Operating Covenants of the Company. During the period from the date of this Agreement to the Closing, unless otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Letter or required by applicable Law or unless Buyer gives its prior written consent, Sellers shall cause the Company to, (1) conduct its businesses only in, and not take any action except in, the ordinary course of business, in a manner consistent with past practice and in compliance with applicable Laws (including by making payments due and owing under the Engineering, Procurement and Construction Contract, dated March 10, 2006, between Alstom Power Inc. and the Company for construction and installation of a baghouse), (2) preserve substantially intact its business organization, to preserve its assets and properties in good repair and condition and to preserve its present relationships with Governmental Authorities, customers, suppliers and other Persons with which it has business relations and use reasonable best efforts to keep available the services of the present officers and key Sellers Employees and (3) in the ordinary course of business make those capital expenditures contemplated in Section 5.1–A of the Disclosure Letter, to the extent commercially reasonable, and any amounts due and owing in respect thereof shall be paid as and when due and owing. In furtherance and not in limitation of the foregoing, during the period from the date of this Agreement to the Closing, Sellers agree that the Company shall not directly or indirectly do, or propose, authorize or commit to do, any of the following, and with respect to Section 5.1(g), Sellers shall not directly or indirectly do any of the following, in each case unless otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Letter or without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed: (a) amend or otherwise change the Company’s certificate of limited partnership or bylaws (or similar organizational documents); (b) except as required under a Contract in force as of the date of this Agreement, and the disposition of “Scheduled Assets” as set forth in Section 5.1 of the Disclosure Letter, issue, deliver, sell, lease, sell and leaseback, pledge, license, transfer, mortgage, encumber, dispose of or otherwise subject to any Lien (i) the Company Securities (including, for the avoidance of doubt, the Units) or (ii) any property or assets, whether tangible or intangible, of the Company, other than assets or services sold, leased, pledged, licensed, transferred, disposed of or encumbered in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution by the Company, payable in cash, stock or other equity interests, property or otherwise, other than distributions intended to cover Taxes related to the operations of the Company for any period prior to Closing and cash distributions by the Company not in excess of the net proceeds from the disposition of “Scheduled Assets”; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of the Company Securities; (e) incur any Indebtedness or issue any securities in respect of Indebtedness or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations or Indebtedness of any Person, in excess of $1,000,000 in the aggregate, other than revolving credit borrowings and reborrowings and letter of credit issuances in a manner consistent with past practice under the Credit Agreement; (f) (i) amend in any material respect, terminate, cancel or renew any Company Contract or agreement recorded against the Real Property, or enter into any Contract that would be a Company Contract if it had been in effect on the date of this Agreement, provided that, for the avoidance of doubt, to the extent any such Contract is entered into after the date of this Agreement in accordance with this Agreement, such Contract shall be deemed to be a Company Contract for purposes of this Agreement, (ii) acquire (including by merger, consolidation or acquisition of stock or assets) any assets (other than in the ordinary course of business), business or any corporation, partnership, limited liability company, association or business organization or division thereof (other than acquisitions prior to the Closing having an aggregate consideration of not more than $1,000,000) other than fuel, supplies, maintenance materials and other inventory items in the ordinary course of business consistent with past practice, or (iii) authorize or make any capital expenditures, except such expenditures made prior to the Closing Date (x) in an amount not in excess of $1,000,000 individually or $5,000,000 in the aggregate and emergency or (y) ordinary course capital expenditures in accordance with clause (3) of Section 5.1 of this Agreement; (g) except to the extent required under applicable Law or the terms of any Sellers Benefit Plan existing as of the date of this Agreement, materially increase or otherwise materially amend the compensation or fringe benefits of any Sellers Employee (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice); (h) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction when due or otherwise in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2005 or incurred in the ordinary course of business and consistent with past practice after December 31, 2005; (i) make any loans, advances or capital contributions (including any “keep well” or other Contract to maintain any financial statement condition of another Person) to, or investments in, any other Person; or (j) fail to maintain in full force and effect insurance policies covering the Company and its properties, assets and business in a form and amount consistent with the Company’s current insurance program, including the Company Insurance Policies (except in the ordinary course of business to the extent any such policies expire in accordance with their term and they are replaced with policies consistent with good practice for independent power companies, subject to insurance market conditions). For purposes of clarification, the Company shall be entitled to, and nothing in this Agreement shall restrict the Company’s right to, declare, make and pay prior to the Closing Date, Quarterly Tax Distributions and cash distributions of the proceeds from the disposition of “Scheduled Assets.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (International Power PLC)
