Conduct of the Operations. Without in any way limiting any other obligations of each Transferor hereunder, during the period from the date of this Agreement to the Closing, each Transferor covenants that, unless it shall have obtained the written consent of Transferee, which shall not be unreasonably withheld, such Transferor shall either satisfy or cause to be satisfied the following with respect to the Contributed Assets: (a) such Transferor shall conduct the Operations only in the ordinary and normal course consistent with past practice, but in no event in a manner inconsistent with prudent industry practices and standards; (b) such Transferor shall not enter into any transaction or refrain from doing any action if such transaction or inaction would constitute a material breach of any representation, warranty, covenant or other obligation of such Transferor contained in this Agreement; (c) such Transferor shall maintain and not amend any Permits material to the Contributed Assets; (d) such Transferor shall use all commercially reasonable efforts to continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect with respect to the Contributed Assets, and shall give all notices and present all claims under all such policies of insurance in a due and timely fashion; (e) prior to the Closing, such Transferor shall give all notices and shall use all reasonable efforts to obtain all Consents described in Transferor Disclosure Schedule 3.3 (except the “Railroad License Agreements” identified therein) from all Governmental Entities or third parties; (f) such Transferor shall not, and shall cause its affiliates not to, make any amendment to, terminate or fail to use reasonable efforts to renew any Assumed Contract, or waive, amend or terminate any rights of substantial value relating to the Contributed Assets; (g) such Transferor shall not, and shall cause its affiliates not to, fail to maintain each Contributed Asset in a condition at least commensurate with the current condition thereof; (h) such Transferor shall not incur any liabilities, or assume or otherwise become obligated in regard to the liabilities of any other person relating to the Contributed Assets, other than liabilities incurred in the ordinary course of business consistent with past practice, or fail to pay or discharge when due any liabilities except those contested in good faith; (i) such Transferor shall not sell, lease, assign, transfer or otherwise dispose of any of the Contributed Assets, other than Supplies consumed in the ordinary course of business of the Operations and except for the disposition of obsolete or worn out Equipment or other assets; (j) except for Contracts entered into in the ordinary course of business, such Transferor shall not enter into any new Contracts relating to the Contributed Assets; (k) such Transferor shall not mortgage, pledge or subject any of the Contributed Assets to any Lien, except for Permitted Liens; (l) such Transferor shall not fail to maintain its books, accounts and records in the usual, regular and ordinary manner on a basis consistent with prior years; (m) such Transferor shall not fail to use all reasonable efforts to preserve intact the relationships with employees, customers, suppliers, licensors, licensees, distributors and other similar relationships established in connection with the conduct of the Operations; (n) such Transferor shall not relocate any of the Contributed Assets to a different location, other than in the ordinary course of business of the Operations and consistent with past practice; (o) such Transferor shall not permit any amendment or modification to the Alon Party Organizational Documents of Newco 1 or Newco 2; and (p) such Transferor shall not commit or agree, whether in writing or otherwise, to take any action prohibited by this Section 5.1.
Appears in 1 contract
Conduct of the Operations. Without Except as specifically provided in any way limiting any other obligations this Agreement, from May 14, 2012 until the earlier of each Transferor hereunder, during the period from Closing or the date termination of this Agreement to the Closingin accordance with Section 8.1, each Transferor covenants thatSeller Party shall, unless it and shall have obtained the written consent of Transferee, which shall not be unreasonably withheld, such Transferor shall either satisfy or cause to be satisfied the following with respect to the Contributed Assetseach Subject Entity to:
(a) such Transferor shall conduct operate and maintain the Operations only in Pipeline as a reasonably prudent operator of a pipeline would operate and maintain the ordinary and normal course consistent with past practice, but in no event in a manner inconsistent with prudent industry practices and standardsPipeline;
(b) such Transferor shall not enter into any transaction or refrain from doing any action if such transaction or inaction would constitute a material breach prior to February 28, 2013, conduct the operations of any representation, warranty, covenant or other obligation of such Transferor contained in this Agreementthe Subject Entities solely for the Specified Purpose and activities reasonably related to supporting the Specified Purpose;
(c) prior to February 28, 2013, use commercially reasonable efforts to conduct operations of the Subject Entities within the budget set forth on Schedule 1.2 or such Transferor shall maintain and not amend any Permits material to other budget approved by the Contributed AssetsCQP Board;
(d) such Transferor shall use all commercially reasonable efforts to continue to preserve, maintain and protect its respective material assets (including Material Contracts and real property leases), rights and properties in full force and effect good operating condition suitable in all policies of insurance or renewals thereof now in effect with respect to the Contributed Assets, and shall give all notices and present all claims under all such policies of insurance in a due and timely fashionmaterial respects for their intended purpose;
(e) prior to February 28, 2013, not enter into, amend or terminate any Contract unless such Contract (x) relates to the Closing, such Transferor shall give all notices Specified Purpose or activities reasonably related to supporting the Specified Purpose and shall use all reasonable efforts to obtain all Consents described (y) does not provide for any payments in Transferor Disclosure Schedule 3.3 (except connection with the “Railroad License Agreements” identified therein) from all Governmental Entities or third partiesTransactions;
