Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement. 7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: shall have the rights to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Alternative Restructuring Proposals. 7.03. Nothing in this Agreement shall (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 3 contracts
Samples: Restructuring Support Agreement (iHeartMedia, Inc.), Restructuring Support Agreement (iHeartMedia, Inc.), Restructuring Support Agreement (iHeartMedia, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, Party (including the Conflicts Committee) to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent such Company Party, board of directors, board of managers, or similar governing body (including the Conflicts Committee) believes in good faith, after consulting with counsel, that the taking or failing to take such action would be inconsistent with applicable Law or with its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement; provided, that each Consenting Stakeholder reserves its rights to challenge any exercise by any Company Party of its respective fiduciary duties.
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01Section 8.01, each Company Party (including the Conflicts Committee) and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring ProposalsProposals or other transactions; provided, that the Company Parties shall not seek or solicit any Alternative Restructuring Proposal; (2b) provide access to non-public confidential information concerning any Company Party to any Entity or enter party entering into confidentiality agreements or nondisclosure agreements with any Entitynon-disclosure agreements; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring ProposalsProposals or other transactions; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of of, Alternative Restructuring ProposalsProposals or other transactions in good faith and consistent with applicable fiduciary obligations; and (5e) enter into or continue discussions or negotiations with holders of Claims against Company Claims/Interests, any other party in interest in the Chapter 11 Cases, or Equity Interests in a Company Party any other party regarding the Restructuring Transactions or Transactions, any Alternative Restructuring Proposals, or any other transaction; provided, that the Company Parties shall provide copies of any such Alternative Restructuring Proposal to the financial and legal advisors of the Ad Hoc First Lien Group and Ad Hoc Crossover Group no later than two (2) business days following receipt thereof by the Company Parties or their advisors.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit impair or waive the rights of any Company Party or, on behalf of any Company Party, the Conflicts Committee to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions; or (b) prevent any Company Party or, on behalf of any Company Party, the Conflicts Committee from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 2 contracts
Samples: Restructuring Support Agreement (Foresight Energy LP), Restructuring Support Agreement (Foresight Energy LP)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with outside counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall give prompt written notice to the Consenting Stakeholders of any determination in accordance with this Section 7.01 to take or refrain from taking any action. This Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12 hereof, including on account of any action or inaction any Company Party or a governing body of such Company Party may take pursuant to this Section 7.01.
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights right to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2) provide access to non-public information concerning . If any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations receives an Alternative Restructuring Proposal with respect to which such Company Party then elects to engage in substantive negotiations with the party making such proposal regarding the terms of such proposal, then such Company Party shall (A) within one (1) Business Day of such engagement, notify counsel to the HPR Consenting Noteholders of the existence of such negotiations (but not the material terms thereof, the identity of the parties involved, any action taken or proposed to be taken by the Company Parties in response thereto, or any other details of the Alternative Restructuring ProposalsTransaction Proposal, unless otherwise agreed to by the Company Parties and the party making such proposal); (4B) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation provide counsel to the HPR Consenting Noteholders with regular updates as to the status and progress of Alternative Restructuring Proposalssuch negotiations; and (5C) enter into or continue discussions or negotiations respond promptly to reasonable information requests and questions from counsel to the HPR Consenting Noteholders with holders of Claims against or Equity Interests in a Company Party regarding respect to the Restructuring Transactions or Alternative Restructuring ProposalsProposal (but not the items carved out from subpart (A) hereof, unless otherwise agreed to by the Company Parties and the party making such proposal).
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; (eb) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; or (c) be construed as a waiver of HPR Consenting Noteholders’ rights, (f) require if any, to challenge any action or inaction any Company Party or a governing body of such Company Party may take pursuant to incur Section 7.01. For the avoidance of doubt, nothing in subpart (c) of the foregoing sentence shall be construed to confer any material financial standing or other material liability other than as expressly described incremental rights or remedies to or for the benefit of such HPR Consenting Noteholders.