Operating Covenants of the Company. During the period from the date of this Agreement to the Closing, unless otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Letter or required by applicable Law or unless Buyer gives its prior written consent, Sellers shall cause the Company to, (1) conduct its businesses only in, and not take any action except in, the ordinary course of business, in a manner consistent with past practice and in compliance with applicable Laws (including by making payments due and owing under the Engineering, Procurement and Construction Contract, dated March 10, 2006, between Alstom Power Inc. and the Company for construction and installation of a baghouse), (2) preserve substantially intact its business organization, to preserve its assets and properties in good repair and condition and to preserve its present relationships with Governmental Authorities, customers, suppliers and other Persons with which it has business relations and use reasonable best efforts to keep available the services of the present officers and key Sellers Employees and (3) in the ordinary course of business make those capital expenditures contemplated in Section 5.1–A of the Disclosure Letter, to the extent commercially reasonable, and any amounts due and owing in respect thereof shall be paid as and when due and owing. In furtherance and not in limitation of the foregoing, during the period from the date of this Agreement to the Closing, Sellers agree that the Company shall not directly or indirectly do, or propose, authorize or commit to do, any of the following, and with respect to Section 5.1(g), Sellers shall not directly or indirectly do any of the following, in each case unless otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Letter or without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
: (a) amend or otherwise change the Company’s certificate of limited partnership or bylaws (or similar organizational documents);
; (b) except as required under a Contract in force as of the date of this Agreement, and the disposition of “Scheduled Assets” as set forth in Section 5.1 of the Disclosure Letter, issue, deliver, sell, lease, sell and leaseback, pledge, license, transfer, mortgage, encumber, dispose of or otherwise subject to any Lien (i) the Company Securities (including, for the avoidance of doubt, the Units) or (ii) any property or assets, whether tangible or intangible, of the Company, other than assets or services sold, leased, pledged, licensed, transferred, disposed of or encumbered in the ordinary course of business and in a manner consistent with past practice;
; (c) declare, set aside, make or pay any dividend or other distribution by the Company, payable in cash, stock or other equity interests, property or otherwise, other than distributions intended to cover Taxes related to the operations of the Company for any period prior to Closing and cash distributions by the Company not in excess of the net proceeds from the disposition of “Scheduled Assets”;
; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of the Company Securities;
; (e) incur any Indebtedness or issue any securities in respect of Indebtedness or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations or Indebtedness of any Person, in excess of $1,000,000 in the aggregate, other than revolving credit borrowings and reborrowings and letter of credit issuances in a manner consistent with past practice under the Credit Agreement;
; (f) (i) amend in any material respect, terminate, cancel or renew any Company Contract or agreement recorded against the Real Property, or enter into any Contract that would be a Company Contract if it had been in effect on the date of this Agreement, provided that, for the avoidance of doubt, to the extent any such Contract is entered into after the date of this Agreement in accordance with this Agreement, such Contract shall be deemed to be a Company Contract for purposes of this Agreement, (ii) acquire (including by merger, consolidation or acquisition of stock or assets) any assets (other than in the ordinary course of business), business or any corporation, partnership, limited liability company, association or business organization or division thereof (other than acquisitions prior to the Closing having an aggregate consideration of not more than $1,000,000) other than fuel, supplies, maintenance materials and other inventory items in the ordinary course of business consistent with past practice, or (iii) authorize or make any capital expenditures, except such expenditures made prior to the Closing Date (x) in an amount not in excess of $1,000,000 individually or $5,000,000 in the aggregate and emergency or (y) ordinary course capital expenditures in accordance with clause (3) of Section 5.1 of this Agreement;
(g) except to the extent required under applicable Law or the terms of any Sellers Benefit Plan existing as of the date of this Agreement, materially increase or otherwise materially amend the compensation or fringe benefits of any Sellers Employee (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice);
(h) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction when due or otherwise in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2005 or incurred in the ordinary course of business and consistent with past practice after December 31, 2005;
(i) make any loans, advances or capital contributions (including any “keep well” or other Contract to maintain any financial statement condition of another Person) to, or investments in, any other Person; or
(j) fail to maintain in full force and effect insurance policies covering the Company and its properties, assets and business in a form and amount consistent with the Company’s current insurance program, including the Company Insurance Policies (except in the ordinary course of business to the extent any such policies expire in accordance with their term and they are replaced with policies consistent with good practice for independent power companies, subject to insurance market conditions). For purposes of clarification, the Company shall be entitled to, and nothing in this Agreement shall restrict the Company’s right to, declare, make and pay prior to the Closing Date, Quarterly Tax Distributions and cash distributions of the proceeds from the disposition of “Scheduled Assets.”24
Appears in 1 contract
Sources: Purchase and Sale Agreement