Operations Prior to the Closing Date. Except (v) as expressly contemplated by this Agreement, (w) as disclosed in Disclosure Schedule 7.2, (x) with the prior written consent of Buyer (which consent will not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court, (y) as otherwise required by Legal Requirements, or (z) as ordered by the Bankruptcy Court or limited by restrictions or limitations under the Bankruptcy Code on Chapter 11 debtors: (a) from the Execution Date until the Closing Date, Sellers shall: (i) maintain the Assets operated by Sellers in their current condition, ordinary wear and tear excepted, and in accordance with applicable Legal Requirements, Contracts and Leases; (ii) pay or cause to be paid all bonuses, rentals, Royalties, and other Property Costs and development and operating expenses, and other payments incurred with respect to the Assets operated by Sellers except (A) Royalties held in suspense as a result of title issues and that do not give any Third Party a right to cancel an interest in any Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii), unless the nonpayment of such contested expenses or royalties could result in the termination of an Assigned Lease and Interest; (iii) maintain books, accounts and records relating to the Assets in accordance with past custom and practice; (iv) provide, on a weekly basis, estimates of the Receivables balances and Cash and Cash Equivalents balances of the Sellers; (v) promptly notify Buyer of any proposals for operations relating to the Assets by any Third Party and Sellers’ subsequent election to be a consenting or a non-consenting party under the applicable Operating Agreement; (vi) maintain Suspense Funds in the ordinary course of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assets; (vii) use commercially reasonable efforts to maintain in full force and effect all Leases that are presently producing in paying quantities or otherwise held by shut-in payments or other payments in lieu of production or drilling operations; (viii) maintain insurance coverage on the Assets in the amounts and coverages and of the types presently in force; and (ix) maintain all material governmental permits and approvals affecting the Assets. (b) From the Execution Date until the Closing Date, Sellers shall not: (i) abandon or permit any Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirement); (ii) terminate, cancel, materially amend or modify, or extend any Assigned Contract that has been identified as such as of the Execution Date or Assigned Lease and Interest or enter into any additional Contract related to or binding on any Asset; (iii) sell, lease, Encumber, transfer, assign or otherwise dispose of all or any portion of any Assets, except sales of Hydrocarbons in the ordinary course of business; (iv) establish, adopt, enter into, or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan; (v) increase the compensation payable or potentially payable to any Applicable Employee or Applicable Contractor other than in the ordinary course of business or as required by any Seller Benefit Plan; (vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced); (vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00); (viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of the Specified Litigation; or (ix) commit or enter into an agreement with respect to any matter that is prohibited by the foregoing. (c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/First
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. Except (va) as expressly contemplated by this AgreementBetween the date hereof and the Closing Date, but except (w) as disclosed in Disclosure Schedule 7.2, (xi) with the prior written consent approval of Buyer (which consent will Buyer agrees shall not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court), (y) as otherwise required by Legal Requirements, or (z) as ordered by the Bankruptcy Court or limited by restrictions or limitations under the Bankruptcy Code on Chapter 11 debtors:
(a) from the Execution Date until the Closing Date, Sellers shall:
(i) maintain the Assets operated by Sellers in their current condition, ordinary wear and tear excepted, and in accordance with applicable Legal Requirements, Contracts and Leases;
(ii) pay as required by applicable Law or cause to be paid all bonusesContract or (iii) as expressly contemplated herein or set forth in Schedule 6.3(a), rentals, Royaltiesthe Company shall, and other Property Costs and development and operating expensesshall cause T.A Vietnam to, and other payments incurred with respect to the Assets operated by Sellers except (A) Royalties held operate and carry on its business only in suspense as the ordinary course of business in all material respects and use reasonable best efforts to conduct their business in compliance in all material respects with applicable Law, (B) use reasonable best efforts to preserve its business relationships (including relationships with employees, customers and suppliers), property and assets in a result manner consistent with then-present needs and past practices, (C) maintain its books and records in the ordinary course of title issues and that do not give any Third Party a right to cancel an interest in any Assets operated by any Sellerbusiness, and (BD) expenses use reasonable best efforts to collect accounts receivable and pay, discharge and satisfy all accounts payable and timely file all Tax Returns (subject to Buyer’s right to review such Tax Returns pursuant to clause (iii)(E) of this Section 6.3 or Royalties Section 8.5, as the case may be) and timely pay all Taxes, in excess of twenty-five thousand dollars $25,000 that are being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii)each case, unless the nonpayment of such contested expenses or royalties could result in the termination of an Assigned Lease and Interest;
(iii) maintain books, accounts and records relating to the Assets in accordance with past custom and practice;
(iv) provide, on a weekly basis, estimates of the Receivables balances and Cash and Cash Equivalents balances of the Sellers;
(v) promptly notify Buyer of any proposals for operations relating to the Assets by any Third Party and Sellers’ subsequent election to be a consenting or a non-consenting party under the applicable Operating Agreement;
(vi) maintain Suspense Funds in the ordinary course of business and not exercise as such accounts payable and Taxes become due and payable, or in accordance with their terms unless subject to good faith disputes over whether payment or performance is due and owing, (E) prior to filing any rights of set off against the Suspense Funds or otherwise against the Assets;
(vii) use commercially reasonable efforts to maintain in full force and effect all Leases that are presently producing in paying quantities or otherwise held by shut-in payments income or other payments in lieu of production material Tax Return (including an amended income or drilling operations;
(viiiother material Tax Return) maintain insurance coverage on the Assets in the amounts and coverages and of the types presently in force; and
Group Companies (ixother than any Amended Tax Returns required to be filed by Seller prior to the Closing pursuant to Section 8.5, which shall be governed by Section 8.5): (1) maintain provide a copy of such income or other material Tax Return to Buyer at least 10 days prior to the due date for filing such income or other material Tax Return and (2) incorporate any reasonable comments provided by Buyer with respect to any such income or other material Tax Return and (F) file all material governmental permits and approvals affecting income Tax Returns of the AssetsGroup Companies for taxable periods ending on or before December 31, 2019.
