Major Decisions. The Company and its subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries not to, take any action under this Section 6.03 (collectively, the “Major Decisions”) without: (a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion): (i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary of the Company in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary of the Company; (ii) alter or change the rights, preference, or privileges of the Class A Units or Class B Units in a manner that adversely affects the Class B Members’ rights in the Class B Units; (iii) increase or decrease the authorized number of Class A Units or Class B Units; (iv) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units; (v) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtedness; (vi) issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiaries; (vii) dissolve, liquidate, or terminate the business of the Company or any of its subsidiaries, or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt; (viii) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii) with respect to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company); (ix) Dispose of or Encumber any material assets (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(ix) with respect to any Disposition or Encumbrance in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company); (x) change any of its distribution policies or create any cash reserves in excess of the cash reserves permitted in the calculation of Available Cash under this Agreement; (xi) enter into a material, new line of business other than that set forth in Section 2.04; (xii) enter into any material acquisition, divestiture, joint venture, or partnership; (xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or (xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction. (b) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units, which consent shall not be unreasonably withheld, conditioned, or delayed: (i) enter into, amend, modify, or terminate any material contract, agreement, or transaction (including any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of business; (ii) other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million in the aggregate in the case of all such Affiliate Transactions (it being agreed that (x) the consent of the holders of the Class B Units shall not be required under this Section 6.03(b)(ii) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of business, of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company and (y) the consent of the holders of the Class B Units shall be required under this Section 6.03(b)(ii) for entry into, modification or termination of any Affiliate Transactions not in excess of $1 million in the aggregate if such Affiliate Transactions are not on arms-length terms); or (iii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve the payment by the Company or its subsidiaries of more than $1 million per instance or $5 million in the aggregate for all instances, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim that materially restricts the business of the Company or any of its subsidiaries.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP), Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Major Decisions. The Except for (i) any action taken to comply with any Material Project Agreement, any Material Contract, or the Organizational Documents of Star Moon Holdings or of any Tax Equity Entities (collectively, the “Contractual Obligations”), (ii) any Loss Reduction Activity, and (iii) the matters set forth on Schedule 6.03, the Company and its subsidiaries Subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries Subsidiaries not to, take any action under (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) specified in this Section 6.03 (collectively, the “Major Decisions”) without:without having first obtained Class B Member Approval (which consent shall, except to the extent expressly provided below in this Section 6.03, be given or withheld, in each case, in accordance with the applicable Decision Standard described below):
(a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion):
(i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents Organizational Documents of any subsidiary Subsidiary of the Company in a manner that (i) adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary Subsidiary of the Company, (ii) would, on a pro forma basis, reduce the amount of Projected Available Cash during any Quarter, as compared to the amount of Projected Available Cash during such Quarter if such action had not been taken, or (iii) would permit any direct or indirect Class B Units of Star Moon Holdings to be transferred to, or otherwise held by, any NEP Excluded Party;
(iib) alter or change the rights, preferencepreferences, or privileges of the Class A Units or Class B Units in a manner that adversely affects the Class B Members’ rights in the Class B Units;
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) provide for the payment of any dividend or distribution onincur Indebtedness other than (i) Emergency Loans pursuant to Section 4.05(a), or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units;
(v) except (A) loans in an aggregate principal amount outstanding at any one time of not more than two hundred million dollars ($60 million 200,000,000); (ii) Tax Equity Repurchase Loans pursuant to Section 4.05(a4.05(b), and in an aggregate principal amount outstanding at any one time not exceeding two hundred million dollars (B$200,000,000) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, and expenses incurred by the Company or expenses the applicable Subsidiaries in connection with Tax Equity Repurchases); (iii) Tax Payment Loans pursuant to Section 4.05(c); (iv) Working Capital Loans pursuant to Section 4.05(d), in an aggregate principal amount outstanding at any one time not exceeding fifty million dollars ($50,000,000); and (v) any other Indebtedness (other than pursuant to Contractual Obligations and the foregoing clauses (i) through (iv)) in an aggregate principal amount outstanding at any one time not exceeding fifteen million dollars ($15,000,000); provided that Class B Member Approval of the incurrence of any Indebtedness (other than pursuant to Contractual Obligations and the foregoing clauses (i) through (iv)) in an aggregate principal amount outstanding at any time exceeding fifty million dollars ($50,000,000) shall be subject to the Sole Discretion Standard; provided, further, that, after a Triggering Event Date, Class B Member Approval shall be required under this Section 6.03(d) for the incurrence 896060.18-WILSR01A - MSW of any Indebtedness (other than those set forth in the foregoing clauses (i) and (iii) and pursuant to Contractual Obligations);
(e) (i) pay or declare any dividend or distribution on any equity interest of the Company or any of its subsidiaries incurred in connection therewithSubsidiaries, except (A) pursuant as expressly contemplated by this Agreement or by the Organizational Documents of the Tax Equity Entities and (B) dividends and distributions declared and paid by the Company’s Subsidiaries to Section 4.05(b)the Company or to another Subsidiary of the Company; or (ii) redeem or repurchase any equity interests of the Company or any of its Subsidiaries, incur Indebtednessother than the redemption, including repurchase, or other acquisition of the refinancing Tax Equity Interests of existing Indebtednessany Tax Equity Entity as contemplated by the applicable Organizational Documents;
(vif) authorize or issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiariesSubsidiaries, excluding (i) the issuance of any Tax Equity Interests contemplated by the Execution Date Portfolio Project Model; and (ii) the Company’s issuance of Class A Units and Class B Units to NEP Member pursuant to Section 4.03(a);
(viig) dissolve, liquidate, or terminate the business of convert the Company or any of its subsidiariesSubsidiaries to an entity other than a limited liability company or other limited liability entity, or dissolve or liquidate the Company or any of its Subsidiaries (including pursuant to Section 12.01), or take any voluntary action to become Bankrupt (including cause the Company or any actions under Article 12 hereof) or agree of its Subsidiaries to become Bankrupt;
(viiih) purchase, rent, license, exchange, or otherwise acquire (each, an “Acquisition”) any material assets, including other than (i) Acquisitions in the ordinary course of business; (ii) any tax equity interests in any project operated by a subsidiary of the CompanyTax Equity Repurchase, except to the extent permitted under by Section 4.05(b); and (iii) Acquisitions (it being agreed other than those referred to in the foregoing clauses (i) and (ii)) for consideration not exceeding (A) ten million dollars ($10,000,000) in any single transaction or series of related transactions or (B) fifty million dollars ($50,000,000) in aggregate across all such Acquisitions; provided that any Acquisition of assets for consideration exceeding (1) thirty million dollars ($30,000,000) in any single transaction or series of related transactions or (2) one hundred fifty million dollars ($150,000,000) in aggregate across all such Acquisitions shall, in each case, be subject to the consent Sole Discretion Standard;
(i) Dispose of or Encumber, in any single transaction or series of related transactions, any assets that, individually or in the aggregate, are material to the Company and its Subsidiaries, other than any Dispositions or Encumbrances (i) to a Subsidiary of the holders Company; (ii) required under applicable Law; (iii) in the ordinary course of business; (iv) in connection with Permitted Liens; (v) pursuant to the exercise of a Power Purchaser Buyout Event; or (vi) of assets for consideration not exceeding (A) ten million dollars ($10,000,000) in any single transaction or series of related transactions or (B) fifty million dollars ($50,000,000) in aggregate across all such Dispositions or Encumbrances; provided that any such Disposition or Encumbrance of assets for consideration exceeding (1) thirty million dollars ($30,000,000) in any single transaction or series of related transactions or (2) one hundred fifty million dollars ($150,000,000) in aggregate across all such Dispositions or Encumbrances shall, in each case, be subject to the Sole Discretion Standard; provided, further that, after a Triggering Event Date, Class B Units Member Approval shall not be required under this Section 6.03(a)(viii6.03(i) with respect for any Disposition or 896060.18-WILSR01A - MSW Encumbrance of any such assets (other than pursuant to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Companyforegoing clauses (ii) through (v) and Contractual Obligations);
(ixj) Dispose of merge or Encumber any material assets (it being agreed that the consent consolidate with, or acquire all or substantially all of the holders of the Class B Units shall not be required under this Section 6.03(a)(ix) with respect to assets of, another Person (other than any Disposition such merger or Encumbrance in the ordinary course of business of spare parts consolidation with, or similar assets necessary to conduct the operations of the subsidiaries acquisition of, any direct or indirect wholly-owned Subsidiary of the Company) if the Company or any of its Subsidiaries is required to pay (or entitled to receive) consideration in such merger or consolidation having an aggregate fair market value exceeding (i) ten million dollars ($10,000,000) in any such single merger or consolidation transaction or series of related merger or consolidation transactions or (ii) fifty million dollars ($50,000,000) in aggregate across all such merger and consolidation transactions); provided that any such merger, consolidation, or acquisition in which the Company (or a Subsidiary of the Company) is required to pay or is entitled to receive (or Members are entitled to receive) merger consideration having an aggregate fair market value exceeding (A) thirty million dollars ($30,000,000) in any such single merger or consolidation transaction or series of related merger or consolidation transactions or (B) one hundred fifty million dollars ($150,000,000) in aggregate across all such merger and consolidation transactions, shall, in each case, be subject to the Sole Discretion Standard;
(xk) change any of its distribution policies policies, enter into any Contract that prohibits or create restricts distributions, or requires the establishment of any cash reserves in excess of the cash reserves permitted in under the calculation definition of Available Cash under this Agreement;
(xil) enter into a material, new line of business other than that set forth in Section 2.04;
(xii) enter into any material acquisition, divestiture, joint venture, or partnership;
(xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(bi) with respect to the following actionsCompany, having first obtained that contemplated by Section 2.04, or (ii) with respect to any Subsidiary, that contemplated by the written consent comparable provisions of the holders Organizational Documents of a majority such Subsidiary (it being understood and agreed among the Members that (A) any battery energy storage system co-located at any of the issued Projects shall not constitute a new line of business so long as the acquisition and outstanding construction costs and operational impacts with respect to such battery energy storage system would not, on a pro forma basis, reduce the amount of Projected Available Cash during any Quarter, as compared to the amount of Projected Available Cash during such Quarter if such storage activity had not been taken and (B) this Agreement shall be amended as reasonably necessary to take into account such battery energy storage system in a manner consistent with the relative economic, commercial, legal, regulatory and tax risks of the Members as currently contemplated by this Agreement);
(m) enter into, modify, or terminate any joint venture or partnership or otherwise acquire the equity interests of, any Person, other than (i) the entry into partnerships between or among direct or indirect, wholly-owned Subsidiaries of the Company; (ii) the acquisition of equity interests in a direct or indirect wholly-owned Subsidiary of the Company; (iii) in connection with the consummation of (A) any Tax Equity Financing with respect to any Project whose equity interests are Delayed Assets and (B) the Delayed Asset Closing with respect to the applicable Delayed Assets; and (iv) any Tax Equity Repurchase, to the extent permitted by Section 4.05(b); provided that any such joint venture or partnership or other acquisition of equity interests (other than those referred to in the foregoing clauses (iii) and (iv)) that, by its terms, requires the contribution or payment by the Company (or a Subsidiary of the Company) of an 896060.18-WILSR01A - MSW amount exceeding fifty million dollars ($50,000,000) shall be subject to the Sole Discretion Standard;
(n) make or amend any Tax election or allocation with respect to the Company or its Subsidiaries in a manner that would materially and adversely affect the Class B UnitsUnits (including changing the Company’s Tax treatment as a partnership for U.S. federal Tax purposes);
(o) (i) enter into, which consent amend, or terminate any Material Contract or any Unaffiliated Material Project Agreement; (ii) suspend, accelerate, or defer any material payments under any Material Contract or Unaffiliated Material Project Agreement; or (iii) assign (to any Person other than a Subsidiary of the Company), waive, or relinquish any material rights (or security posted) under any Material Contract or Unaffiliated Material Project Agreement, other than any action referred to in the foregoing clauses (i) through (iii) that (A) is taken in the ordinary course of business or (B) would not, on a pro forma basis, reduce the amount of Projected Available Cash during any Quarter, as compared to the amount of Projected Available Cash during such Quarter if such action had not been taken; provided, however, that Class B Member Approval shall not be unreasonably withheldrequired under this Section 6.03(o) to enter into or amend any Project Financing Document to the extent that the terms thereof constitute a Tax Equity Financing Change (as defined in the Purchase Agreement) solely for purposes of preparing the Additional Closing Portfolio Project Model (as defined in the Purchase Agreement); provided, conditionedfurther, or delayed:that, after a Triggering Event Date, Class B Member Approval shall be required under this Section 6.03(o) for any action described in the foregoing clauses (i) through (iii) (other than any such action taken in the ordinary course of business);