7.04. No Company Party shall amend, or grant any waiver with respect to, the Merger Agreement (a) in this Agreementa manner that decreases the amount or changes the form of consideration payable to the HPR Consenting Noteholders without the prior written consent of the Required HPR Consenting Noteholders, or (gb) prohibit any Company Party from taking any action that is would otherwise have an adverse effect on the HPR Consenting Noteholders or their interests in the Restructuring Transactions, or reasonably be expected to delay or cause the Effective Time (as defined in the Merger Agreement) not inconsistent with this Agreementto occur, without the prior written consent of the Required HPR Consenting Noteholders, such consent not to be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Transaction Support Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate facilitate, but not seek, solicit or encourage, Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements agreements, the terms of which shall be consistent with this Agreement, including Section 3.02 of this Agreement, with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or existing Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest (including, if applicable, in the Chapter 11 Cases (including any official committee and the United States Trustee)), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals. At all times prior to the date on which the Company Parties enter into a definitive agreement in respect of an Alternative Restructuring Proposal, the Company Parties shall provide counsel for the Required Consenting Stakeholders with updates on the status of any discussions regarding an Alternative Restructuring Proposal and a copy of any written offer or proposal for such Alternative Restructuring Proposal within two (2) Business Days of the Company Parties’ or their advisors’ receipt of such offer or proposal.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 2 contracts
Samples: Plan Support Agreement (Vanguard Natural Resources, Inc.), Plan Support Agreement (Vanguard Natural Resources, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 2 contracts
Samples: Restructuring Support Agreement (iHeartMedia, Inc.), Restructuring Support Agreement (iHeartMedia, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counselin such person’s capacity as a director, officer, or member of the Company Party, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent such Company Party, board of directors, board of managers, or similar governing body believes in good faith, based on advice of counsel, that the taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement; provided, however, that nothing in this Section 8.01 shall be deemed to amend, supplement, or otherwise modify, or constitute a waiver of, any Consenting Term Lender Termination Event that may arise as a result of any such action or omission; provided further, it is agreed that any such action that results in a termination of this Agreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 13.06 hereof.
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) 7.02 and 7.018.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, facilitate, and facilitate negotiate in connection with any Alternative Restructuring Proposals; (2) provide access to non-public information concerning Proposal received by any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; that is a Superior Proposal and (5b) enter into or continue discussions or negotiations with holders of Claims against Company Claims/Interests (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or Equity Interests in a Company Party any other Entity regarding the Restructuring Transactions Transactions. If any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring ProposalsProposal, within two (2) Business Days, the Company Party shall notify (with email being sufficient) counsel to the Ad Hoc Group of Noteholders and Consenting Term Lenders of any such proposal or expression of interest, with such notice to include a copy of such proposal, if it is in writing, or otherwise a summary of the material terms thereof. If the board of directors of the Company Parties decides, in the exercise of its fiduciary duties, to pursue a Superior Proposal, the Company Parties shall notify counsel to the Ad Hoc Group of Noteholders and Consenting Term Lenders within two (2) Business Days of such determination.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement.
8.04. The Company Parties, (f) require to the extent enforceable, waive any Company Party right to incur any material financial or other material liability other than as assert that the exercise of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code and expressly described in stipulate and consent hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, or (g) prohibit any to the extent the Bankruptcy Court determines that such relief is required.
8.05. The Company Party from taking any action Parties, severally, and not jointly, represents, warrants, and covenants to each Consenting Stakeholder, as of the date such Consenting Stakeholder executes and delivers this Agreement and as of immediately prior to the Plan Effective Date, that Reorganized Pioneer is not inconsistent with this Agreementa “covered fund” as such term is defined in the final regulations promulgated under Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, 12 C.F.R. section 248.10(b)(1) (the “Xxxxxxx Rule”).
Appears in 1 contract
Samples: Restructuring Support Agreement (Pioneer Energy Services Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require prohibit a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the an Alternative Restructuring Transactions Proposal to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this AgreementAgreement (other than a failure to comply with this Section 8) or any other Definitive Document; provided, however, that, for avoidance of doubt, nothing herein shall (i) limit the rights of Consenting Creditors with respect to any such Alternative Restructuring Proposal hereunder or pursuant to applicable Law or (ii) obligate Consenting Creditors to support any such Alternative Restructuring Proposal.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate any Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring ProposalsProposal; (4c) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsProposals to the extent required under applicable Law or its fiduciary obligations under applicable Law or would be required if the applicable corporation were a Delaware corporation; (e) subject to Section 8.01 of this Agreement, enter into Alternative Restructuring proposals; and (5f) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests Interests, any other party in a Company Party interest in the Israeli Debt Arrangement Proceedings or Chapter 15 Case, or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals, provided that each such Company Party will inform the Consenting Creditors of any such actions listed in items (a) through (f) herein in writing, and shall provide the Consenting Creditors with any information requested by them with respect to such Alternative Restructuring Proposal and the Company’s determination concerning such Alternative Restructuring Proposal.