(b) From Without limiting the Execution Date until provisions of Section 6.3(a), but except (i) with the prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed), (ii) as required by applicable Law or Contract or (iii) as expressly contemplated herein or as set forth in Schedule 6.3(b), between the date hereof and the Closing Date, Sellers the Company shall not:
(i, and shall cause T.A Vietnam not to, take any action that would be required to be disclosed on Section 4.10(b) abandon or permit any Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirement);
(ii) terminate, cancel, materially amend or modify, or extend any Assigned Contract that has been identified as such as of the Execution Date or Assigned Lease and Interest or enter into any additional Contract related to or binding on any Asset;
Disclosure Schedule (iii) sell, lease, Encumber, transfer, assign or otherwise dispose of all or any portion of any Assets, except sales of Hydrocarbons in the ordinary course of business;
(iv) establish, adopt, enter into, or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan;
(v) increase the compensation payable or potentially payable to any Applicable Employee or Applicable Contractor other than in the ordinary course of business Section 4.10(b)(vi) (suffered any damage, destruction or as required by any Seller Benefit Plan;
(vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment casualty loss that is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation valued under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest GAAP in excess of Fifty Thousand Dollars ($50,000.00the Listing Threshold, net of insurance proceeds recovered or recoverable therefor);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of if such action were taken prior to the Specified Litigation; or
(ix) commit or enter into an agreement with respect to any matter that is prohibited by the foregoingdate hereof.
(c) From Notwithstanding anything to the Execution Date until contrary herein, prior to the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff AmountClosing, the Second Lienholders Payoff Amount (unless Group Companies may declare and pay as a Second Lienholders Default has occurred prior valid special dividend in cash all or any part of their cash to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/FirstSellers.
Appears in 1 contract
Operations Prior to the Closing Date. Except (va) as otherwise expressly contemplated by this Agreement, (wb) as disclosed in Disclosure Schedule 7.27.02 or as disclosed or contemplated by Disclosure Schedule Section 1.01, (xc) with the prior written consent of Buyer (which consent will not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court), (yd) as otherwise required by Legal RequirementsApplicable Laws or by any Governmental Authority, or (ze) as ordered by required or prohibited pursuant to a Bankruptcy Court Order or the Bankruptcy Court Cases or limited by restrictions or limitations under the Bankruptcy Code on Chapter 11 debtors:
(a) , including limitations on Seller’s or its Subsidiaries’ ability to pay amounts relating to the period prior to the Petition Date and the impact of Seller filing for bankruptcy with respect to any Contract to which it or any of its Subsidiaries is a party, from the Execution Date date hereof until the Closing Date, Sellers shall:
: (i) maintain the Selling Entities shall (A) use their reasonable best efforts to (I) operate the Assets operated by Sellers in their current condition, ordinary wear Seller and tear excepted, and its Subsidiaries in accordance with applicable Legal Requirements, Contracts Seller’s operating and Leases;
(ii) pay or cause restructuring plan conveyed to be paid all bonuses, rentals, Royalties, and other Property Costs and development and operating expenses, and other payments incurred with respect Buyer prior to the Assets operated by Sellers except (A) Royalties held in suspense as a result of title issues date hereof and that do not give any Third Party a right to cancel an interest in any Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii), unless the nonpayment of such contested expenses or royalties could result otherwise in the termination ordinary course of an Assigned Lease and Interest;
business in all material respects, (iiiII) maintain books, accounts and records relating to the such Assets in accordance with past custom and practice;
practice in all material respects, and (ivIII) providemaintain and preserve the Assets in good condition, on a weekly basissubject to ordinary wear and tear, estimates of and (B) maintain with respect to the Receivables balances Assumed Accounts Payable (in the aggregate) Accounts Payable Days Payable Outstanding less than or equal to 28 days; and Cash (ii) Seller will not, and Cash Equivalents balances of the Sellers;
(v) promptly notify Buyer of any proposals for operations relating will cause its Subsidiaries not to, solely with respect to the Assets by any Third Party or the Assumed Liabilities (except in accordance with Seller’s operating and Sellers’ subsequent election restructuring plan conveyed to be a consenting or a non-consenting party under Buyer prior to the applicable Operating Agreement;
date hereof (viwhich plan is consistent with Exhibit G) maintain Suspense Funds in the ordinary course of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assets;
contemplated by Exhibit G): (viiA) use commercially reasonable efforts to maintain in full force and effect all Leases that are presently producing in paying quantities liquidate, dissolve, recapitalize, or otherwise held by shut-in payments or other payments in lieu of production or drilling operations;