(ip) enter into, amend, modify, or terminate any material contract, agreementAffiliate Transaction, or transaction (including waive any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of business;
(ii) other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, or terminate material rights under any Affiliate Transaction; provided, in excess of $1 million in the aggregate in the case of all such Affiliate Transactions (it being agreed however, that (x) the consent of the holders of the Class B Units Member Approval shall not be required under this for (i) Capital Calls pursuant to Section 6.03(b)(ii4.04 to the extent permitted thereby; (ii) loans from Members or their Affiliates pursuant to Section 4.05 to the extent and in such amounts permitted thereby; (iii) Hedging Instruments with respect to Affiliates in the ordinary course of business; or (iv) any other Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of business, of spare parts or similar assets necessary on terms no less favorable to conduct the operations of the subsidiaries of the Company or its applicable Subsidiary than generally available in an arm’s-length transaction, and (y) that would not, on a pro forma basis, reduce the consent amount of Projected Available Cash during any Quarter, as compared to the holders amount of the Projected Available Cash during such Quarter if such action with respect to such Affiliate Transaction had not been taken; provided, further, that, after a Triggering Event Date, Class B Units Member Approval shall be required under this Section 6.03(b)(ii6.03(p) for entry intoany loans from Members or their Affiliates pursuant to Section 4.05, modification or termination of any Affiliate Transactions not in excess of $1 million in other than Emergency Loans and Tax Payment Loans to the aggregate if such Affiliate Transactions are not on arms-length terms); orextent permitted under Section 4.05;
(iiiq) initiate commence, settle, terminate, or fail to pursue any litigation or Action other dispute resolution proceeding than a Tax controversy that is reasonably expected to involve the payment by the Company or its subsidiaries Subsidiaries of more an amount (excluding out-of-pocket fees, costs, and disbursements, but including reasonable attorneys’ fees and disbursements incurred by the Company and its Subsidiaries in connection therewith) in excess of ten million dollars ($10,000,000) with respect to any individual Action or twenty-five million dollars ($25,000,000) with respect to any group of related Actions; provided that any Action that is a Guaranteed Tax Credit Dispute shall remain subject to control by NEP 896060.18-WILSR01A - MSW Member at all times and shall not require Class B Member Approval pursuant to this Section 6.03(q) or otherwise;
(r) accelerate, delay, defer, or otherwise modify any material payments, payables, or receivables, other than $1 million per instance or $5 million in the aggregate for all instancesordinary course of business, except as would not, on a pro forma basis, reduce the amount of Projected Available Cash during any Quarter, as compared to the amount of Projected Available Cash during such Quarter if such action had not been taken;
(s) adopt or approve materially amend any hedging plan (i) outside the settlement ordinary course of any Claim for more than $1 million per Claim business or $5 million (ii) in amounts exceeding the aggregate for all Claims or any Claim that materially restricts the business previously established hedging policy of the Company or any of its subsidiariesSubsidiaries (as established pursuant to the applicable EMSA);
(t) after a Triggering Event Date, (i) adopt any operating or capital budget with respect to any Fiscal Year commencing after a Triggering Event Date; (ii) materially modify any operating or capital budget then in effect; (iii) incur, or commit to incur, any material expenditure not included or provided for in the applicable operating or capital budget then in effect; or (iv) make any Capital Call, other than Capital Calls to provide funds to remedy an Emergency or to make a Required Tax Payment; or (u) agree to take any of the foregoing actions.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Nextera Energy Partners, Lp)
Major Decisions. The Except for any action taken to comply with (x) any Material Project Agreement, (y) any Material Contract, or (z) the Project Financing Documents (in each case, to the extent that the Company or its Subsidiary that is a party thereto does not have a discretionary right thereunder with respect to such action) (collectively, the “Contractual Obligations”), the Company and its subsidiaries Subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries Subsidiaries not to, take any action under (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) specified in this Section 6.03 (collectively, the “Major Decisions”) withoutwithout having first obtained Class B Member Approval and Class C Member Approval which consent, in each case, except as may be expressly provided below in this Section 6.03, shall be given or withheld in accordance with the applicable Decision Standard described below; provided, however, that, in the case of clauses (a), (b), (c), (p), and (q), an action that affects the Class B Members (but not the Class C Members) shall require only Class B Member Approval, and an action that affects the Class C Members (but not the Class B Members) shall require only Class C Member Approval:
(a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion):
(i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary Subsidiary of the Company in a manner that (i) solely with respect to the Class B Members, adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary Subsidiary of the Company or (ii) solely with respect to the Class C Members, adversely affects the Class C Members’ interest in the Company or indirect interest in any Subsidiary of the Company;
(iib) (i) solely with respect to the Class B Members, alter or change the rights, preferencepreferences, or privileges of the Class A Units or Class B Units in a manner that or, if and to the extent adversely affects affecting the Class B Members’ rights in the Class B Units;, the Class A Unit or the Class C Units; or (ii) solely with respect to the Class C Members, alter or change the rights, preferences, or privileges of the Class C Units or, if and to the extent adversely affecting the Class C Members’ rights in the Class C Units, the Class A Unit or the Class B Units; 870723.28-WILSR01A - MSW
(iiic) increase or decrease the authorized number of or issued Class A Units, Class B Units, or Class C Units, or the Pro Rata Share represented by any Units or Class B of Units, other than pursuant to the terms of this Agreement;
(ivd) provide incur Indebtedness (including, for the payment avoidance of any dividend or distribution on, or the redemption or repurchase ofdoubt, any equity security of the Company that is junior Working Capital Loans), other than (i) Tax Equity Repurchase Loans pursuant to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units;
(vSection 4.05(b) except (A) loans in an aggregate principal amount outstanding at any one time of not more than exceeding $60 million 50 million; (ii) Emergency Loans pursuant to Section 4.05(a4.05(d) in an aggregate principal amount outstanding at any one time not exceeding $50 million; (iii) Tax Payment Loans pursuant to Section 4.05(c); and (iv) Indebtedness (other than pursuant to clauses (i) through (iii)) in an aggregate principal amount outstanding at any one time not exceeding $3 million; provided that the incurrence of any Indebtedness (including Working Capital Loans, but excluding Indebtedness pursuant to clauses (i) through (iv) and Contractual Obligations) in an aggregate principal amount outstanding at any time exceeding $15 million shall be subject to the Sole Discretion Standard; provided, further, that, after the occurrence of a Triggering Event, Class B Member Approval and Class C Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness (including Working Capital Loans, but excluding Indebtedness pursuant to Contractual Obligations);
(e) (i) pay or declare any dividend or distribution on any equity interest of the Company or any of its Subsidiaries, except (A) as expressly contemplated by this Agreement or by the Project Financing Documents and (B) loans in aggregate amount dividends and distributions declared and paid by the Company’s Subsidiaries to the Company or to another Subsidiary of not more than $140 million the Company; or (plus the amount of ii) redeem or repurchase any reasonable and documented out-of-pocket costs, fees, or expenses equity interests of the Company or any of its subsidiaries incurred in connection therewith) Subsidiaries, other than the redemption, repurchase, or other acquisition of the Tax Equity Interests of Pine Brooke Company or any other Tax Equity Entity pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtednessapplicable Tax Equity Agreements;
(vif) authorize or issue any new or additional Class A Units, Class B Units, or Class C Units or other equity interests of the Company or any of its subsidiariesSubsidiaries;
(viig) dissolve, liquidate, or terminate the business of convert the Company or any of its subsidiariesSubsidiaries to an entity other than a limited liability company or other limited liability entity, dissolve or take liquidate the Company or any voluntary action to become Bankrupt of its Subsidiaries, (including any actions under Article 12 hereof) or agree take any voluntary action to become Bankrupt;
(viiih) purchase, rent, license, exchange, or otherwise acquire (each, an “Acquisition”) any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) other than (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viiii) with respect to any purchases or acquisitions Acquisition in the ordinary course of business of spare parts or similar assets necessary to conduct used in connection with the operations of the subsidiaries Subsidiaries of the Company; (ii) the redemption, repurchase, or other acquisition of Tax Equity Interests of Pine Brooke Company or any other Tax Equity Entity through the use of Tax Equity Repurchase Loans to the extent permitted by Section 4.05(b);; and (iii) any Acquisition (other than those referred to in clauses (i) and (ii)) of assets for consideration not exceeding (A) $2 million in any single transaction or series of related transactions or (B) $10 million in the aggregate across all such Acquisitions; provided that any Acquisition of assets for consideration exceeding (1) $5 million in any single transaction or series of related transactions or (2) $15 million in the aggregate across all such Acquisitions shall be subject to the Sole Discretion Standard; 870723.28-WILSR01A - MSW
(ixi) Dispose of or Encumber Encumber, in any transaction or series of related transactions, any assets that, individually or in the aggregate, are material assets (it being agreed that to the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(ix) with respect to Company and its Subsidiaries, other than any Disposition or Encumbrance (i) to a Subsidiary of the Company; (ii) required under applicable Law; (iii) in the ordinary course of business of spare parts or similar assets necessary used to conduct the operations of the subsidiaries Subsidiaries of the Company; (iv) pursuant to a Power Purchaser Buyout Event (provided that Class B Member Approval and Class C Member Approval shall be required for any determination of fair market value of the Harmony Solar Project pursuant to the Harmony Solar Power Purchase Agreement or fair market value of the ▇▇▇▇▇▇ Creek Solar Project pursuant to the ▇▇▇▇▇▇ Creek Solar Power Purchase Agreement, in each case, to the extent such fair market value is not otherwise determined by an independent appraiser in accordance with the Harmony Solar Power Purchase Agreement or ▇▇▇▇▇▇ Creek Solar Power Purchase Agreement, as applicable); (v) in connection with Permitted Encumbrances; (vi) of assets in any transaction or series of related transactions for consideration not exceeding (A) $2 million in any single transaction or series of related transactions or (B) $10 million in the aggregate across all such Dispositions or Encumbrances; provided that any Dispositions or Encumbrances of assets for consideration exceeding (1) $5 million in any single transaction or series of related transactions or (2) $15 million in the aggregate across all such Dispositions or Encumbrances shall be subject to the Sole Discretion Standard; or (vii) described on Schedule 6.03(i) hereto to the extent such Disposition or Encumbrance would not reduce the amount of Projected Available Cash during any Quarter, unless the Company or its applicable Subsidiary shall be entitled to compensation in respect of such reduction in Projected Available Cash by payment of a Build-Out Payment or other remedy pursuant to the applicable Build-Out Agreement;
(j) merge or consolidate with, or acquire all or substantially all of the assets of, another Person (other than a Subsidiary of the Company); provided that any such merger, consolidation, or acquisition in which the Company (or a Subsidiary of the Company) is required to pay or receives merger consideration having an aggregate fair market value exceeding $15 million shall be subject to the Sole Discretion Standard;
(xk) change enter into any Contract that prohibits or restricts distributions, or requires the establishment of its distribution policies or create any cash reserves in excess of the cash reserves permitted in the calculation definition of Available Cash under this Agreement;
(xil) enter into a material, new line of business other than that set forth in contemplated by Section 2.04;
(xiim) enter into any material acquisitioninto, divestiture, joint venturemodify, or partnership;
terminate any joint venture or partnership or otherwise acquire the equity interests of any Person, other than, in each case, (xiiii) take, or consent a wholly owned Subsidiary of the Company; (ii) amendments to the taking limited liability company agreement of, “bonus” depreciation under Code Section 168(kBlue Summit Interconnection to the extent either (A) or any corresponding provision of the Code; or
such amendment would not, (xivx) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(b) solely with respect to the following actionsClass B Members, having first obtained adversely affect the written consent Class B Members’ interest in the Company or indirect interest in Blue Summit Interconnection or (y) solely with respect to the Class C Members, adversely affect the Class C Members’ interest in the Company or indirect interest in Blue Summit Interconnection or (B) described on Schedule 6.03(m) hereto; and (iii) the repurchase, redemption or other acquisition of the holders Tax Equity Interests of Pine Brooke Company or any other Tax Equity Entity, to the extent permitted by Section 4.05(b); provided that any such joint venture or partnership or other acquisition of equity interests that, by its terms, requires the contribution or payment by the Company (or a majority Subsidiary of the issued and outstanding Company) of an amount exceeding $15 million shall be subject to the Sole Discretion Standard; 870723.28-WILSR01A - MSW
(n) make or amend any tax election or allocation with respect to the Company or its Subsidiaries in a way that (i) solely with respect to the Class B UnitsMembers, would materially and adversely affect the Class B Units or (ii) solely with respect to the Class C Members, would materially and adversely affect the Class C Units (including, in either case, changing the Company’s tax treatment as a partnership for U.S. federal tax purposes);
(o) other than with respect to any Power Purchase Agreements (which consent shall not be unreasonably withheldare addressed in clause (p) below), conditionedand other than such amendments, modifications, or delayed:
terminations of the Material Contracts described on Schedule 6.03(o) hereto, (i) enter into, amend, modify, or terminate any material contract, agreement, or transaction (including any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of business;
