responsible for any action taken by any Manager or Franchisor, which such Manager or Franchisor is permitted to take pursuant to the terms of the foregoing. Notwithstanding applicable Management Agreement or Franchise Agreement without the foregoingconsent or approval of the applicable Selling Subsidiary, Seller may permit the Companies and Parent’s failure to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller prevent such Manager or Franchisor from taking such action shall promptly inform Buyer not, in any event, be deemed a breach of such emergency actionsthis Section 6.1.
Appears in 1 contract
Sources: Asset Purchase Agreement (Northstar Realty Finance Corp.)