(viii) maintain insurance coverage on the Assets in the amounts and coverages and wind up its operation of the types presently in forceBusiness; and
(ix) maintain all material governmental permits and approvals affecting the Assets.
(b) From the Execution Date until the Closing Date, Sellers shall not:
(i) abandon or permit any Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirement);
(iiB) terminate, cancel, materially amend or modifymodify (other than by extension or waiver), grant a material waiver or consent with respect to or extend any Assigned Contract that has been identified as such as of the Execution Date or Assigned Lease and Interest Material Contract, or enter into any additional Contract related that would be a Material Contract, except with respect to any Contract that is or binding on any Asset;
would be a Material Contract under Section 5.10(a)(ii) or Section 5.10(a)(ix); (iiiC) sell, lease, Encumber, transfer, assign abandon, permit to lapse or expire, fail to maintain, license, assign, convey, surrender, covenant not to sue or assert with respect to, or otherwise dispose of all or any portion of any material Assets, except in each case other than (i) sales of Hydrocarbons Inventory in the ordinary course of business;
, (ivii) establish, adopt, enter into, or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan;
(v) increase the compensation payable or potentially payable to any Applicable Employee or Applicable Contractor other than in the ordinary course licenses of business or as required by any Seller Benefit Plan;
(vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of the Specified Litigation; or
(ix) commit or enter into an agreement with respect to any matter that is prohibited by the foregoing.
(c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/FirstIntellectual
Appears in 1 contract
Operations Prior to the Closing Date. Except Seller covenants and agrees that, except (v) as expressly contemplated by this Agreement, (w) as disclosed in the Disclosure Schedule 7.2Schedule, (x) with the prior written consent of Buyer (which consent will shall not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court, (y) as otherwise required by Legal Requirements, or (z) as ordered by from the Bankruptcy Court or limited by restrictions or limitations under date of execution hereof and prior to the Bankruptcy Code on Chapter 11 debtorsClosing Date:
(a) from the Execution Date until the Closing Date, Sellers Seller shall:
(i) use commercially reasonable efforts, taking into account Seller's status as debtor in possession, to maintain and operate the Oil and Gas Assets that are operated by Sellers Seller as a reasonably prudent operator or cause such Oil and Gas Assets to be operated as a reasonably prudent operator in their current condition, the ordinary wear and tear excepted, and in accordance with applicable Legal Requirements, Contracts and Leasescourse of business;
(ii) pay or cause to be paid all bonusescosts and expenses relating to the Oil and Gas Assets which become due, including all bonuses and rentals, Royaltiesroyalties, overriding royalties, shut-in royalties, and other Property Costs minimum royalties and development and operating expenses, and other payments incurred with respect to the Oil and Gas Assets operated by Sellers Seller except (A) Royalties royalties held in suspense as a result of title issues and that do not give any Third Party a right to cancel an interest in any Oil and Gas Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are royalties being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii)faith, unless the nonpayment of such contested expenses or royalties could result in the termination of an Assigned Lease a Lease, in which case Seller will notify Buyer and Interestobtain Buyer's approval prior to withholding such payment;
(iii) maintain its books, accounts and records relating to the Assets in accordance with past custom and practice;
(iv) provide, on a weekly basis, estimates maintain the personal property comprising part of the Receivables balances Oil and Cash Gas Assets operated by Seller in at least as good a condition as it is on the date hereof, subject to ordinary wear and Cash Equivalents balances of the Sellerstear;
(v) promptly notify Buyer perform and comply in all material respects with all of any proposals for operations relating to the Assets by any Third Party and Sellers’ subsequent election to be a consenting or a non-consenting party its obligations under the applicable Operating AgreementTitle Documents;
(vi) use commercially reasonable efforts, taking into account Seller's status under the CCAA, to (A) retain Affected Employees who are necessary to conduct the business as it is currently being conducted and (B) maintain Suspense Funds in its relationships with and preserve the ordinary course goodwill of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assetsits key service providers;
(vii) use commercially reasonable efforts maintain adequate levels of insurance with respect to maintain in full force the Oil and effect all Leases that are presently producing in paying quantities or otherwise held by shut-in payments or other payments in lieu of production or drilling operations;Gas Assets and the Seller’s operation thereof; and
(viii) maintain insurance coverage on promptly provide Buyer with notice of any authorization for expenditure approved by Seller in respect of any operations with respect to the Oil and Gas Assets having an anticipated cost to Seller in the amounts and coverages and excess of the types presently in force; and
twenty-five thousand Canadian dollars (ix) maintain all material governmental permits and approvals affecting the AssetsCAD$25,000).