Contract; (ii) suspend, accelerate, defer, or otherwise modify the timing of, any material payments under any Material Contract; or (iii) amend, assign, waive, or relinquish any material rights (or security posted) under any Material Contract, in each case of clauses (i) through (iii), other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million in the aggregate in the case of all such Affiliate Transactions (it being agreed that (x) the consent of the holders of the Class B Units shall not be required under this Section 6.03(b)(ii) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of business, and except for any action contemplated by clauses (i) through (iii) that (A) (1) would not reduce the amount of spare parts or similar assets necessary Available Cash projected in the then-current Budget (with respect to conduct the operations period covered thereby) and the Portfolio Project Model (with respect to future periods not covered by such Budget) to be available for distribution to the Members (“Projected Available Cash”) during any Quarter, as compared to the amount of Projected Available Cash during such Quarter if such action had not been taken; (2) would not otherwise be materially adverse to the subsidiaries of the Company and (y) the consent of the holders Class B Members’ rights in respect of the Class B Units shall be required under this Section 6.03(b)(ii) for entry into, modification or termination of any Affiliate Transactions not in excess of $1 million in the aggregate if such Affiliate Transactions are not on arms-length terms); or
(iii) initiate any litigation or other dispute resolution proceeding rights pursuant to this Agreement or the Class C Members’ rights in respect of the Class C Units or other rights pursuant to this Agreement; (3) would not reasonably be expected to involve materially interfere with or adversely affect the payment performance by the Company or its subsidiaries of more than $1 million per instance Subsidiaries under any other then-existing Material Contract (including any Power Purchase Agreement); and (4) would not amend or $5 million in modify the aggregate for all instancesterms relating to credit support, including guarantees, or approve the settlement of indemnification rights in any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim manner that materially restricts the business of is material and adverse to the Company or its Subsidiaries; or (B) extends the then-remaining term of such Material Contract but does not otherwise materially amend the provisions thereof; provided that any action contemplated by clauses (i) through (iii) that would reduce the amount of its subsidiaries.Projected Available Cash during any Quarter shall be subject to the Sole Discretion Standard;
Appears in 1 contract
Sources: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Major Decisions. The Except for any action taken to comply with any Material Project Agreement, any Material Contract, or the Organizational Documents of any Tax Equity Entities (collectively, the “Contractual Obligations”), (ii) any Loss Reduction Activity, and (iii) the matters set forth on Schedule 6.03, the Company and its subsidiaries Subsidiaries shall not, and the Managing Member Manager shall cause the Company and its subsidiaries Subsidiaries not to, take any action under (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) specified in this Section 6.03 (collectively, the “Major Decisions”) withoutwithout having first obtained Class A Member Approval and Class B Member Approval (which consent shall, except to the extent expressly provided below in this Section 6.03, be given or withheld, in each case, in accordance with the applicable Decision Standard described below; provided, however, that, in the case of clauses (a), (b), (c), and (n), an action that affects the Class A Members (but not the Class B Members) shall require only Class A Member Approval, and an action that affects the Class B Members (but not the Class A Members) shall require only Class B Member Approval:
(a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion):
(i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents Organizational Documents of any subsidiary Subsidiary of the Company in a manner that (i) solely with respect to the Class A Members, adversely affects the Class A Members’ interest in the Company or indirect interest in any Subsidiary of the Company or (ii) solely with respect to the Class B Members, adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary Subsidiary of the Company;
(iib) (i) solely with respect to the Class A Members, alter or change the rights, preferencepreferences, or privileges of the Class A Units Units; or Class B Units in a manner that adversely affects (ii) solely with respect to the Class B Members’ rights in , alter or change the rights, preferences, or privileges of the Class B Units;; 897613.05-WILSR01A - MSW
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units, or the Pro Rata Share represented by any Units or Class of Units, other than pursuant to the terms of this Agreement;
(ivd) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior incur Indebtedness other than (i) Emergency Loans pursuant to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units;
(vSection 4.05(a) except (A) loans in an aggregate principal amount outstanding at any one time of not more than two hundred million dollars ($60 million 200,000,000); (ii)Tax Equity Repurchase Loans pursuant to Section 4.05(a), and 4.05(b) in an aggregate principal amount outstanding at any one time not exceeding two hundred million dollars (B$200,000,000) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, and expenses incurred by the Company or expenses the applicable Subsidiaries in connection with Tax Equity Repurchases); (iii) Tax Payment Loans pursuant to Section 4.05(c); (iv) Working Capital Loans pursuant to Section 4.05(d) in an aggregate principal amount outstanding at any one time not exceeding fifty million dollars ($50,000,000); and (v) any other Indebtedness (other than pursuant to Contractual Obligations and the foregoing clauses (i) through (iv)) in an aggregate principal amount outstanding at any one time not exceeding fifteen million dollars ($15,000,000); provided that Class A Member Approval and Class B Member Approval of the incurrence of any Indebtedness other than pursuant to Contractual Obligations and the foregoing clauses (i) through (iv) in an aggregate principal amount outstanding at any time exceeding fifty million dollars ($50,000,000) shall be subject to the Sole Discretion Standard; provided, further, that, after a Triggering Event Date, Class A Member Approval and Class B Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness other than such Indebtedness set forth in the foregoing clauses (i) and (iii) and pursuant to Contractual Obligations);
(e) (i) pay or declare any dividend or distribution on any equity interest of the Company or any of its subsidiaries incurred in connection therewithSubsidiaries, except (A) pursuant as expressly contemplated by this Agreement or by the Organizational Documents of the Tax Equity Entities and (B) dividends and distributions declared and paid by the Company’s Subsidiaries to Section 4.05(b)the Company or to another Subsidiary of the Company; or (ii) redeem or repurchase any equity interests of the Company or any of its Subsidiaries, incur Indebtednessother than the redemption, including repurchase, or other acquisition of the refinancing Tax Equity Interests of existing Indebtednessany Tax Equity Entity as contemplated by the applicable Organizational Documents;
(vif) authorize or issue any new or additional Class A Units, Units or Class B Units, Units or other equity interests of the Company or any of its subsidiariesSubsidiaries, excluding the issuance of any Tax Equity Interests contemplated by the Execution Date Portfolio Project Model;
(viig) dissolve, liquidate, or terminate the business of convert the Company or any of its subsidiariesSubsidiaries to an entity other than a limited liability company or other limited liability entity, or dissolve or liquidate the Company or any of its Subsidiaries, (including pursuant to Section 12.01) or take any voluntary action to become Bankrupt (including cause the Company or any actions under Article 12 hereof) or agree of its Subsidiaries to become Bankrupt;
(viiih) purchase, rent, license, exchange, or otherwise acquire (each, an “Acquisition”) any material assets, including other than (i) Acquisitions in the ordinary course of business; (ii) any tax equity interests in any project operated by a subsidiary of the CompanyTax Equity Repurchase, except to the extent permitted under by Section 4.05(b); and (iii) Acquisitions (it being agreed other than those referred to in the foregoing clauses (i) and (ii)) for consideration not exceeding (A) ten million dollars ($10,000,000) in any single transaction or series of related transactions or (B) fifty million dollars ($50,000,000) in aggregate across all such Acquisitions; provided that any Acquisition of assets for consideration exceeding (1) thirty million dollars ($30,000,000) in any single transaction or series of related transactions or (2) one hundred 897613.05-WILSR01A - MSW fifty million dollars ($150,000,000) in aggregate across all such Acquisitions shall, in each case, be subject to the consent Sole Discretion Standard;
(i) Dispose of or Encumber, in any single transaction or series of related transactions, any assets that, individually or in the aggregate, are material to the Company and its Subsidiaries, other than any Dispositions or Encumbrances (i) to a Subsidiary of the holders Company; (ii) required under applicable Law; (iii) in the ordinary course of business; (iv) in connection with Permitted Encumbrances; (v) pursuant to the exercise of a Power Purchaser Buyout Event; or (vi) of assets for consideration not exceeding (A) ten million dollars ($10,000,000) in any single transaction or series of related transactions or (B) fifty million dollars ($50,000,000) in aggregate across all such Dispositions or Encumbrances; provided that any such Disposition or Encumbrance of assets for consideration exceeding (1) thirty million dollars ($30,000,000) in any single transaction or series of related transactions or (2) one hundred fifty million dollars ($150,000,000) in aggregate across all such Dispositions or Encumbrances shall, in each case, be subject to the Sole Discretion Standard; provided, further, that, after a Triggering Event Date, Class A Member Approval and Class B Units Member Approval shall not be required under this Section 6.03(a)(viii6.03(i) with respect for any Disposition or Encumbrance of any such assets (other than pursuant to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Companyforegoing clauses (ii) through (v) and Contractual Obligations);
(ixj) Dispose of merge or Encumber any material assets (it being agreed that the consent consolidate with, or acquire all or substantially all of the holders of the Class B Units shall not be required under this Section 6.03(a)(ix) with respect to assets of, another Person (other than any Disposition such merger or Encumbrance in the ordinary course of business of spare parts consolidation with, or similar assets necessary to conduct the operations of the subsidiaries acquisition of, any direct or indirect wholly-owned Subsidiary of the Company) if the Company or any of its Subsidiaries is required to pay (or entitled to receive) consideration in such merger or consolidation having an aggregate fair market value exceeding ten million dollars ($10,000,000) in any such single merger or consolidation transaction or series of related merger or consolidation transactions or (ii) fifty million dollars ($50,000,000) in aggregate across all such merger and consolidation transactions); provided that any such merger, consolidation, or acquisition in which the Company (or a Subsidiary of the Company) is required to pay or is entitled to receive (or Members are entitled to receive) merger consideration having an aggregate fair market value exceeding (A) thirty million dollars ($30,000,000) in any such single merger or consolidation transaction or series of related merger or consolidation transactions or (B) one hundred fifty million dollars ($150,000,000) in aggregate across all such merger and consolidation transactions, shall, in each case, be subject to the Sole Discretion Standard;
(xk) change any of its distribution policies policies, enter into any Contract that prohibits or create restricts distributions, or requires the establishment of any cash reserves in excess of the cash reserves permitted in under the calculation definition of Available Cash under this Agreement;
(xil) enter into a material, new line of business other than that set forth in Section 2.04;
(xii) enter into any material acquisition, divestiture, joint venture, or partnership;
(xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(bi) with respect to the following actionsCompany, having first obtained that contemplated by Section 2.04; or (ii) with respect to any Subsidiary, that contemplated by the written consent comparable provisions of the holders Organizational Documents of a majority such Subsidiary (it being understood and agreed among the Members that neither green hydrogen production nor battery storage at any of the issued Projects shall constitute a new line of business, so long as such production or storage does not adversely affect the applicable Project Company’s ability to perform its obligations under the applicable Power Purchase Agreement to which such Project Company is a party); 897613.05-WILSR01A - MSW
(m) enter into, modify, or terminate any joint venture or partnership or otherwise acquire the equity interests of any Person, other than (i) the entry into partnerships between or among direct or indirect, wholly-owned Subsidiaries of the Company; (ii) the acquisition of equity interests in a direct or indirect wholly-owned Subsidiary of the Company; (iii) in connection with the consummation of (A) any Tax Equity Financing with respect to any Project whose equity interests are Delayed Assets and outstanding (B) the Delayed Asset Closing with respect to the applicable Delayed Assets, in each case, in accordance with the terms and conditions of the ▇▇▇▇/NEP APA; and (iv) any Tax Equity Repurchase, to the extent permitted by Section 4.05(b); provided that any such joint venture or partnership or other acquisition of equity interests (other than those referred to in the foregoing clauses (iii) and (iv)) that, by its terms, requires the contribution or payment by the Company (or a Subsidiary of the Company) of an amount exceeding fifty million dollars ($50,000,000) shall be subject to the Sole Discretion Standard;
(n) make or amend any Tax election or allocation with respect to the Company or its Subsidiaries in a manner that (i) solely with respect to the Class A Members, would materially and adversely affect the Class A Units or (ii) solely with respect to the Class B UnitsMembers, which consent shall not be unreasonably withheldwould materially and adversely affect the Class B Units (including changing the Company’s Tax treatment as a partnership for U.S. federal Tax purposes);
(o) (i) enter into, conditionedamend, or delayed:terminate any Material Contract or any Unaffiliated Material Project Agreement; (ii) suspend, accelerate, or defer any material payments under any Material Contract or Unaffiliated Material Project Agreement; or (iii) assign (to any Person other than a Subsidiary of the Company), waive or relinquish any material rights (or security posted) under any Material Contract or Unaffiliated Material Project Agreement, other than any action referred to in the foregoing clauses (i) through (iii) that (A) is taken in the ordinary course of business or (B) would not, on a pro forma basis, reduce the amount of Projected Available Cash during any Quarter, as compared to the amount of Projected Available Cash during such Quarter if such action had not been taken; provided that, after a Triggering Event Date, Class A Member Approval and Class B Member Approval shall be required under this Section 6.03(o) for any action described in the foregoing clauses (i) through (iii) (other than any such action taken in the ordinary course of business);
(ip) enter into, amend, modify, or terminate any material contract, agreementAffiliate Transaction, or transaction waive any material rights under any Affiliate Transaction; provided, however, that neither Class A Member Approval nor Class B Member Approval shall be required for (including any Material Contract i) Capital Calls pursuant to Section 4.04 to the extent permitted thereby; (as defined ii) loans from Members or their Affiliates pursuant to Section 4.05 to the extent and in such amounts permitted thereby; (iii) Hedging Instruments with Affiliates in the Asset Purchase Agreement)) outside the normal ordinary course of business;