7.038.03. Except as otherwise set forth in any order of the Israeli Court or Bankruptcy Court, at all times prior to the date on which the Company Parties enter into a definitive agreement in respect of an Alternative Restructuring Proposal, the Company Parties shall provide the Consenting Creditors Advisors reasonably detailed updates with respect to the receipt of any offer or indication of interest that might result in an Alternative Restructuring Proposal and on the status of discussions or negotiations regarding any Alternative Restructuring Proposal (including the terms thereof subject to any applicable confidentiality restrictions) within two (2) Business Days of the Company Parties’ or their advisors’ receipt of any such Alternative Restructuring Proposal or indication by any party of its intention to submit an Alternative Restructuring Proposal. The Company Parties and/or the Company Parties’ advisors will make themselves reasonably available for separate weekly status update calls with the Consenting Creditors Advisors.
8.04. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that, and to the extent that any such action or inaction pursuant to such exercise of fiduciary duties shall not is inconsistent with this Agreement or would be deemed to constitute a material breach hereunder, including a determination to pursue an Alternative Restructuring Proposal, the Company Parties shall provide counsel to the Consenting Creditors and the Uniti Parties with written notice within two (2) Business Days of when any Company Party so acts or fails to act; provided, further, that any such inaction or action shall not impede any Party’s rights to terminate this AgreementAgreement pursuant to Section 13; provided, further that, for the avoidance of doubt, upon entry of the Uniti 9019 Order, the terms of the Uniti 9019 Order shall control, including as such order binds the Debtors with respect to the Uniti Transactions.
7.029.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) Section 9.01 and 7.01Section 13), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to: (a) consider and respond to (1) consider, respond to, and facilitate Alternative Restructuring ProposalsProposals (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any EntityEntity in connection with any Alternative Restructuring Proposal (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (3c) maintain or continue engage in discussions or negotiations with respect to Alternative Restructuring Proposals; Proposals (4or inquiries or indications of interest with respect thereto) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposalsthat may be received by the Company Parties; and (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions Transactions. If any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring ProposalsProposal, within two (2) Business Days, the Company Party shall notify (with email being sufficient) counsel to the Consenting Creditors of any such proposal or expression of interest, with such notice to include a copy of such proposal, if it is in writing, or otherwise a summary of the material terms thereof. If the board of directors of the Company Parties determines, in good faith, upon the advice of its outside legal advisors, to exercise a Fiduciary Out, the Company Parties shall notify counsel to the Consenting Creditors within two (2) Business Days following such determination. Upon any determination by any Company Party to exercise a Fiduciary Out (as defined below), the other Parties to this Agreement shall be immediately and automatically relieved of any obligation to comply with their respective covenants and agreements herein in accordance with Section 13.06 hereof.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial fact, or other material liability other than as expressly described in thing is a breach of, or is inconsistent with, this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.. 19
Appears in 1 contract
Samples: Chapter 11 Plan Support Agreement (Windstream Services, LLC)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a any Company Party or the board of directors, board of managers, members, or any similar governing body of a any Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 for which a Fiduciary Out Notice is provided in accordance herewith shall not be deemed to constitute a breach of this Agreement. This Section 8.01 shall not be deemed to amend, supplement or otherwise modify or constitute a waiver of, any Party’s rights to terminate this Agreement pursuant to Section 12 that may arise as a result of any action or inaction pursuant to this Section 8.01. The Company Parties shall give notice not later than one (1) Business Day following such determination (with email being sufficient) (a “Fiduciary Out Notice”) to the Senior Secured Creditor Advisors following a determination made in accordance with this Section 8.01 to take or not take action.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) considerreceive any unsolicited Alternative Restructuring Proposal and analyze, discuss, respond to, facilitate, and facilitate negotiate any such unsolicited Alternative Restructuring Proposals; Proposals and (2b) provide access continue to non-public information concerning pursue the Strategic Capital Process, Strategic Transaction and/or an Acceptable Sale Transaction. If any Company Party receives an Alternative Restructuring Proposal or any proposal related to the Strategic Capital Process, Strategic Transaction or an Acceptable Sale Transaction, then such Company Party shall, within one (1) Business Day of receiving such proposal, provide the Senior Secured Creditor Advisors with all documentation received in connection with such proposal (or, if such proposal was not made in writing, a reasonably detailed summary of such proposal), including the identity of the person or group of persons involved and reasonable updates as to the status and progress of such proposal, and such Company Party shall use commercially reasonable efforts to respond promptly to reasonable information requests and questions from the Senior Secured Creditor Advisors relating to such proposal. The Company Parties shall consult in good faith with the Required Consenting Senior Secured Creditors regarding any Entity response in respect of any such proposal. For the avoidance of doubt, notwithstanding Section 8.01 hereof, no Company Party shall enter any letter of intent, definitive documentation or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations other binding agreement with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests an Acceptable Sale Transaction unless such agreement is in a Company Party regarding form and substance acceptable to the Restructuring Transactions or Alternative Restructuring ProposalsRequired Consenting Senior Secured Creditors.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this Agreement, (f) require Agreement or any Company Party to incur any material financial or other material liability other than as expressly described in this AgreementDefinitive Document, or (g) prohibit contesting whether any Company Party from taking any action that matter, fact, or thing is not a breach of, or is inconsistent with with, this AgreementAgreement or the Definitive Documents, or exercising its rights or remedies reserved herein or in the Definitive Documents.