(b) From the Execution Date until the Closing Date, Sellers Seller shall not:
(i) surrender or abandon or permit any Oil and Gas Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirementterms);
(ii) terminatecommence, cancel, materially amend or modifypropose, or extend agree to participate in any Assigned Contract that has been identified as such as single operation with respect to the ▇▇▇▇▇ or Leases with an anticipated cost in excess of fifty thousand Canadian dollars (CAD$50,000), except for emergency operations, operations scheduled under the Execution Date AFEs, or Assigned Lease and Interest or enter into operations required by any additional Contract related to or binding on any AssetGovernmental Authority;
(iii) sellterminate, leasecancel, Encumberor materially amend or modify any material Contract or other material document to which the Oil and Gas Assets are subject (including any of the Assigned Contracts or Leases), transfer, assign or otherwise dispose of all enter into any new material agreement or any portion of any material commitment relating to the Oil and Gas Assets, except sales of Hydrocarbons in the ordinary course of business;
(iv) establishsell, adoptlease, enter intoencumber, or amend otherwise dispose of all or any collective bargaining agreement or Employee Benefit Plan covering portion of any Applicable Employee or Applicable ContractorOil and Gas Assets, including any Seller Benefit Planexcept sales of Petroleum Substances in the ordinary course of business;
(v) increase the compensation payable or potentially payable grant to any Applicable Affected Employee or Applicable Contractor other than any increase in compensation except in the ordinary course of Seller's business or as required by any Seller Benefit Plan;and consistent with past practice; or
(vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of the Specified Litigation; or
(ix) commit or enter into an any agreement with respect or commitment to take any matter that is action prohibited by the foregoingthis Section 7.2(b).
(c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/First
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. Except (v) as expressly contemplated by this Agreement, (w) as disclosed in Disclosure Schedule 7.2, (x) with the prior written consent of Buyer (which consent will not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court, (y) as otherwise required by Legal Requirements, or (z) as ordered by the Bankruptcy Court or limited by restrictions or limitations under the Bankruptcy Code on Chapter 11 debtors:
(a) from the Execution Date until the Closing Date, Sellers shall:
(i) maintain the Assets operated by Sellers in their current condition, ordinary wear and tear excepted, and in accordance with applicable Legal Requirements, Contracts and Leases;
(ii) pay or cause to be paid all bonuses, rentals, Royalties, and other Property Costs and development and operating expenses, and other payments incurred with respect to the Assets operated by Sellers except (A) Royalties held in suspense as a result of title issues and that do not give any Third Party a right to cancel an interest in any Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii), unless the nonpayment of such contested expenses or royalties could result in the termination of an Assigned Lease and Interest;
(iii) maintain books, accounts and records relating to the Assets in accordance with past custom and practice;
(iv) provide, on a weekly basis, estimates of the Receivables balances and Cash and Cash Equivalents balances of the Sellers;
(v) promptly notify Buyer of any proposals for operations relating to the Assets by any Third Party and Sellers’ subsequent election to be a consenting or a non-consenting party under the applicable Operating Agreement;
(vi) maintain Suspense Funds in the ordinary course of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assets;
(vii) use commercially reasonable efforts to maintain in full force and effect all Leases that are presently producing in paying quantities or otherwise held by shut-in payments or other payments in lieu of production or drilling operations;
(viii) maintain insurance coverage on the Assets in the amounts and coverages and of the types presently in force; and
(ix) maintain all material governmental permits and approvals affecting the Assets.