; or (iiiv) any other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million in the aggregate in the case of all such Affiliate Transactions (it being agreed that (x) the consent of the holders of the Class B Units shall not be required under this Section 6.03(b)(ii) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of business, of spare parts or similar assets necessary on terms no less favorable to conduct the operations of the subsidiaries of the Company or its applicable Subsidiary than generally available in an arm’s-length transaction, and (y) that would not, on a pro forma basis, reduce the consent amount of Projected Available Cash during any Quarter, as compared to the holders amount of the Projected Available Cash during such Quarter if such action with respect to such Affiliate Transaction had not been taken; provided, further, that, after a Triggering Event Date, Class A Member Approval and Class B Units Member Approval shall be required under this Section 6.03(b)(ii6.03(p) for entry intoany loans from Members or their Affiliates pursuant to Section 4.05, modification other than Emergency Loans and Tax Payment Loans, to the extent permitted under Section 4.05; 897613.05-WILSR01A - MSW (q) commence, settle, terminate, or termination of fail to pursue any Affiliate Transactions not in excess of $1 million in the aggregate if such Affiliate Transactions are not on arms-length terms); or
(iii) initiate any litigation or Action other dispute resolution proceeding than a Tax controversy that is reasonably expected to involve the payment by the Company or its subsidiaries Subsidiaries of more than $1 million per instance or $5 million in the aggregate for all instancesan amount (excluding out-of-pocket fees, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim that materially restricts the business of costs, and disbursements, but including reasonable attorneys’ fees and disbursements incurred by the Company and its Subsidiaries in connection therewith) in excess of ten million dollars ($10,000,000) with respect to any individual Action or twenty-five million dollars ($25,000,000) with respect to any group of its subsidiaries.related Actions; provided that any Action that is a Guaranteed Tax Credit Dispute shall remain subject to control by the NEP CEPF Member at all times and shall not require either Class A Member Approval or Class B Member Approval pursuant to this Section 6.03(q) or otherwise;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Nextera Energy Partners, Lp)
Major Decisions. The Except for any action taken (i) to comply with any Material Project Agreement, any Material Contract, or the Organizational Documents of any Tax Equity Entities (in each case, to the extent that the Company or its Subsidiary that is a party thereto does not have a discretionary right thereunder with respect to such action) (collectively, the “Contractual Obligations”) and (ii) in connection with the ▇▇▇▇▇▇ Return (if any), the Company and its subsidiaries Controlled Subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries Controlled Subsidiaries not to, take any action under (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) specified in this Section 6.03 (collectively, the “Major Decisions”) without:without having first obtained Class B Member Approval (which consent shall in each case, except as may be expressly provided below in this Section 6.03, be given or withheld in accordance with the applicable Decision Standard described below):
(a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion):
(i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents Organizational Documents of any subsidiary of the Company Controlled Subsidiary in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary of the CompanyControlled Subsidiary;
(iib) alter or change the rights, preferencepreferences, or privileges of the Class A Units or Class B Units in a manner that or, if and to the extent adversely affects affecting the Class B Members’ rights in the Class B Units, the Class A Units;
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) provide for the payment of any dividend or distribution onincur Indebtedness other than (i) Emergency Loans pursuant to Section 4.05(a), or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units;
(v) except (A) loans in an aggregate principal amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and 50 million; (Bii) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) Tax Equity Repurchase Loans pursuant to Section 4.05(b), incur Indebtednessin an aggregate principal amount outstanding at any one time not exceeding $50 million; and (iii) Indebtedness (other than pursuant to clauses (i) and (ii)) in an aggregate principal amount outstanding at any one time not exceeding $3 million; provided that the incurrence of any Indebtedness (other than pursuant to clauses (i) through (iii) and Contractual Obligations) in an aggregate principal amount outstanding at any time exceeding $15 million shall be subject to the Sole Discretion Standard; provided, including further, that, after the refinancing occurrence of existing Indebtednessa Triggering Event, Class B Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness (other than pursuant to Contractual Obligations);
(vie) (i) pay or declare any dividend or distribution on any equity interest of the Company or any of its Controlled Subsidiaries, except (A) as expressly contemplated by this Agreement or by the Organizational Documents of such Controlled Subsidiaries and (B) dividends and distributions declared and paid by the Company’s Subsidiaries to the Company or to another Subsidiary of the Company; or (ii) redeem or repurchase any equity interests of the Company or any of its Controlled Subsidiaries, other than the redemption, repurchase, or other acquisition of the Tax Equity Interests of Golden Plains Company, or any other Tax Equity Entity pursuant to the applicable Organizational Documents; 953303.07-WILSR01A - MSW
(f) authorize or issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiariesControlled Subsidiaries (excluding (i) the issuance of any Tax Equity Interests contemplated by the Initial Closing Portfolio Project Model; (ii) the Company’s issuance of Class A Units and Class B Units to XPLR Member pursuant to Section 4.03(a); and (iii) the Initial Investor’s purchase of the Initial Aggregate Class B Purchased Units and Additional Aggregate Class B Purchased Units from the Company in accordance with Section 4.03(b) and Section 4.03(c), respectively);
(viig) dissolve, liquidate, or terminate the business of convert the Company or any of its subsidiariesSubsidiaries to an entity other than a limited liability company or other limited liability entity, dissolve, or take liquidate the Company or any voluntary action to become Bankrupt of its Controlled Subsidiaries (including any actions under Article 12 hereof) or agree take any voluntary action to cause the Company or any of its Controlled Subsidiaries to become Bankrupt;
(viiih) purchase, rent, license, exchange, or otherwise acquire (each, an “Acquisition”) any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) other than (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viiii) with respect to any purchases or acquisitions Acquisition in the ordinary course of business of spare parts or similar assets necessary to conduct used in connection with the operations of the subsidiaries Company’s Subsidiaries; (ii) the redemption, repurchase, or other acquisition of Tax Equity Interests of Pine Brooke Company, Golden Plains Company, or any other Tax Equity Entity to the Companyextent permitted by Section 4.05(b); and (iii) any Acquisition in any transaction or series of related transactions (other than those referred to in clauses (i) and (ii)) of assets for consideration not exceeding (A) $2 million in any single transaction or series of related transactions or (B) $10 million in the aggregate across all such Acquisitions; provided that any Acquisition of assets for consideration exceeding (1) $5 million in any single transaction or series of related transactions or (2) $15 million in the aggregate across all such Acquisitions shall be subject to the Sole Discretion Standard;
(ixi) Dispose of or Encumber Encumber, in any material transaction or series of related transactions, any assets (it being agreed that the consent of the holders Company or any of its Controlled Subsidiaries that, individually or in the Class B Units shall not be required under this Section 6.03(a)(ix) with respect aggregate, are material to the Company and its Subsidiaries, other than any Disposition or Encumbrance (i) to a Controlled Subsidiary; (ii) required under applicable Law; (iii) in the ordinary course of business of spare parts or similar assets necessary used to conduct the operations of the subsidiaries Company’s Subsidiaries; (iv) pursuant to a Power Purchaser Buyout Event (provided that Class B Member Approval shall be required for any determination of fair market value of the Northern Colorado I Wind Project pursuant to the Northern Colorado I Power Purchase Agreement to the extent such fair market value is not otherwise determined by an independent appraiser in accordance with the Northern Colorado I Power Purchase Agreement); (v) in connection with Permitted Liens; or (vi) of assets in any transaction or series of related transactions for consideration not exceeding (A) $2 million in any single transaction or series of related transactions or (B) $10 million in the aggregate across all such Dispositions or Encumbrances; provided that any such Disposition or Encumbrance of assets for consideration exceeding (1) $5 million in any single transaction or series of related transactions or (2) $15 million in the aggregate across all such Dispositions or Encumbrances shall be subject to the Sole Discretion Standard; provided, further, that, (A) any Disposition of the equity interests of Pine Brooke Holdings held by the Company or its Subsidiaries shall require Class B Member Approval and (B) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(i) for any Disposal or Encumbrance of assets other than pursuant to Contractual Obligations; 953303.07-WILSR01A - MSW
(j) merge or consolidate with, or acquire all or substantially all of the assets of, another Person (other than a Subsidiary of the Company); provided that any such merger, consolidation, or acquisition in which the Company (or a Subsidiary of the Company) is required to pay or receives merger consideration having an aggregate fair market value exceeding $15 million shall be subject to the Sole Discretion Standard;
(xk) change any of its distribution policies policies, enter into any contract that prohibits or create restricts distributions, or requires the establishment of any cash reserves in excess of the cash reserves permitted in the calculation definition of Available Cash under this Agreement;
(xil) enter into a material, new line of business other than that set forth in Section 2.04;
(xii) enter into any material acquisition, divestiture, joint venture, or partnership;
(xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(bi) with respect to the following actionsCompany, having first obtained that contemplated by Section 2.04, or (ii) with respect to any Controlled Subsidiary, that contemplated by the written consent comparable provisions of the holders Organizational Documents of such Controlled Subsidiary;
(m) enter into, modify, or terminate any joint venture or partnership or otherwise acquire the equity interests of, any Person, other than (i) a majority wholly owned Subsidiary of the issued and outstanding Company; (ii) amendments to the limited liability company agreement of Desert Center Blythe to the extent that either (A) such amendment would not adversely affect the Class B UnitsMembers’ interest in the Company or indirect interest in Desert Center Blythe or (B) described on Schedule 6.03(m) hereto; and (iii) the repurchase, which consent shall not be unreasonably withheld, conditionedredemption, or delayed:other acquisition of the Tax Equity Interests of Pine Brooke Company, Golden Plains Company, or any other Tax Equity Entity to the extent permitted by Section 4.05(b); provided that any such joint venture or partnership or other acquisition of equity interests that, by its terms, requires the contribution or payment by the Company (or a Controlled Subsidiary of the Company) of an amount exceeding $15 million shall be subject to the Sole Discretion Standard;
(n) make or amend any Tax election or allocation with respect to the Company or its Controlled Subsidiaries in a way that would materially and adversely affect the Class B Units (including changing the Company’s Tax treatment as a partnership for U.S. federal Tax purposes);
(o) other than with respect to any Power Purchase Agreements (which are addressed in clause (p) below), and other than such amendments, modifications, or terminations of the Material Contracts described on Schedule 6.03(o) hereto, (i) enter into, amend, modify, or terminate any material contractMaterial Contract; (ii) suspend, agreementaccelerate, defer, or transaction otherwise modify the timing of, any material payments under any Material Contract; or (iii) amend, assign, waive, or relinquish any material rights (or security posted) under any Material Contract, in each case of clause (i) through clause (iii), other than in the ordinary course of business, and except for any action contemplated by clause (i) through clause (iii) that (A) (1) would not reduce the amount of Projected Available Cash during any calendar month, as compared to the amount of Projected Available Cash during such month if such action had not been taken; (2) would not otherwise be materially adverse to the Class B Members’ rights in respect of the Class B Units or other rights pursuant to this Agreement; (3) would not be reasonably expected to materially interfere with or adversely affect the performance by the Company or its Controlled Subsidiaries under any other then-existing Material Contract (including any Power Purchase Agreement); and (4) would not amend or modify the terms relating to credit support, including guarantees, or indemnification 953303.07-WILSR01A - MSW rights in any manner that is material and adverse to the Company or its Subsidiaries; or (B) extends the then-remaining term of such Material Contract but does not otherwise materially amend the provisions thereof; provided that any action contemplated by clauses (i) through (iii) that would reduce the amount of Projected Available Cash during any calendar month shall be subject to the Sole Discretion Standard;
(p) (i) enter into, amend, modify, suspend, or terminate any Power Purchase Agreement; or (ii) assign, release, waive, or relinquish any material rights or obligations of (or, unless replacement security is being provided satisfying the requirements of the applicable Power Purchase Agreement, any security posted by) any party to any Power Purchase Agreement, in each case of clause (i) and clause (ii), that would reasonably be expected to (A) result in a reduction of net revenues from sales of energy by the applicable Controlled Subsidiary pursuant to any Power Purchase Agreement then in effect for any measurement period thereunder (or otherwise reduce the amount of Projected Available Cash during any calendar month, as compared to the amount of Projected Available Cash during the applicable month if such action had not been taken); (B) reduce the then-remaining term of any Power Purchase Agreement then in effect; (C) materially interfere with or adversely affect the performance by the Company or its Controlled Subsidiaries under any other then-existing Material Contract (as defined in the Asset including any Power Purchase Agreement); (D) outside result in an amendment or modification of the normal course terms relating to liquidated damages, or credit support (including guarantees) (other than an increase or improvement thereof), or termination rights, indemnification rights and limits, fees, or pricing methodology (other than an improvement thereof); or (E) be materially adverse to the Class B Members’ rights in respect of businessthe Class B Units or other rights pursuant to this Agreement; provided that, after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(p) for any action or matter described in the foregoing clause (i) and clause (ii);