(f) such Transferor shall not, cause the Subject Entities to maintain the Insurance Policies as presently in effect or insurance policies substantially similar thereto furnished by nonaffiliated third parties in the amounts and shall cause its affiliates not to, make any amendment to, terminate or fail to use reasonable efforts to renew any Assumed Contract, or waive, amend or terminate any rights types as a reasonably prudent operator of substantial value relating to the Contributed Assetsa pipeline would maintain;
(g) such Transferor shall notnot to transfer (including through a joint venture), and shall cause its affiliates not tosell, fail to maintain each Contributed Asset in a condition at least commensurate with lease, license, pledge, mortgage, dispose of, hypothecate, distribute, Encumber (other than Permitted Encumbrances) or otherwise dispose of any assets, properties (whether real, personal, tangible, or intangible) or rights of the current condition thereofSubject Entities, except for the transfer, sale or disposal of obsolete or immaterial assets or properties;
(h) such Transferor shall not incur any liabilities, amend or assume or otherwise become obligated in regard to restate the liabilities Charter Documents of any other person relating to the Contributed Assets, other than liabilities incurred in the ordinary course of business consistent with past practice, or fail to pay or discharge when due any liabilities except those contested in good faithSubject Entities;
(i) such Transferor shall not sellissue any Capital Stock or options, lease, assign, transfer or otherwise dispose of any of the Contributed Assets, other than Supplies consumed in the ordinary course of business of the Operations and except for the disposition of obsolete or worn out Equipment warrants or other assetsrights convertible into or exchangeable for Capital Stock thereof;
(j) except for Contracts entered into not sell, assign, transfer, Encumber (other than Permitted Encumbrances) or otherwise dispose of all or any portion of the Assigned Interests or any Capital Stock of the Subject Entities or grant any option to purchase or right of first refusal in the ordinary course of business, such Transferor shall not enter into connection therewith to any new Contracts relating to the Contributed AssetsPerson;
(k) such Transferor shall not mortgage, pledge or subject any of maintain all Permits and Consents required for the Contributed Assets to any Lien, except for Permitted LiensSubject Entity’s business;
(l) such Transferor shall not fail take no action that would cause CCTP to maintain its books, accounts and records in the usual, regular and ordinary manner on be treated as a basis consistent with prior yearscorporation for U.S. federal income tax purposes;
(m) such Transferor shall not fail to use acquire or purchase equity interests or all reasonable efforts to preserve intact the relationships with employees, customers, suppliers, licensors, licensees, distributors and other similar relationships established in connection with the conduct or a material portion of the Operationsassets of any Person;
(n) such Transferor shall not relocate incur or guarantee any Indebtedness or amend or modify in any material respect the terms of or refinance any Indebtedness, except in any case Indebtedness with wholly-owned Subsidiaries of CEI that will be repaid or extinguished prior to the Contributed Assets Closing Date (and which provides in its terms that remedies cannot be exercised against the Subject Entities prior to a different location, other than in the ordinary course termination of business of the Operations and consistent with past practicethis Agreement);
(o) not merge or consolidate with any Person or adopt a plan of complete or partial liquidation or authorize or undertake a dissolution, consolidation, restructuring, bankruptcy, recapitalization or other reorganization;
(p) prior to February 28, 2013, not waive, release or settle any pending or threatened litigation or other proceeding before a Governmental Entity unless (x) such Transferor shall not permit any amendment waiver, release or modification settlement, as applicable, only provides for cash payments (and no other material concessions by the Subject Entities) and (y) either (a) the total liability to the Alon Party Organizational Documents Subject Entities thereunder is less than $300,000 in any individual case and $3,000,000 in the aggregate or (b) Cheniere LP Seller contributes the capital to pay the settlement and does not include such amount in the Expenditure Reimbursement;
(q) not employ any employees;
(r) prior to February 28, 2013, not engage any independent contractors or other service providers except independent contractors and service providers related to the Specified Purpose and activities reasonably in support of Newco 1 the Specified Purpose;
(s) not enter into or Newco 2commence negotiation of any collective bargaining agreement or similar contract or agreement, or enter into, sponsor, maintain or contribute to any Plan;
(t) not enter into any Contract with CEI or its affiliates (other than the Services Agreements and the Precedent Agreement), except for such agreements that (x) are cancelled by the Buyer prior to the Closing Date, (y) do not provide for any fees or expenses paid in connection with cancellation and (z) are otherwise on arms-length terms;
(u) prior to the occurrence of one of the events described in the penultimate sentence of Section 2.7 (if at such time the Seller Parties are permitted to terminate the Agreement pursuant Section 8.1(a)(v)), not take any actions that would prevent, interfere with or materially delay the Transactions; and
(pv) such Transferor shall not authorize, commit or agreeagree to do any of the foregoing. Notwithstanding the foregoing, whether prior to the Closing Date, Cheniere CTP GP shall be permitted to distribute, sell, transfer, assign or otherwise dispose of its Capital Stock in writing or otherwise, CCCP and Frontera to take any action prohibited by this Section 5.1Cheniere GP Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cheniere Energy Partners, L.P.)