(b) From the Execution Date until the Closing Date, Sellers shall not:
(i) abandon or permit any Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirement);
(ii) terminate, cancel, materially amend or modify, or extend any Assigned Contract that has been identified as such as of the Execution Date or Assigned Lease and Interest or enter into any additional Contract related to or binding on any Asset;
(iii) sell, lease, Encumber, transfer, assign or otherwise dispose of all or any portion of any Assets, except sales of Hydrocarbons in the ordinary course of business;
(iv) establish, adopt, enter into, or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan;
(v) increase the compensation payable or potentially payable to any Applicable Employee or Applicable Contractor other than in the ordinary course of business or as required by any Seller Benefit Plan;
(vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of the Specified Litigation; or
(ix) commit or enter into an agreement with respect to any matter that is prohibited by the foregoing.
(c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/FirstFirst Lien Payoff Amounts or Second Lienholders Payoff Amount from any funds or amounts of Sellers other than the proceeds of the Adjusted Purchase Price, as estimated.
Appears in 1 contract
Operations Prior to the Closing Date. Except Sellers covenant and agree that, except (v) as expressly contemplated by this Agreement, (w) as disclosed in Disclosure Schedule 7.2, (x) with the prior written consent of Buyer (which consent will shall not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court), (y) as otherwise required by Legal Requirements, Requirements or (z) as ordered to the extent not inconsistent with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, any orders entered by the Bankruptcy Court in the Bankruptcy Case, or limited by restrictions or limitations as permitted under the Bankruptcy Code on Chapter 11 debtorsCash Collateral Orders, after the Execution Date and prior to the Closing Date:
(a) from the Execution Date until the Closing Date, Sellers shall:
(i) maintain carry on the Business in the Ordinary Course of Business and use commercially reasonable efforts to maintain, preserve and protect the Acquired Assets operated by Sellers in their current conditionthe condition in which they exist on the date hereof, except for ordinary wear and tear exceptedand except for replacements, and modifications or maintenance in accordance with applicable Legal Requirements, Contracts and Leasesthe Ordinary Course of Business;
(ii) pay or cause to be paid all bonuses, rentals, Royalties, and other Property Costs and development and operating expenses, and other payments incurred with respect to the Assets operated by Sellers except (A) Royalties held in suspense as a result of title issues and that do not give any Third Party a right to cancel an interest in any Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii), unless the nonpayment of such contested expenses or royalties could result in the termination of an Assigned Lease and Interest;
(iii) maintain their books, accounts and records relating to in the Assets in accordance with past custom and practiceOrdinary Course of Business;
(iv) provide, on a weekly basis, estimates of the Receivables balances and Cash and Cash Equivalents balances of the Sellers;
(v) promptly notify Buyer of any proposals for operations relating to the Assets by any Third Party and Sellers’ subsequent election to be a consenting or a non-consenting party under the applicable Operating Agreement;
(vi) maintain Suspense Funds in the ordinary course of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assets;
(viiiii) use commercially reasonable efforts to pay all post-petition Trade Payables and collect all Accounts Receivable after the Petition Date (subject to the Budget Covenant (as defined in the Cash Collateral Orders));
(iv) use commercially reasonable efforts to (A) retain the services of its current executive officers (or their successors) who are in good standing and who are necessary to conduct the Business as it is currently being conducted in all material respects and (B) maintain their relationships with and preserve for the Business the goodwill of their key suppliers and customers in all material respects (it being understood that no increases to any payments or compensation, including any incentive, retention or similar compensation, shall be required in respect of either clause (A) or (B) hereof or other expenditures of funds (other than pursuant to the existing terms of any Contracts) or modification of Contract terms);
(v) (A) comply in all material respects with all Legal Requirements applicable to them or having jurisdiction over the Business or any Acquired Asset, (B) comply in all material respects with contractual obligations applicable to or binding upon them pursuant to any Material Contracts (other than those obligations the compliance with which is excused during the Bankruptcy Case), and (C) maintain in full force and effect all Leases that material Permits and comply with the terms of each such Permit (but only to the extent such Permits are presently producing necessary for the Business and the Acquired Assets in paying quantities the Ordinary Course of Business);
(vi) cause any of their current property insurance policies with respect to the Business or otherwise held by shut-any of the other Acquired Assets not to be canceled or terminated or any of the coverage thereunder to lapse unless, simultaneously with such termination, cancellation or lapse, replacement, policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies are in payments or other payments full force and effect, to the extent such coverage is reasonably available;
(vii) maintain each Buyer Benefit Plan in lieu of production or drilling operationsaccordance with their terms and Legal Requirements;
(viii) maintain insurance coverage on maintain, preserve and protect in full force and effect the Assets existence of all material Intellectual Property owned by Sellers and included in the amounts and coverages and Acquired Assets, except for abandonment of Intellectual Property that is de minimis to the types presently Business in forceSellers’ reasonable business judgment; and
(ix) maintain all material governmental permits and approvals affecting use commercially reasonable efforts not to take or agree to or commit to assist any other Person in taking any action (i) that would reasonably be expected to result in a failure of any of the Assetsconditions to the Closing or (ii) that would reasonably be expected to impair the ability of Sellers or Buyer to consummate the Closing in accordance with the terms hereof or to materially delay such consummation.