(q) enter into, amend, modify, extend, renew, fail to renew, or terminate any Affiliate Transaction, or waive any material rights under any Affiliate Transaction; provided, however, that Class B Member Approval shall not be required for (i) Capital Calls pursuant to Section 4.04; (ii) other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), ) and (BSection 4.05(b) loans in the aggregate principal amount of not more than $140 million permitted thereby (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses permitted therein); (iii) hedging arrangements in the ordinary course of business; (iv) any Affiliate Transaction in the ordinary course of business, on terms no less favorable to the Company or its subsidiaries incurred applicable Controlled Subsidiary than generally available in connection therewithan arm’s-length transaction and that are expected to result in payments less than (A) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million for any single transaction or series of related transactions or (B) $5 million in the aggregate in the case of across all such Affiliate Transactions (it being agreed except that (x) the no consent of the holders of the Class B Units shall not be is required under this Section 6.03(b)(ii) with respect to for any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of businesscourse, of spare parts or similar assets necessary used to conduct the operations of the subsidiaries Company’s Subsidiaries); (v) any Affiliate Transaction on terms no less favorable than generally available in an arm’s-length transaction and that (A) would not reduce the amount of Projected Available Cash during any calendar month, as compared to the Company and amount of Projected Available Cash during such month if such Affiliate Transaction had not been entered into; (yB) would not otherwise be materially adverse to the consent of the holders Class B Members’ rights in respect of the Class B Units or other rights pursuant to this Agreement; and (C) would not reasonably be expected to materially interfere with or adversely affect the performance by the Company or its Controlled Subsidiaries under any other then-existing Material Contract (including any Power Purchase Agreement); or (vi) any transaction expressly 953303.07-WILSR01A - MSW contemplated by any of the agreements listed on Schedule 6.03(q) hereto (excluding amendments, waivers, terminations, or renewals of such agreements, unless otherwise permitted under the foregoing clauses (i) through (v)); provided, further, that, (1) any Affiliate Transaction that is expected to reduce the amount of Projected Available Cash during any calendar month shall be subject to the Sole Discretion Standard; and (2) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(b)(ii6.03(q) for entry into, modification any action or termination of any Affiliate Transactions not in excess of $1 million matter other than as described in the aggregate if such Affiliate Transactions are not on arms-length termsimmediately foregoing clause (vi); or;
(iiir) initiate other than with respect to any litigation matters set forth on Schedule 6.03(r) hereto, commence, settle, terminate, or fail to pursue any material litigation, proceeding, governmental or regulatory action, or other dispute resolution proceeding Claim reasonably expected to involve the payment by the Company or its subsidiaries Controlled Subsidiaries of more than $1 million per instance individually or $5 million in the aggregate for all instances, aggregate; provided that any action contemplated by this Section 6.03(r) that is reasonably expected to involve the payment by the Company or approve the settlement its Controlled Subsidiaries of any Claim for more than $1 3 million per Claim individually or more than $5 15 million in the aggregate for all Claims or any Claim that materially restricts shall be subject to the business of the Company or any of its subsidiaries.Sole Discretion Standard; provided, further, tha
Appears in 1 contract
Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)
Major Decisions. The Company and its subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries not toto (and for the avoidance of doubt, Rosmar Holdings, LLC and Silver State South Solar, LLC shall be considered subsidiaries of the Company for so long as the Company directly or indirectly holds any equity interests therein), take any action (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) under this Section 6.03 (collectively, the “Major Decisions”) without:
(a) with respect to the following actions, without having first obtained the written consent of the holders of a majority of the issued and outstanding 953901.04-WILSR01A - MSW Class B Units Member Approval (which consent, except as may be expressly provided below in this Section 6.03, may be withheld by such holders in their sole discretion):
(ia) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary of the Company in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary of the Company;
(iib) alter or change the rights, preference, or privileges of the Class A Units or Class B Units in a manner that or, if and to the extent adversely affects affecting the Class B Members’ rights in the Class B Units, the Class A Units;
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) incur Indebtedness other than (i) loans pursuant to Section 4.05(a), in an aggregate amount outstanding at any one time of not more than $50 million, or (ii) in the ordinary course of business in an amount not in excess of $1 million (it being agreed that, after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness);
(e) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B UnitsCompany, except as expressly contemplated by this Agreement;
(vf) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, authorize or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtedness;
(vi) issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiaries;
(viig) change the entity form, dissolve, liquidate, or terminate the business of liquidate the Company or any of its subsidiariessubsidiaries (other than any liquidation or merger of any Blocker Entity undertaken to liquidate such Blocker Entity for U.S. federal income tax purposes), or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt);
(viiih) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) assets (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii6.03(h) with respect to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company);
(ixi) Dispose of or Encumber Encumber, in any transaction or series of related transactions, any asset that is material to the Company and its subsidiaries or any assets that, in the aggregate, are material to the Company and its subsidiaries (it being agreed that the consent of the holders of the (x) Class B Units Member Approval shall not be required under this Section 6.03(a)(ix6.03(i) with respect to any Disposition or Encumbrance in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the CompanyCompany and (y) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(i) for any 953901.04-WILSR01A - MSW Disposal or Encumbrance of assets other than those described in the immediately foregoing clause (x));
(xj) change any of its distribution policies policies, enter into any contract that prohibits or restricts distributions, or create any cash reserves in excess of the cash reserves permitted in the calculation first sentence of the definition of Available Cash under this Agreement;
(xik) enter into a material, new line of business other than that set forth in contemplated by Section 2.04;
(xiil) enter into into, modify, or terminate any material acquisition, divestitureacquisition or divestiture (including by merger or consolidation), joint venture, or partnershippartnership that is in excess of $1 million;
(xiiim) take, make or consent to the taking of, “bonus” depreciation under Code Section 168(k) amend any tax election or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(b) allocation with respect to the following actions, having first obtained Company or its subsidiaries in a way that would materially and adversely affect the written consent of the holders of a majority of the issued and outstanding Class B Units, which consent shall not be unreasonably withheld, conditioned, or delayed:Units (including changing the Company’s tax treatment as a partnership for U.S. federal tax purposes but excluding any election to treat any Blocker Entity as an entity disregarded from the Company for U.S. federal income tax purposes);
(in) enter into, amend, modify, or terminate any material contract, agreement, or transaction (including any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of business, which consent shall not be unreasonably withheld, conditioned, or delayed (it being agreed that withholding consent to any amendment with the effect of accelerating, deferring, or otherwise modifying the timing of payments under any power purchase agreement or other contract shall not be unreasonable);
(iio) commence, settle, terminate, or fail to pursue any material litigation, proceeding, governmental or regulatory action, or other Claim reasonably expected to involve the payment by the Company or its subsidiaries of more than $1 million individually or $5 million in the aggregate (other than any CITC Claim, which XPLR Member, on behalf of Silver State South Solar, LLC or its subsidiaries, shall be free to conduct, prosecute, settle, terminate and otherwise oversee, in its sole and absolute discretion), which consent shall not be unreasonably withheld, conditioned, or delayed;
(p) accelerate, delay, defer, or otherwise modify any payments, payables, receivables, or policies relating to any of the foregoing, other than in the ordinary course of business consistent with past practice and the policies of the Company and its subsidiaries;
(q) adopt or amend any hedging plan or enter into, modify or terminate any hedging arrangements outside any agreed hedging plan;
(r) other than (A) Capital Calls pursuant to Section 4.04 and (B) Member loans in an aggregate amount outstanding at any one time of not more than $60 50 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, renew, fail to renew, or terminate any Affiliate Transaction, Transaction that either (1) is not on arm’s-length terms and in the ordinary course of business or (2) is in excess of $1 million in the aggregate in the case of for all such Affiliate Transactions Transactions, which consent shall not 953901.04-WILSR01A - MSW be unreasonably withheld, conditioned, or delayed (it being agreed that (x) the consent of the holders of the Class B Units Member Approval shall not be required under this Section 6.03(b)(ii6.03(r) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on armsarm’s-length terms and in the ordinary course of business, of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company and its subsidiaries, (y) the consent of the holders of the Class B Units Member Approval shall be required under this Section 6.03(b)(ii6.03(r) for entry into, modification modification, or termination of any Affiliate Transactions not in excess of $1 million in the aggregate if such Affiliate Transactions are not on armsarm’s-length termsterms and (z) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(r) for entry into, modification or termination of any Affiliate Transactions other than those described in the immediately foregoing clause (x));
(s) after the occurrence of a Triggering Event, (i) adoption or modification of any operating or capital budget, or the taking of any actions inconsistent with any such budget (ii) incurring, committing to, modifying or terminating any expenditure or series of related expenditures not included in, or to the extent exceeding the amount included in, the applicable operating or capital budget then in effect and approved pursuant to Section 6.03(s)(i), outside the ordinary course of business in excess of $1 million and (iii) making any Capital Call; or
(iiit) initiate agree to take any litigation or other dispute resolution proceeding reasonably expected to involve the payment by the Company or its subsidiaries of more than $1 million per instance or $5 million in the aggregate for all instances, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim that materially restricts the business of the Company or any of its subsidiariesforegoing actions.
Appears in 1 contract
Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)
Major Decisions. The Company and its subsidiaries shall not, and Notwithstanding anything contained in this --------------- Agreement which may be construed to the Managing Member shall cause the Company and its subsidiaries not to, take any action under this Section 6.03 (collectivelycontrary, the “Major Decisions”) without:
(a) with respect to the following actionsvote, having first obtained the written consent or approval of the holders of Unitholders holding at least a majority of the issued and then outstanding Class B Units (in their sole discretion):
entitled to vote shall be required to take any of the following actions: (i) amend to authorize a merger, consolidation or waive any provisions reorganization involving the Company, whether or not the Company is the surviving entity, (ii) to authorize the sale of all or substantially all of the Delaware Certificateassets of the Company, (iii) to authorize or approve a change in the amount or character of the Unitholder's Capital Contributions, (iv) to authorize any Manager or Unitholder to do any act on behalf of the Company that contravenes this Agreement, (v) to amend the Company's Certificate of Formation or this Agreement, if the organizational documents of any subsidiary amendment would: (1) change the management of the Company in a manner that adversely affects from the Class B Members’ interest in the Company Managers to Unitholders or indirect interest in any subsidiary of the Company;
from Unitholders to Managers; (ii) alter or change the rights, preference, or privileges of the Class A Units or Class B Units in a manner that adversely affects the Class B Members’ rights in the Class B Units;
(iii2) increase or decrease the authorized aggregate number of Class A Units authorized Units; (3) effect an exchange or Class B reclassification of all or part of the Units;
; (iv4) provide for change the payment of any dividend or distribution ondesignation, rights, preferences, or the redemption limitations of all or repurchase of, any equity security part of the Company that is junior to the Class A Units and Class B Units unless there are no accrued Units; (5) change all or unpaid dividends on the Class A Units and Class B Units;
(v) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses part of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing Units into a different number of existing Indebtedness;
(vi) issue any new or additional Class A Units, Class B Units, units or other equity ownership interests of the Company same class; (6) create a new class of units having rights or any of its subsidiaries;
(vii) dissolve, liquidate, or terminate the business of the Company or any of its subsidiaries, or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt;
(viii) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii) preferences with respect to distribution or to dissolution that are prior, superior, or substantially equal to the Units; (7) increase the rights, preferences, or number of authorized units of any purchases class that, after giving effect to the amendment, have rights or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company);
(ix) Dispose of or Encumber any material assets (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(ix) preferences with respect to distributions or to dissolution that are prior, superior, or substantially equal to the Units; (8) create any Disposition preemptive rights for the benefit of Unitholder; (9) cancel or Encumbrance in the ordinary course of business of spare parts otherwise affect rights to distributions or similar assets necessary to conduct the operations dividends that have accumulated but not yet been declared on all or part of the subsidiaries Units; (10) change the manner of electing Managers described in Section 4.1(b); (11) change the provisions of Section 4.1(d) in any way; or (12) limit or deny the appraisal rights of the Company);
(x) change any of its distribution policies or create any cash reserves in excess of the cash reserves permitted in the calculation of Available Cash under this Agreement;
(xi) enter into a material, new line of business other than that set forth Unitholders described in Section 2.04;
(xii) enter into any material acquisition, divestiture, joint venture, or partnership;
(xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction3.23.