Conduct of the Operations. Without in any way limiting any other obligations of each Transferor hereunder, during the period from the date of this Agreement to the Closing, each Transferor covenants that, unless it shall have obtained the written consent of Transferee, which shall not be unreasonably withheld, such Transferor shall either satisfy or cause to be satisfied the following with respect to the Contributed Assets:
(a) such Transferor shall conduct the Operations only in the ordinary and normal course consistent with past practice, but in no event in a manner inconsistent with prudent industry practices and standards;
(b) such Transferor shall not enter into any transaction or refrain from doing any action if such transaction or inaction would constitute a material breach of any representation, warranty, covenant or other obligation of such Transferor contained in this Agreement;
(c) such Transferor shall maintain and not amend any Permits material to the Contributed Assets;
(d) such Transferor shall use all commercially reasonable efforts to continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect with respect to the Contributed Assets, and shall give all notices and present all claims under all such policies of insurance in a due and timely fashion;
(e) prior to the Closing, such Transferor shall give all notices and shall use all reasonable efforts to obtain all Consents described in Transferor Disclosure Schedule 3.3 (except the “"Railroad License Agreements” " identified therein) from all Governmental Entities or third parties;
(f) such Transferor shall not, and shall cause its affiliates not to, make any amendment to, terminate or fail to use reasonable efforts to renew any Assumed Contract, or waive, amend or terminate any rights of substantial value relating to the Contributed Assets;
(g) such Transferor shall not, and shall cause its affiliates not to, fail to maintain each Contributed Asset in a condition at least commensurate with the current condition thereof;; ▇▇▇▇▇ ENERGY PARTNERS, L.P. CONTRIBUTION AGREEMENT
(h) such Transferor shall not incur any liabilities, or assume or otherwise become obligated in regard to the liabilities of any other person relating to the Contributed Assets, other than liabilities incurred in the ordinary course of business consistent with past practice, or fail to pay or discharge when due any liabilities except those contested in good faith;
(i) such Transferor shall not sell, lease, assign, transfer or otherwise dispose of any of the Contributed Assets, other than Supplies consumed in the ordinary course of business of the Operations and except for the disposition of obsolete or worn out Equipment or other assets;
(j) except for Contracts entered into in the ordinary course of business, such Transferor shall not enter into any new Contracts relating to the Contributed Assets;
(k) such Transferor shall not mortgage, pledge or subject any of the Contributed Assets to any Lien, except for Permitted Liens;
(l) such Transferor shall not fail to maintain its books, accounts and records in the usual, regular and ordinary manner on a basis consistent with prior years;
(m) such Transferor shall not fail to use all reasonable efforts to preserve intact the relationships with employees, customers, suppliers, licensors, licensees, distributors and other similar relationships established in connection with the conduct of the Operations;
(n) such Transferor shall not relocate any of the Contributed Assets to a different location, other than in the ordinary course of business of the Operations and consistent with past practice;
(o) such Transferor shall not permit any amendment or modification to the Alon Party Organizational Documents of Newco 1 or Newco 2; and
(p) such Transferor shall not commit or agree, whether in writing or otherwise, to take any action prohibited by this Section 5.1.
Appears in 1 contract