(b) From the Execution Date until the Closing Date, Sellers shall not:
(i) abandon or permit take any Asset to lapse (action enumerated in Section 5.20(b), except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirementset forth on Schedule 5.20(b);
(ii) terminateassume, cancelreject or assign any Material Contract, materially amend or modify, or extend any Assigned Contract that has been identified as such as of the Execution Date or Assigned Lease and Interest or enter into any additional Contract related other than pursuant to or binding on any AssetSection 2.5;
(iii) sell, lease, Encumber, transfer, assign enter into or otherwise dispose renew any Material Contract (other than automatic renewals of all or any portion of any Assets, except sales of Hydrocarbons Material Contracts in the ordinary course Ordinary Course of business;Business in accordance with the terms thereof as in effect on the Execution Date) without the consent of Buyer; or
(iv) establishother than the Approved Retention Payments, adopt, enter into, (A) hire any Employees having annual base or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan;
guaranteed compensation in excess of $200,000; (vB) increase the annual rate of base salary or any target bonus opportunity of any Employee whose annual rate of base salary prior to such increase was in excess of $200,000; (C) pay or award any bonus, benefit, or other direct or indirect incentive compensation payable or potentially payable (other than any such payments authorized pursuant to any Applicable Employee first or Applicable Contractor other than second day orders in the ordinary course Bankruptcy Case); (D) award any equity compensation awards (whether phantom or equity) with respect to the equity of business the Company or its Affiliates; (E) modify, amend or terminate any Benefit Plan; (F) enter into any employment, compensation, severance, non-competition, or similar contract (or amended any such contract) to which any Seller is a party; or (G) adopt any new severance pay, termination pay, deferred compensation, bonus, or other employee benefit plan with respect to Employees that would be a Benefit Plan if it existed on the Execution Date (including any employment agreement, severance agreement, change in control agreement, or transaction or retention bonus agreements), except, in the case of each of clauses (A) through (G), (i) to the extent permitted by any order of the Bankruptcy Court or as required by applicable Legal Requirements (including to avoid the imposition of Taxes or to conform to the requirements of Tax qualification); (ii) pursuant to the terms of any Seller Benefit Plan;
, as in effect on the date hereof; or (viiii) hire any individual who would become an Applicable Employee unless required for immaterial changes to replace any Applicable Employee whose employment is terminated as permitted hereunder Benefit Plans available to all employees generally (and only subject to employment terms comparable to those of other than changes that materially increase the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect toamount, or otherwise compromise any accelerate the timing, of the Specified Litigation; or
(ix) commit or enter into an agreement with respect to any matter that is prohibited by the foregoing.
(c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closingbenefits), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/First.
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Operations Prior to the Closing Date. Except Sellers covenant and agree that, except (v) as expressly contemplated by this Agreement, (w) as disclosed in Disclosure Schedule 7.2, (x) with the prior written consent of Buyer (which consent will shall not be unreasonably withheld, conditioned withheld or delayed) or the approval of the Bankruptcy Court, and (y) as otherwise required by Legal Requirements, or (z) as ordered by after the Bankruptcy Court or limited by restrictions or limitations under Effective Date and prior to the Bankruptcy Code on Chapter 11 debtorsClosing Date:
(a) from the Execution Date until the Closing Date, Sellers shall:
(i) maintain carry on the Assets operated by Sellers Business in their current conditionthe ordinary course, ordinary wear and tear excepted, and taking into account Sellers¶ status as debtors in accordance with applicable Legal Requirements, Contracts and Leasespossession;
(ii) pay or cause to be paid all bonuses, rentals, Royalties, and other Property Costs and development and operating expenses, and other payments incurred with respect to the Assets operated by Sellers except (A) Royalties held in suspense as a result of title issues and that do not give any Third Party a right to cancel an interest in any Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii), unless the nonpayment of such contested expenses or royalties could result in the termination of an Assigned Lease and Interest;