(b) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units, which consent shall not be unreasonably withheld, conditioned, or delayed:
(i) enter into, amend, modify, or terminate any material contract, agreement, or transaction (including any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of business;
(ii) other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million in the aggregate in the case of all such Affiliate Transactions (it being agreed that (x) the consent of the holders of the Class B Units shall not be required under this Section 6.03(b)(ii) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of business, of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company and (y) the consent of the holders of the Class B Units shall be required under this Section 6.03(b)(ii) for entry into, modification or termination of any Affiliate Transactions not in excess of $1 million in the aggregate if such Affiliate Transactions are not on arms-length terms); or
(iii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve the payment by the Company or its subsidiaries of more than $1 million per instance or $5 million in the aggregate for all instances, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim that materially restricts the business of the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Asset Contribution Agreement (Unified Financial Services Inc)
Major Decisions. The Except for any action taken (i) to comply with any Material Project Agreement, any Material Contract, or the Organizational Documents of any Tax Equity Entities (in each case, to the extent that the Company or its Subsidiary that is a party thereto does not have a discretionary right thereunder with respect to such action) (collectively, the “Contractual Obligations”) and (ii) in connection with the ▇▇▇▇▇▇ Return (if any), the Company and its subsidiaries Controlled Subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries Controlled Subsidiaries not to, take any action under (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) specified in this Section 6.03 (collectively, the “Major Decisions”) without:without having first obtained Class B Member Approval (which consent shall in each case, except as may be expressly provided below in this Section 6.03, be given or withheld in accordance with the applicable Decision Standard described below):
(a) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (in their sole discretion):
(i) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents Organizational Documents of any subsidiary of the Company Controlled Subsidiary in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary of the CompanyControlled Subsidiary;
(iib) alter or change the rights, preferencepreferences, or privileges of the Class A Units or Class B Units in a manner that or, if and to the extent adversely affects affecting the Class B Members’ rights in the Class B Units;, the Class A Units; 868227.25C-WILSR01A - MSW
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) provide for the payment of any dividend or distribution onincur Indebtedness other than (i) Emergency Loans pursuant to Section 4.05(a), or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B Units;
(v) except (A) loans in an aggregate principal amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and 50 million; (Bii) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) Tax Equity Repurchase Loans pursuant to Section 4.05(b), incur Indebtednessin an aggregate principal amount outstanding at any one time not exceeding $50 million; and (iii) Indebtedness (other than pursuant to clauses (i) and (ii)) in an aggregate principal amount outstanding at any one time not exceeding $3 million; provided that the incurrence of any Indebtedness (other than pursuant to clauses (i) through (iii) and Contractual Obligations) in an aggregate principal amount outstanding at any time exceeding $15 million shall be subject to the Sole Discretion Standard; provided, including further, that, after the refinancing occurrence of existing Indebtednessa Triggering Event, Class B Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness (other than pursuant to Contractual Obligations);
(vie) (i) pay or declare any dividend or distribution on any equity interest of the Company or any of its Controlled Subsidiaries, except (A) as expressly contemplated by this Agreement or by the Organizational Documents of such Controlled Subsidiaries and (B) dividends and distributions declared and paid by the Company’s Subsidiaries to the Company or to another Subsidiary of the Company; or (ii) redeem or repurchase any equity interests of the Company or any of its Controlled Subsidiaries, other than the redemption, repurchase, or other acquisition of the Tax Equity Interests of Golden Plains Company, or any other Tax Equity Entity pursuant to the applicable Organizational Documents;
(f) authorize or issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiariesControlled Subsidiaries (excluding (i) the issuance of any Tax Equity Interests contemplated by the Initial Closing Portfolio Project Model; (ii) the Company’s issuance of Class A Units and Class B Units to NEP Member pursuant to Section 4.03(a); and (iii) the Initial Investor’s purchase of the Initial Aggregate Class B Purchased Units and Additional Aggregate Class B Purchased Units from the Company in accordance with Section 4.03(b) and Section 4.03(c), respectively);
(viig) dissolve, liquidate, or terminate the business of convert the Company or any of its subsidiariesSubsidiaries to an entity other than a limited liability company or other limited liability entity, dissolve, or take liquidate the Company or any voluntary action to become Bankrupt of its Controlled Subsidiaries (including any actions under Article 12 hereof) or agree take any voluntary action to cause the Company or any of its Controlled Subsidiaries to become Bankrupt;
(viiih) purchase, rent, license, exchange, or otherwise acquire (each, an “Acquisition”) any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) other than (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viiii) with respect to any purchases or acquisitions Acquisition in the ordinary course of business of spare parts or similar assets necessary to conduct used in connection with the operations of the subsidiaries Company’s Subsidiaries; (ii) the redemption, repurchase, or other acquisition of Tax Equity Interests of Pine Brooke Company, Golden Plains Company, or any other Tax Equity Entity to the Companyextent permitted by Section 4.05(b); and (iii) any Acquisition in any transaction or series of related transactions (other than those referred to in clauses (i) and (ii)) of assets for consideration not exceeding (A) $2 million in any single transaction or series of related transactions or (B) $10 million in the aggregate across all such Acquisitions; provided that any Acquisition of assets for consideration exceeding (1) $5 million in any single transaction or series of related transactions or (2) $15 million in the aggregate across all such Acquisitions shall be subject to the Sole Discretion Standard;
(ixi) Dispose of or Encumber Encumber, in any material transaction or series of related transactions, any assets (it being agreed that the consent of the holders Company or any of its Controlled Subsidiaries that, individually or in the Class B Units shall not be required under this Section 6.03(a)(ix) with respect aggregate, are material to the Company and its Subsidiaries, other than any Disposition or Encumbrance (i) to a 868227.25C-WILSR01A - MSW Controlled Subsidiary; (ii) required under applicable Law; (iii) in the ordinary course of business of spare parts or similar assets necessary used to conduct the operations of the subsidiaries Company’s Subsidiaries; (iv) pursuant to a Power Purchaser Buyout Event (provided that Class B Member Approval shall be required for any determination of fair market value of the Northern Colorado I Wind Project pursuant to the Northern Colorado I Power Purchase Agreement to the extent such fair market value is not otherwise determined by an independent appraiser in accordance with the Northern Colorado I Power Purchase Agreement); (v) in connection with Permitted Liens; or (vi) of assets in any transaction or series of related transactions for consideration not exceeding (A) $2 million in any single transaction or series of related transactions or (B) $10 million in the aggregate across all such Dispositions or Encumbrances; provided that any such Disposition or Encumbrance of assets for consideration exceeding (1) $5 million in any single transaction or series of related transactions or (2) $15 million in the aggregate across all such Dispositions or Encumbrances shall be subject to the Sole Discretion Standard; provided, further, that, (A) any Disposition of the equity interests of Pine Brooke Holdings held by the Company or its Subsidiaries shall require Class B Member Approval and (B) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(i) for any Disposal or Encumbrance of assets other than pursuant to Contractual Obligations;
(j) merge or consolidate with, or acquire all or substantially all of the assets of, another Person (other than a Subsidiary of the Company); provided that any such merger, consolidation, or acquisition in which the Company (or a Subsidiary of the Company) is required to pay or receives merger consideration having an aggregate fair market value exceeding $15 million shall be subject to the Sole Discretion Standard;
(xk) change any of its distribution policies policies, enter into any contract that prohibits or create restricts distributions, or requires the establishment of any cash reserves in excess of the cash reserves permitted in the calculation definition of Available Cash under this Agreement;
(xil) enter into a material, new line of business other than that set forth in Section 2.04;
(xii) enter into any material acquisition, divestiture, joint venture, or partnership;
(xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(bi) with respect to the following actionsCompany, having first obtained that contemplated by Section 2.04, or (ii) with respect to any Controlled Subsidiary, that contemplated by the written consent comparable provisions of the holders Organizational Documents of such Controlled Subsidiary;
(m) enter into, modify, or terminate any joint venture or partnership or otherwise acquire the equity interests of, any Person, other than (i) a majority wholly owned Subsidiary of the issued and outstanding Company; (ii) amendments to the limited liability company agreement of Desert Center Blythe to the extent that either (A) such amendment would not adversely affect the Class B UnitsMembers’ interest in the Company or indirect interest in Desert Center Blythe or (B) described on Schedule 6.03(m) hereto; and (iii) the repurchase, which consent shall not be unreasonably withheld, conditionedredemption, or delayed:other acquisition of the Tax Equity Interests of Pine Brooke Company, Golden Plains Company, or any other Tax Equity Entity to the extent permitted by Section 4.05(b); provided that any such joint venture or partnership or other acquisition of equity interests that, by its terms, requires the contribution or payment by the Company (or a Controlled Subsidiary of the Company) of an amount exceeding $15 million shall be subject to the Sole Discretion Standard;
(n) make or amend any Tax election or allocation with respect to the Company or its Controlled Subsidiaries in a way that would materially and adversely affect the Class B Units (including changing the Company’s Tax treatment as a partnership for U.S. federal Tax purposes);
(o) other than with respect to any Power Purchase Agreements (which are addressed in clause (p) below), and other than such amendments, modifications, or terminations of the Material Contracts described on Schedule 6.03(o) hereto, (i) enter into, amend, modify, or terminate any material contractMaterial Contract; (ii) suspend, agreementaccelerate, defer, or transaction otherwise modify the timing of, any material payments under any Material Contract; or (iii) amend, assign, waive, or relinquish any material rights 868227.25C-WILSR01A - MSW (or security posted) under any Material Contract, in each case of clause (i) through clause (iii), other than in the ordinary course of business, and except for any action contemplated by clause (i) through clause (iii) that (A) (1) would not reduce the amount of Projected Available Cash during any calendar month, as compared to the amount of Projected Available Cash during such month if such action had not been taken; (2) would not otherwise be materially adverse to the Class B Members’ rights in respect of the Class B Units or other rights pursuant to this Agreement; (3) would not be reasonably expected to materially interfere with or adversely affect the performance by the Company or its Controlled Subsidiaries under any other then-existing Material Contract (including any Power Purchase Agreement); and (4) would not amend or modify the terms relating to credit support, including guarantees, or indemnification rights in any manner that is material and adverse to the Company or its Subsidiaries; or (B) extends the then-remaining term of such Material Contract but does not otherwise materially amend the provisions thereof; provided that any action contemplated by clauses (i) through (iii) that would reduce the amount of Projected Available Cash during any calendar month shall be subject to the Sole Discretion Standard;
(p) (i) enter into, amend, modify, suspend, or terminate any Power Purchase Agreement; or (ii) assign, release, waive, or relinquish any material rights or obligations of (or, unless replacement security is being provided satisfying the requirements of the applicable Power Purchase Agreement, any security posted by) any party to any Power Purchase Agreement, in each case of clause (i) and clause (ii), that would reasonably be expected to (A) result in a reduction of net revenues from sales of energy by the applicable Controlled Subsidiary pursuant to any Power Purchase Agreement then in effect for any measurement period thereunder (or otherwise reduce the amount of Projected Available Cash during any calendar month, as compared to the amount of Projected Available Cash during the applicable month if such action had not been taken); (B) reduce the then-remaining term of any Power Purchase Agreement then in effect; (C) materially interfere with or adversely affect the performance by the Company or its Controlled Subsidiaries under any other then-existing Material Contract (as defined in the Asset including any Power Purchase Agreement); (D) outside result in an amendment or modification of the normal course terms relating to liquidated damages, or credit support (including guarantees) (other than an increase or improvement thereof), or termination rights, indemnification rights and limits, fees, or pricing methodology (other than an improvement thereof); or (E) be materially adverse to the Class B Members’ rights in respect of businessthe Class B Units or other rights pursuant to this Agreement; provided that, after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(p) for any action or matter described in the foregoing clause (i) and clause (ii);
(q) enter into, amend, modify, extend, renew, fail to renew, or terminate any Affiliate Transaction, or waive any material rights under any Affiliate Transaction; provided, however, that Class B Member Approval shall not be required for (i) Capital Calls pursuant to Section 4.04; (ii) other than (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), ) and (BSection 4.05(b) loans in the aggregate principal amount of not more than $140 million permitted thereby (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses permitted therein); (iii) hedging arrangements in the ordinary course of business; (iv) any Affiliate Transaction in the ordinary course of business, on terms no less favorable to the Company or its subsidiaries incurred applicable Controlled Subsidiary than generally available in connection therewithan arm’s-length transaction and that are expected to result in payments less than (A) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million for any single transaction or series of related transactions or (B) $5 million in the aggregate in the case of across all such Affiliate Transactions (it being agreed except that (x) the no consent of the holders of the Class B Units shall not be is required under this Section 6.03(b)(ii) with respect to for any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on arms-length terms and in the ordinary course of businesscourse, of spare parts or similar assets necessary used to conduct the operations of the subsidiaries Company’s Subsidiaries); (v) any Affiliate Transaction on terms no less favorable than generally available in an arm’s-length transaction and that (A) would not reduce the amount of Projected Available Cash during any calendar month, as compared to the Company and amount of Projected Available Cash during such month if such Affiliate Transaction had not been entered into; (yB) would not otherwise be materially adverse to the consent of the holders Class B Members’ rights 868227.25C-WILSR01A - MSW in respect of the Class B Units or other rights pursuant to this Agreement; and (C) would not reasonably be expected to materially interfere with or adversely affect the performance by the Company or its Controlled Subsidiaries under any other then-existing Material Contract (including any Power Purchase Agreement); or (vi) any transaction expressly contemplated by any of the agreements listed on Schedule 6.03(q) hereto (excluding amendments, waivers, terminations, or renewals of such agreements, unless otherwise permitted under the foregoing clauses (i) through (v)); provided, further, that, (1) any Affiliate Transaction that is expected to reduce the amount of Projected Available Cash during any calendar month shall be subject to the Sole Discretion Standard; and (2) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(b)(ii6.03(q) for entry into, modification any action or termination of any Affiliate Transactions not in excess of $1 million matter other than as described in the aggregate if such Affiliate Transactions are not on arms-length termsimmediately foregoing clause (vi); or;
(iiir) initiate other than with respect to any litigation matters set forth on Schedule 6.03(r) hereto, commence, settle, terminate, or fail to pursue any material litigation, proceeding, governmental or regulatory action, or other dispute resolution proceeding Claim reasonably expected to involve the payment by the Company or its subsidiaries Controlled Subsidiaries of more than $1 million per instance individually or $5 million in the aggregate for all instances, aggregate; provided that any action contemplated by this Section 6.03(r) that is reasonably expected to involve the payment by the Company or approve the settlement its Controlled Subsidiaries of any Claim for more than $1 3 million per Claim individually or more than $5 15 million in the aggregate for all Claims or any Claim that materially restricts shall be subject to the business of the Company or any of its subsidiaries.Sole Discretion Standard; provided, further,
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Major Decisions. The Company and its subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries not to, take any action (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) under this Section 6.03 (collectively, the “Major Decisions”) without:
without having first obtained Class B Member Approval (which consent, except as may be expressly provided below in this Section 6.03, may be withheld by such holders in their sole discretion); provided, however, that if the Managing Member is removed by the Class B Member Representative and a successor Managing Member is designated, each 953941.04-WILSR01A - MSW pursuant to and in accordance with Section 6.01(b), then (y) so long as the Managing Member was not removed pursuant to Section 6.01(b) as a result of a Major XPLR Default, each Major Decision shall require the approval of XPLR Member (which consent, except as may be expressly provided below in this Section 6.03, may be withheld by XPLR Member in its sole discretion), except that the approval of XPLR Member shall not be required for any Major Decision set forth in clauses (d), (f) (unless the applicable action would disproportionately adversely affect any Class A Member’s rights under this Agreement (as compared to other Members)), (i) (but only with respect to Encumbrances (and Dispositions upon foreclosure thereon) in connection with Indebtedness), (j) (unless the applicable action would disproportionately adversely affect any Class A Member’s rights under this Agreement (as compared to other Members)), or (k) (but only with respect to Expansions) of this Section 6.03; provided that, from and after the tenth (10th) anniversary of the Effective Date, and solely in connection with any Liquidity Event, the approval of XPLR Member shall not be required for any Major Decision set forth in clause (a) (other than amendments or waivers that disproportionately adversely affect any Class A Member’s rights under this Agreement (as compared to other Members)) or clauses (e), (i), or (l) of this Section 6.03) and (z) if the Managing Member was removed pursuant to Section 6.01(b) as a result of a Major XPLR Default, then the approval of XPLR Member shall not be required for any Major Decision, other than the Major Decisions set forth in clause (a) (but only those amendments or waivers that disproportionately adversely affect any Class A Member’s rights under this Agreement (as compared to other Members)), clauses (b), (c), (f) (but only if the applicable action would disproportionately adversely affect any Class A Member’s rights under this Agreement (as compared to other Members)), (e), (g), (k) (but only with respect to the following actionsentrance into a new line of business), having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units (m), or clause (q) (in their sole discretioneach case, which consent may not be unreasonably withheld, conditioned, or delayed):
(ia) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary of the Company in a manner that adversely affects the Class B Members’ interest or Class A Members’ interest in the Company or indirect interest in any subsidiary of the Company;
(iib) alter or change the rights, preference, or privileges of the Class A B Units or Class B Units in a manner that adversely affects the Class B Members’ rights in the Class B A Units;
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) incur Indebtedness other than (i) the ▇▇▇▇▇ Permitted Indebtedness, (ii) loans pursuant to Section 4.05, and (iii) any refinancing, restatement, amendment, supplement, extension, restructuring, or replacement financing for the Tranche A Facility, Tranche B Facility, or Tranche C Facility prior to the maturity of the Term Loan Agreement, in each case, having an aggregate principal balance as of the date thereof in an amount not greater than the outstanding and unpaid principal on the balance of the Tranche A Facility, Tranche B Facility, or Tranche C Facility, as applicable, as of the date thereof; provided that the terms of any such refinancing, restatement, amendment, supplement, extension, restructuring, or replacement financing shall require the prior written approval of the Class B Members (which consent shall not be 953941.04-WILSR01A - MSW unreasonably withheld, conditioned, or delayed (it being understood and agreed that such consent shall not be deemed unreasonably withheld if the terms of any such refinancing, restatement, amendment, supplement, extension, restructuring, or replacement financing (A) are not consistent with, and not as favorable to the Company and its subsidiaries as, the provisions of the Term Loan Agreement or (B) contemplates or otherwise permits the extraordinary distribution of any proceeds to any of the Members, or any of their respective Affiliates));
(e) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B UnitsCompany, except as expressly contemplated by this Agreement;
(vf) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, authorize or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtedness;
(vi) issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiaries;
(viig) change the entity form, dissolve, liquidate, or terminate the business of liquidate the Company or any of its subsidiaries, or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt;
(viiih) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii) with respect to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company);
(ixi) Dispose of or Encumber in any transaction or series of related transactions, (i) any asset that is material to the Company and its subsidiaries or any assets (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(ix) with respect to any Disposition or Encumbrance that, in the ordinary course aggregate, are material to the Company and its subsidiaries, other than Encumbrances incurred on the Effective Date in connection with any ▇▇▇▇▇ Permitted Indebtedness or (ii) any equity interests in the Company or any of business of spare parts its subsidiaries, other than Dispositions expressly permitted by Article 7, or similar assets necessary to conduct the operations of the subsidiaries of the Company)otherwise take any action that would result in Sale Proceeds;
(xj) change any of its distribution policies policies, enter into any contract that prohibits or restricts distributions, or create any cash reserves in excess of the cash reserves permitted in the calculation first sentence of the definition of Available Cash under this Agreement;
(xik) enter into a material, new line of business or pursue any Expansion (other than that set forth in Section 2.04the Expansion Project);
(xii) enter into any material acquisition, divestiture, joint venture, or partnership;
(xiii) take, or consent to the taking of, “bonus” depreciation under Code Section 168(k) or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(b) with respect to the following actions, having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units, which consent shall not be unreasonably withheld, conditioned, or delayed:
(il) enter into, amend, modify, or terminate terminate, waive any material contract, agreementprovision of, or transaction exercise any rights or remedies under, (i) any contract or any acquisition or divestiture (including by merger or consolidation), joint venture, or partnership agreement that is in excess of one million U.S. dollars ($1,000,000) or (ii) any Material Contract (as defined in of the Asset Purchase Agreement)) outside the normal course of business▇▇▇▇▇▇▇▇ Agreements;
(iim) other than (A) loans in aggregate amount outstanding at make or amend any one time of not more than $60 million pursuant tax election or allocation with respect to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), enter into, modify, or terminate any Affiliate Transaction, in excess of $1 million in the aggregate in the case of all such Affiliate Transactions (it being agreed a way that (x) the consent of the holders of would materially and adversely affect the Class B Units shall not be required under this Section 6.03(b)(iior Class A Units (including changing the Company’s tax treatment as a partnership for U.S. federal tax purposes);
(n) with respect to any Affiliate Transaction involving the acquisitioncommence, Dispositionsettle, terminate, or Encumbrancefail to pursue any litigation, on arms-length terms and in the ordinary course of businessproceeding, of spare parts governmental or similar assets necessary to conduct the operations of the subsidiaries of the Company and (y) the consent of the holders of the Class B Units shall be required under this Section 6.03(b)(ii) for entry intoregulatory action, modification or termination of any Affiliate Transactions not in excess of $1 million in the aggregate if such Affiliate Transactions are not on arms-length terms); or
(iii) initiate any litigation or other Claim or dispute resolution proceeding reasonably expected to involve the payment by the Company or its subsidiaries of more than one million U.S. 953941.04-WILSR01A - MSW dollars ($1 1,000,000) individually or five million per instance or U.S. dollars ($5 million 5,000,000) in the aggregate for all instancesaggregate, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or settle any Claim that materially restricts the business of the Company or any of its subsidiariessubsidiaries (which consent shall not be unreasonably withheld, conditioned, or delayed);
(o) accelerate, delay, defer, or otherwise modify any payments, payables, receivables, or policies relating to any of the foregoing, other than in the ordinary course of business consistent with past practice and the policies of the Company and its subsidiaries (which consent shall not be unreasonably withheld, conditioned, or delayed);
(p) adopt or amend any hedging plan or enter into, modify, or terminate any hedging arrangements outside any agreed hedging plan (which consent shall not be unreasonably withheld, conditioned, or delayed);
(q) other than (i) Capital Calls pursuant to Section 4.04(a) in respect of a Transco Capital Call, (ii) Capital Calls pursuant to Section 4.04(b) or Section 4.04(c) and (iii) Member loans pursuant to Section 4.05, enter into, amend, modify, renew, fail to renew, terminate, waive any provision of, or exercise any rights or remedies under, any Affiliate Transaction that is not on arm’s length terms and in the ordinary course of business (which consent shall not be unreasonably withheld, conditioned, or delayed); or
(r) agree to take any of the foregoing actions.
Appears in 1 contract
Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)
Major Decisions. The Except for those transactions approved pursuant to Section 4.03(c) or as provided in the last sentence of this Section 6.03, the Company and its subsidiaries Subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries Subsidiaries not to, take any action (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) under this Section 6.03 (collectively, the “Major Decisions”) without:
(a) with respect to the following actions, without having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units Member Approval (which consent, except as may be expressly provided below in this Section 6.03, may be withheld by such holders in their sole discretion):
(ia) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary Subsidiary of the Company in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary Subsidiary of the Company;
(iib) alter or change the rights, preference, or privileges of the Class A Units or Class B Units in a manner that or, if and to the extent adversely affects affecting the Class B Members’ rights in the Class B Units, the Class A Units;
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) incur Indebtedness, or permit any amendment, modification or waiver of any right under any agreement pertaining to such Indebtedness, in each case, other than (i) loans pursuant to Section 4.05(a) or Section 4.05(b) in an aggregate amount outstanding at any one time of not more than $50 million, (ii) the NMP LP Loan, or (iii) in the ordinary course of business in an amount not in excess of $5 million (it being agreed that, after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness);
(e) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B UnitsCompany, except as expressly contemplated by this Agreement;
(vf) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, authorize or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtedness;
(vi) issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiariesSubsidiaries;
(viig) change the entity form, dissolve, liquidate, or terminate the business of liquidate the Company or any of its subsidiaries, Subsidiaries or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt);
(viiih) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) 4.06 (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii6.03(h) with respect to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries Subsidiaries of the Company);
(ixi) other than any Encumbrance on the assets of NMPP securing the NMP LP Loan, Dispose of or Encumber Encumber, in any transaction or series of related transactions, any asset that is material to the Company and its Subsidiaries or any assets that, in the aggregate, are material to the Company and its Subsidiaries (it being agreed that the consent of the holders of the (x) Class B Units Member Approval shall not be required under this Section 6.03(a)(ix6.03(i) with respect to any Disposition or Encumbrance in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries Subsidiaries of the CompanyCompany and (y) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(i) for any Disposal or Encumbrance of assets other than those described in the immediately foregoing clause (x));
(xj) change any of its distribution policies policies, enter into any contract that prohibits or restricts distributions, or create any cash reserves in excess of the cash reserves permitted in the calculation first sentence of the definition of Available Cash under this Agreement;
(xik) enter into a material, new line of business other than that set forth in contemplated by Section 2.04;
(xiil) other than (i) associated with an expansion project of any Subsidiary of the Company funded in accordance with Section 4.06, or (ii) with respect to the disposition of Excluded Monument Assets, enter into into, modify, or terminate any material acquisition, divestitureacquisition or divestiture (including by merger or consolidation), joint venture, or partnershippartnership that is in excess of $1 million;
(xiiim) take, make or consent to the taking of, “bonus” depreciation under Code Section 168(k) amend any tax election or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(b) allocation with respect to the following actions, having first obtained Company or its Subsidiaries in a way that would adversely affect the written consent of the holders of a majority of the issued and outstanding Class B UnitsUnits (including changing the Company’s tax treatment as a partnership for U.S. federal tax purposes), which approval shall not be unreasonably withheld, conditioned or delayed; provided, that, for the avoidance of doubt, this Section 6.03(m) does not apply to matters that are reserved to the Partnership Representative in Section 8.03;
(n) enter into, materially amend or modify, or terminate any Material Contract outside the normal course of business, which consent shall not be unreasonably withheld, conditioned or delayed (it being agreed that withholding consent to any amendment with the effect of accelerating, deferring, or otherwise modifying the timing of payments under any Material Contract shall not be unreasonable); provided that (i) the Company and its Subsidiaries shall be permitted to enter into Permitted Material Contracts and (ii) if a ▇▇▇▇▇▇▇ Default has occurred and is continuing, EFM may amend, modify, or terminate the ▇▇▇▇▇▇▇ Transportation Agreements, in case of either clause (i) or (ii), without Class B Member Approval;
(o) commence, settle, terminate, or fail to pursue any material litigation, proceeding, governmental or regulatory action, or other Claim reasonably expected to involve the payment by the Company or its Subsidiaries of more than $1 million individually or $5 million in the aggregate, which consent shall not be unreasonably withheld, conditioned, or delayed:; provided, however, that Class B Member Approval shall not be required in connection with commencing, settling, terminating or failing to pursue any litigation, proceeding or other Claim by the Company or EFM for the recovery of payments under the ▇▇▇▇▇▇▇ Transportation Agreements in connection with a ▇▇▇▇▇▇▇ Default;
(ip) other than with respect to a Member loan under Section 4.05(a), accelerate, delay, defer, or otherwise modify any payments, payables, receivables, or policies relating to any of the foregoing, other than in the ordinary course of business consistent with past practice and the policies of the Company and its Subsidiaries;
(q) adopt or amend any hedging plan or enter into, amend, modify, modify or terminate any material contract, agreement, or transaction (including hedging arrangements outside any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of businessagreed hedging plan;
(iir) consummate or take any material steps to facilitate (A) the acquisition, directly or indirectly (including by merger), of fifty percent (50%) or more of the voting equity of the Company, (B) an initial public offering of equity securities of the Company or any of its Subsidiaries pursuant to an effective registration statement under the Securities Act, or (C) a consolidation, conversion, merger or other business combination involving the Company or any of its Subsidiaries, unless, contemporaneously with the consummation of such transaction described in clause (A) or (B), all of the outstanding Class B Units are purchased pursuant to one or more exercises of the Call Option, NEP Change of Control Option, or Class B COC Option in accordance with the provisions of Section 7.02, Section 7.03, or Section 7.04, as applicable;