(iii) maintain their books, accounts and records relating to the Assets in accordance with past custom and practice;
(iii) use reasonable best efforts, taking into account Sellers¶ status as debtors in possession, to (A) retain Company employees who are in good standing and are either necessary to conduct the Business as it is currently being conducted or are otherwise designated in the Transition Services Agreement as persons needed to provide services thereunder, (B) retain Facility Employees who are in good standing, and (C) maintain their relationships with and preserve for the Business the goodwill of their key suppliers and customers;
(iv) provideuse reasonable best efforts, on a weekly basistaking into account Sellers¶ status as debtors in possession, estimates to (A) comply in all material respects with all Legal Requirements with respect to the conduct of the Receivables balances Business, (B) comply in all material respects with contractual obligations applicable to or binding upon them pursuant to Assigned Contracts, Assigned Leases and Cash Scheduled Contracts and Cash Equivalents balances of the SellersLeases and (C) maintain in full force and effect all Permits;
(v) promptly notify Buyer use reasonable best efforts, taking into account Sellers¶ status as debtors in possession, to cause any of any proposals for operations relating their current property insurance policies with respect to the Facilities or any of the other Acquired Assets by any Third Party and Sellers’ subsequent election not to be a consenting canceled or a non-consenting party terminated or any of the coverage thereunder to lapse unless, simultaneously with such termination, cancellation or lapse, replacement, policies providing coverage equal to or greater than the coverage under the applicable Operating Agreement;canceled, terminated or lapsed policies are in full force and effect; and
(vi) maintain Suspense Funds use reasonable best efforts, taking into account Sellers¶ status as debtors in the ordinary course of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assets;
(vii) use commercially reasonable efforts possession, to maintain in full force and effect the existence of all Leases that are presently producing in paying quantities or otherwise held material Intellectual Property owned by shut-in payments or other payments in lieu of production or drilling operations;
(viii) maintain insurance coverage on the Assets Sellers and included in the amounts and coverages and Acquired Assets or necessary for Sellers¶ performance of their respective obligations pursuant to the types presently in force; and
(ix) maintain all material governmental permits and approvals affecting the AssetsTransition Services Agreement.
(b) From the Execution Date until the Closing Date, Sellers shall not:
(i) abandon or permit any Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirement);
(ii) terminate, cancel, materially amend or modify, or extend any Assigned Contract that has been identified as such as of the Execution Date or Assigned Lease and Interest or enter into any additional Contract related to or binding on any Asset;
(iii) sell, lease, Encumber, transfer, assign or otherwise dispose of all or any portion of any Assets, except sales of Hydrocarbons in the ordinary course of business;
(iv) establish, adopt, enter into, or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan;
(v) increase the compensation payable or potentially payable to any Applicable Employee or Applicable Contractor other than the sale of Inventory in the ordinary course of business and other than the incurrence of Encumbrances pursuant to any debtor-in-possession financing of Sellers (none of which Encumbrances shall burden or otherwise affect any of the Acquired Assets as required by of the Closing after giving effect to the Sale Order), sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or voluntarily impose or suffer to be imposed, any Seller Benefit PlanEncumbrance (other than Assumed Liabilities and Permitted Encumbrances) on any of the Acquired Assets;
(ii) fail to maintain the Acquired Assets in their present condition, reasonable wear and tear excepted;
(iii) amend any of the Scheduled Contracts and Leases or any Contract or Lease included in the Acquired Assets other than non-material amendments made in the ordinary course;
(iv) cease to operate or maintain any of the Facilities in a manner consistent with past practice (after the Petition Date);
(v) grant to any Facility Employee any increase in compensation except in the ordinary course of Sellers¶ business and consistent with past practice; or
(vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of the Specified Litigation; or
(ix) commit or enter into an any agreement with respect or commitment to take any matter that is action prohibited by the foregoingthis Section 7.2.
(c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/First
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. Except Sellers covenant and agree that, except (v) as expressly contemplated by this AgreementAgreement or as limited by Seller’s debtor-in-possession financing, (w) as disclosed in Disclosure Schedule 7.26.2, (x) with the prior written consent of Buyer (which consent will shall not be unreasonably withheld, conditioned or delayed) or the approval of the Bankruptcy Court), (y) as otherwise required by Legal Requirements, or Requirements and (z) as ordered by the Bankruptcy Court or limited by restrictions or limitations under the Bankruptcy Code on Chapter chapter 11 debtors, after the Execution Date and prior to the Closing Date:
(a) from the Execution Date until the Closing Date, Sellers shall:
(i) use commercially reasonable efforts, taking into account Sellers’ status as debtors in possession, to maintain and operate the Assets operated by Sellers any Seller as a reasonably prudent operator or cause such Assets to be operated as a reasonably prudent operator in their current condition, the ordinary wear and tear excepted, and in accordance with applicable Legal Requirements, Contracts and Leasescourse of business;
(ii) pay or cause to be paid all bonuses, bonuses and rentals, Royaltiesroyalties, overriding royalties, shut-in royalties, and other Property Costs minimum royalties and development and operating expenses, and other payments incurred with respect to the Assets operated by Sellers any Seller except (A) Royalties royalties held in suspense as a result of title issues and that do not give any Third Party third party a right to cancel an interest in any Assets operated by any Seller, and (B) expenses or Royalties in excess of twenty-five thousand dollars $25,000 that are royalties being contested by Sellers in good faith and set forth on Disclosure Schedule 7.2(a)(ii)faith, unless the nonpayment of such contested expenses or royalties could would reasonably be expected to result in the termination of an Assigned Lease and Interest, in which case Sellers will notify Buyer and obtain Buyer’s approval prior to withholding such payment;
(iii) maintain their books, accounts and records relating to the Assets in accordance with past custom and practice;
(iv) provide, on a weekly basis, estimates maintain the personal property constituting part of the Receivables balances Assets operated by any Seller in at least as good a condition as it is on the date hereof, subject to ordinary wear and Cash and Cash Equivalents balances of the Sellers;tear; and
(v) promptly notify Buyer of any proposals for operations relating to the Assets by any Third Party and Sellers’ subsequent election to be a consenting or a non-consenting party under the applicable Operating Agreement;
(vi) maintain Suspense Funds in the ordinary course of business and not exercise any rights of set off against the Suspense Funds or otherwise against the Assets;
(vii) use commercially reasonable efforts efforts, taking into account Sellers’ status as debtors in possession, to maintain retain Sellers’ employees who are in full force good standing and effect all Leases that are presently producing in paying quantities or otherwise held by shut-in payments or other payments in lieu of production or drilling operations;
(viii) maintain insurance coverage on necessary to conduct the Assets in the amounts and coverages and of the types presently in forcebusiness as it is currently being conducted; and
(ix) maintain all material governmental permits and approvals affecting the Assets.
(b) From the Execution Date until the Closing Date, Sellers shall not:
(i) abandon or permit any Asset to lapse (except any abandonment of Leases to the extent any such Leases terminate pursuant to their terms absent the conduct of any operations or as required by any Governmental Authority pursuant to applicable Legal Requirementand other than Assets for which Sellers have a current plugging and abandonment obligation);
(ii) terminatecommence, cancel, materially amend or modifypropose, or extend agree to participate in any Assigned Contract that has been identified as such as of single operation with respect to the Execution Date W▇▇▇▇ or Assigned Lease Leases and Interest Interests with an anticipated cost in excess of One Hundred Thousand Dollars ($100,000) net to the interest of any Seller, except for emergency operations taken in the face of risk to life, injury, property or enter into the environment, operations scheduled under the AFEs, or operations required by any additional Contract related to or binding on any AssetGovernmental Authority;
(iii) terminate, cancel, or materially amend or modify any Contract or Lease and Interest, other than to amend or modify any Contract or Lease and Interest the terms of which have expired or is expiring within three (3) months following such amendment or modification in order to preserve the value of such Asset and on materially consistent terms;
(iv) sell, lease, Encumberencumber, transfer, assign or otherwise dispose of all or any material portion of any Assets, except sales of Hydrocarbons in the ordinary course of business;
(iv) establish, adopt, enter into, or amend any collective bargaining agreement or Employee Benefit Plan covering any Applicable Employee or Applicable Contractor, including any Seller Benefit Plan;
(v) increase the compensation payable or potentially payable grant to any Applicable Transferred Employee or Applicable Contractor other than any increase in compensation except in the ordinary course of Sellers’ business or as required by any Seller Benefit Plan;and consistent with past practice; or
(vi) hire any individual who would become an Applicable Employee unless required to replace any Applicable Employee whose employment is terminated as permitted hereunder (and only subject to employment terms comparable to those of the Applicable Employee being replaced);
(vii) not approve any individual authorization for expenditure or similar request or invoice for funding or participation under any Contract which is reasonably estimated to require expenditures net to Sellers’ collective Working Interest in excess of Fifty Thousand Dollars ($50,000.00);
(viii) settle, waive or modify any claims, causes of action, rights or defenses with respect to, or otherwise compromise any of the Specified Litigation; or
(ix) commit or enter into an any agreement with respect or commitment to take any matter that is action prohibited by the foregoingthis Section 6.2(b).
(c) From the Execution Date until the Cut-Off Date, Sellers shall not (A) make any payments or distributions to any Persons other than the payment of the DIP/First Lien Payoff Amount, the Second Lienholders Payoff Amount (unless a Second Lienholders Default has occurred prior to Closing), Professional Payment Amounts or Wind Down Expenses to any applicable Persons entitled thereto, or (B) make any payments or distributions of any DIP/First
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