(s) other than (A) Capital Calls pursuant to Section 4.04, (B) Member loans in an aggregate amount outstanding at any one time of not more than $60 50 million pursuant to Section 4.05(a), and (BC) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), (D) entry into the NEP Affiliate Note (provided that any modification or termination thereof shall require Class B Member Approval), or (E) modifications or renewals of the Affiliate Transactions set forth on part (i) of Schedule E of the Class B Contribution Agreement to the extent such modifications or renewals are on arm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and do not adversely affect the Company or its Subsidiaries or reduce anticipated Available Cash on a pro forma basis, enter into, amend, modify, extend, renew, fail to renew, terminate, make an election with respect to, provide notice under, or terminate consent to any action with respect to any Affiliate TransactionTransaction that either (1) is not on arm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and in the ordinary course of business or (2) (x) in the case of any Affiliate Transaction entered into by the Company or its Subsidiaries for the provision of natural gas transportation or similar revenue-generating services provided by the Company or its applicable Subsidiary, involves consideration or revenues reasonably anticipated to be received by the Company and its Subsidiaries in respect of such Affiliate Transaction in excess of $1 10,000,000 during any 12-month period during the term of Affiliate Transaction or in excess of $25,000,000 in the aggregate over the term of such Affiliate Transaction, or does not meet the requirements of clause (b) or (c) of the definition of “Permitted Material Contract”, or (y) in the case of any Affiliate Transactions that are not for the provision of natural gas transportation or similar revenue-generating services provided by the Company or its applicable Subsidiary, involves consideration in excess of $5 million in the aggregate in the case of for all such Affiliate Transactions Transactions, which consent shall not be unreasonably withheld, conditioned or delayed (it being agreed that (xi) the consent of the holders of the Class B Units Member Approval shall not be required under this Section 6.03(b)(ii6.03(s) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on armsarm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and in the ordinary course of business, of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company and its Subsidiaries, (yii) the consent of the holders of the Class B Units Member Approval shall be required under this Section 6.03(b)(ii6.03(s) for entry into, modification amendment, modification, extension, renewal, failure to renew, termination, election, notice or termination consent of or under any Affiliate Transactions not in excess of $1 million the dollar thresholds set forth in the aggregate clause (2) if such Affiliate Transactions are not on armsarm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and (iii) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(s) for entry into, amendment, modification, extension, renewal, failure to renew, termination, election, notice or consent of or under any Affiliate Transactions other than those described in the immediately foregoing clause (i));
(t) after the occurrence of a Triggering Event, (i) adoption or modification of any operating or capital budget, or the taking of any actions inconsistent with any such budget (ii) incurring, committing to, modifying or terminating any expenditure or series of related expenditures not included in, or to the extent exceeding the amount included in, the applicable operating or capital budget then in effect and approved pursuant to Section 6.03(t)(i), outside the ordinary course of business in excess of $1 million and (iii) making any Capital Call; or
(iiiu) initiate agree to take any litigation of the foregoing actions. For the avoidance of doubt, in no event shall Class B Member Approval be required with respect to action taken by a Separate Subsidiary, or other dispute resolution proceeding reasonably expected to involve the payment by the Company solely to the extent on behalf of a Separate Subsidiary; provided that (i) the foregoing shall remain subject to Section 6.03(s) and (ii) the Company shall not be permitted to use any cash or its subsidiaries of more than $1 million per instance Cash Equivalents generated or $5 million in received by the aggregate for all instances, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim that materially restricts the business Subsidiaries of the Company that are not Separate Subsidiaries (or generated or received by the Company on behalf of any such Subsidiary) for the payment of its subsidiariesany costs or expenditures owing by or at any Separate Subsidiary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Major Decisions. The Except for those transactions approved pursuant to Section 4.03(c) or as provided in the last sentence of this Section 6.03, the Company and its subsidiaries Subsidiaries shall not, and the Managing Member shall cause the Company and its subsidiaries Subsidiaries not to, take any action (including by the exercise or non-exercise of the Company’s direct or indirect approval rights in any other entity in which the Company directly or indirectly owns an interest) under this Section 6.03 (collectively, the “Major Decisions”) without:
(a) with respect to the following actions, without having first obtained the written consent of the holders of a majority of the issued and outstanding Class B Units Member Approval (which consent, except as may be expressly provided below in this Section 6.03, may be withheld by such holders in their sole discretion):
(ia) amend or waive any provisions of the Delaware Certificate, this Agreement, or the organizational documents of any subsidiary Subsidiary of the Company in a manner that adversely affects the Class B Members’ interest in the Company or indirect interest in any subsidiary Subsidiary of the Company;
(iib) alter or change the rights, preference, or privileges of the Class A Units or Class B Units in a manner that or, if and to the extent adversely affects affecting the Class B Members’ rights in the Class B Units, the Class A Units;
(iiic) increase or decrease the authorized or issued number of Class A Units or Class B Units;
(ivd) incur Indebtedness, or permit any amendment, modification or waiver of any right under any agreement pertaining to such Indebtedness, in each case, other than (i) loans pursuant to Section 4.05(a) or Section 4.05(b) in an aggregate amount outstanding at any one time of not more than $50 million, (ii) the NMP LP Loan, or (iii) in the ordinary course of business in an amount not in excess of $5 million (it being agreed that, after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(d) for the incurrence of any Indebtedness);
(e) provide for the payment of any dividend or distribution on, or the redemption or repurchase of, any equity security of the Company that is junior to the Class A Units and Class B Units unless there are no accrued or unpaid dividends on the Class A Units and Class B UnitsCompany, except as expressly contemplated by this Agreement;
(vf) except (A) loans in aggregate amount outstanding at any one time of not more than $60 million pursuant to Section 4.05(a), and (B) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, authorize or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), incur Indebtedness, including the refinancing of existing Indebtedness;
(vi) issue any new or additional Class A Units, Class B Units, or other equity interests of the Company or any of its subsidiariesSubsidiaries;
(viig) change the entity form, dissolve, liquidate, or terminate the business of liquidate the Company or any of its subsidiaries, Subsidiaries or take any voluntary action to become Bankrupt (including any actions under Article 12 hereof) or agree to become Bankrupt);
(viiih) purchase, rent, license, exchange, or otherwise acquire any material assets, including any tax equity interests in any project operated by a subsidiary of the Company, except to the extent permitted under Section 4.05(b) 4.06 (it being agreed that the consent of the holders of the Class B Units shall not be required under this Section 6.03(a)(viii6.03(h) with respect to any purchases or acquisitions in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries Subsidiaries of the Company);
(ixi) other than any Encumbrance on the assets of NMPP securing the NMP LP Loan, Dispose of or Encumber Encumber, in any transaction or series of related transactions, any asset that is material to the Company and its Subsidiaries or any assets that, in the aggregate, are material to the Company and its Subsidiaries (it being agreed that the consent of the holders of the (x) Class B Units Member Approval shall not be required under this Section 6.03(a)(ix6.03(i) with respect to any Disposition or Encumbrance in the ordinary course of business of spare parts or similar assets necessary to conduct the operations of the subsidiaries Subsidiaries of the CompanyCompany and (y) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(i) for any Disposal or Encumbrance of assets other than those described in the immediately foregoing clause (x));
(xj) change any of its distribution policies policies, enter into any contract that prohibits or restricts distributions, or create any cash reserves in excess of the cash reserves permitted in the calculation first sentence of the definition of Available Cash under this Agreement;
(xik) enter into a material, new line of business other than that set forth in contemplated by Section 2.04;
(xiil) other than (i) associated with an expansion project of any Subsidiary of the Company funded in accordance with Section 4.06, or (ii) with respect to the disposition of Excluded Monument Assets, enter into into, modify, or terminate any material acquisition, divestitureacquisition or divestiture (including by merger or consolidation), joint venture, or partnershippartnership that is in excess of $1 million;
(xiiim) take, make or consent to the taking of, “bonus” depreciation under Code Section 168(k) amend any tax election or any corresponding provision of the Code; or
(xiv) elect to cause any Membership Interest or other equity interest held by a Class B Member to constitute a “security” within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
(b) allocation with respect to the following actions, having first obtained Company or its Subsidiaries in a way that would adversely affect the written consent of the holders of a majority of the issued and outstanding Class B UnitsUnits (including changing the Company’s tax treatment as a partnership for U.S. federal tax purposes), which approval shall not be unreasonably withheld, conditioned or delayed; provided, that, for the avoidance of doubt, this Section 6.03(m) does not apply to matters that are reserved to the Partnership Representative in Section 8.03;
(n) enter into, materially amend or modify, or terminate any Material Contract outside the normal course of business, which consent shall not be unreasonably withheld, conditioned or delayed (it being agreed that withholding consent to any amendment with the effect of accelerating, deferring, or otherwise modifying the timing of payments under any Material Contract shall not be unreasonable); provided that (i) the Company and its Subsidiaries shall be permitted to enter into Permitted Material Contracts and (ii) if a ▇▇▇▇▇▇▇ Default has occurred and is continuing, EFM may amend, modify, or terminate the ▇▇▇▇▇▇▇ Transportation Agreements, in case of either clause (i) or (ii), without Class B Member Approval;
(o) commence, settle, terminate, or fail to pursue any material litigation, proceeding, governmental or regulatory action, or other Claim reasonably expected to involve the payment by the Company or its Subsidiaries of more than $1 million individually or $5 million in the aggregate, which consent shall not be unreasonably withheld, conditioned, or delayed:; provided, however, that Class B Member Approval shall not be required in connection with commencing, settling, terminating or failing to pursue any litigation, proceeding or other Claim by the Company or EFM for the recovery of payments under the ▇▇▇▇▇▇▇ Transportation Agreements in connection with a ▇▇▇▇▇▇▇ Default;
(ip) other than with respect to a Member loan under Section 4.05(a), accelerate, delay, defer, or otherwise modify any payments, payables, receivables, or policies relating to any of the foregoing, other than in the ordinary course of business consistent with past practice and the policies of the Company and its Subsidiaries;
(q) adopt or amend any hedging plan or enter into, amend, modify, modify or terminate any material contract, agreement, or transaction (including hedging arrangements outside any Material Contract (as defined in the Asset Purchase Agreement)) outside the normal course of businessagreed hedging plan;
(iir) consummate or take any material steps to facilitate (A) the acquisition, directly or indirectly (including by merger), of fifty percent (50%) or more of the voting equity of the Company, (B) an initial public offering of equity securities of the Company or any of its Subsidiaries pursuant to an effective registration statement under the Securities Act, or (C) a consolidation, conversion, merger or other business combination involving the Company or any of its Subsidiaries , unless, contemporaneously with the consummation of such transaction described in clause (A) or (B), all of the outstanding Class B Units are purchased pursuant to one or more exercises of the Call Option, NEP Change of Control Option, or Class B COC Option in accordance with the provisions of Section 7.02, Section 7.03, or Section 7.04, as applicable;
(s) other than (A) Capital Calls pursuant to Section 4.04, (B) Member loans in an aggregate amount outstanding at any one time of not more than $60 50 million pursuant to Section 4.05(a), and (BC) loans in aggregate amount of not more than $140 million (plus the amount of any reasonable and documented out-of-pocket costs, fees, or expenses of the Company or its subsidiaries incurred in connection therewith) pursuant to Section 4.05(b), (D) entry into the NEP Affiliate Note (provided that any modification or termination thereof shall require Class B Member Approval), or (E) modifications or renewals of the Affiliate Transactions set forth on part (i) of Schedule E of the Class B Contribution Agreement to the extent such modifications or renewals are on arm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and do not adversely affect the Company or its Subsidiaries or reduce anticipated Available Cash on a pro forma basis, enter into, amend, modify, extend, renew, fail to renew, terminate, make an election with respect to, provide notice under, or terminate consent to any action with respect to any Affiliate TransactionTransaction that either (1) is not on arm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and in the ordinary course of business or (2) (x) in the case of any Affiliate Transaction entered into by the Company or its Subsidiaries for the provision of natural gas transportation or similar revenue-generating services provided by the Company or its applicable Subsidiary, involves consideration or revenues reasonably anticipated to be received by the Company and its Subsidiaries in respect of such Affiliate Transaction in excess of $1 10,000,000 during any 12-month period during the term of Affiliate Transaction or in excess of $25,000,000 in the aggregate over the term of such Affiliate Transaction, or does not meet the requirements of clause (b) or (c) of the definition of “Permitted Material Contract”, or (y) in the case of any Affiliate Transactions that are not for the provision of natural gas transportation or similar revenue-generating services provided by the Company or its applicable Subsidiary, involves consideration in excess of $5 million in the aggregate in the case of for all such Affiliate Transactions Transactions, which consent shall not be unreasonably withheld, conditioned or delayed (it being agreed that (xi) the consent of the holders of the Class B Units Member Approval shall not be required under this Section 6.03(b)(ii6.03(s) with respect to any Affiliate Transaction involving the acquisition, Disposition, or Encumbrance, on armsarm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and in the ordinary course of business, of spare parts or similar assets necessary to conduct the operations of the subsidiaries of the Company and its Subsidiaries, (yii) the consent of the holders of the Class B Units Member Approval shall be required under this Section 6.03(b)(ii6.03(s) for entry into, modification amendment, modification, extension, renewal, failure to renew, termination, election, notice or termination consent of or under any Affiliate Transactions not in excess of $1 million the dollar thresholds set forth in the aggregate clause (2) if such Affiliate Transactions are not on armsarm’s-length terms (or terms that are more favorable to the Company and its Subsidiaries than arm’s-length terms) and (iii) after the occurrence of a Triggering Event, Class B Member Approval shall be required under this Section 6.03(s) for entry into, amendment, modification, extension, renewal, failure to renew, termination, election, notice or consent of or under any Affiliate Transactions other than those described in the immediately foregoing clause (i));
(t) after the occurrence of a Triggering Event, (i) adoption or modification of any operating or capital budget, or the taking of any actions inconsistent with any such budget (ii) incurring, committing to, modifying or terminating any expenditure or series of related expenditures not included in, or to the extent exceeding the amount included in, the applicable operating or capital budget then in effect and approved pursuant to Section 6.03(t)(i), outside the ordinary course of business in excess of $1 million and (iii) making any Capital Call; or
(iiiu) initiate agree to take any litigation of the foregoing actions. For the avoidance of doubt, in no event shall Class B Member Approval be required with respect to action taken by a Separate Subsidiary, or other dispute resolution proceeding reasonably expected to involve the payment by the Company solely to the extent on behalf of a Separate Subsidiary; provided that (i) the foregoing shall remain subject to Section 6.03(s) and (ii) the Company shall not be permitted to use any cash or its subsidiaries of more than $1 million per instance Cash Equivalents generated or $5 million in received by the aggregate for all instances, or approve the settlement of any Claim for more than $1 million per Claim or $5 million in the aggregate for all Claims or any Claim that materially restricts the business Subsidiaries of the Company that are not Separate Subsidiaries (or generated or received by the Company on behalf of any such Subsidiary) for the payment of its subsidiariesany costs or expenditures owing by or at any Separate Subsidiary.
Appears in 1 contract
Sources: Contribution Agreement (NextEra Energy Partners, LP)