Appears in 1 contract
Samples: Restructuring Support Agreement (Airspan Networks Holdings Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this AgreementAgreement (other than a failure to comply with this Section 7); provided that the Company Parties shall notify counsel to the Consenting Stakeholders in writing promptly in the event of any such determination (and in any event no later than two (2) Business Days following such determination).
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests (including any Consenting Stakeholder), any other party in a Company Party interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that the Company Parties shall (x) provide a copy of any written Alternative Restructuring Proposal (and notice of, and a written summary of, any oral Alternative Restructuring Proposal) within two (2) Business Days of the Company Parties’ or their advisors’ receipt of such Alternative Restructuring Proposal to Gxxxxxxxx and Milbank and (y) provide such information to Milbank as reasonably requested by the Lender Group or as necessary to keep the Lender Group reasonably informed as to the status and substance of such discussions.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counselParty or any duly constituted committee of any of the foregoing, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent such person or persons determines, in good faith, upon the advice of outside legal counsel, that taking or failing to take such action would be reasonably likely to be inconsistent with applicable Law or its fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement; provided that the Company Parties shall promptly provide written notice to the Consenting Stakeholders’ respective counsel (and, in any case, within one (1) calendar day) of any such determination in accordance with this Section 8.01 to take or refrain from taking any action. This Section 8.01 shall not impede the Consenting Stakeholders’ right to terminate this Agreement pursuant to Sections 13.01 and 13.02 of this Agreement, as applicable.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to Section 7.01 and Section 8.01 and the terms Bidding Procedures), until the entry of Sections 6.01(j) and 7.01the Confirmation Order, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) solicit, consider, respond to, and facilitate seek to consummate Alternative Restructuring Proposals; provided that the Company Parties must use their reasonable best efforts to (2i) provide copies of any such Alternative Restructuring Proposal received to the financial and legal advisors to the Consenting Investor, the Consenting Noteholders, and the Consenting RCF Lenders no later than one (1) calendar day following receipt thereof; (ii) provide the financial and legal advisors to the Consenting Investor, the Consenting Noteholders, and the Consenting RCF Lenders with regular updates as to the status and progress of such Alternative Restructuring Proposal; and (iii) respond promptly to information requests and questions from the financial and legal advisors to the Consenting Investor, the Consenting Noteholders, and the Consenting RCF Lenders relating to such Alternative Restructuring Proposal; (b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity for the purpose of facilitating such Entity; (3) maintain or continue discussions or negotiations with respect to Alternative ’s participation in the Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsTransactions; and (5c) enter into or continue discussions or negotiations with holders of Claims against Company Claims/Interests (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or Equity Interests in a Company Party any other Entity regarding the Restructuring Transactions or Alternative Restructuring ProposalsTransactions.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall give prompt written notice to counsel to the Consenting Stakeholders within two (2) calendar days of any determination made in accordance with this Section 7.01 to take any action or refrain from taking any inaction. Notwithstanding anything to the contrary herein, each Consenting Term Loan Lender reserves its rights to challenge any action taken or not taken by any Company Party in the exercise of its fiduciary obligations.
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring ProposalsProposals that are unsolicited or received as part of the PWP Marketing Process; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring ProposalsProposals that are unsolicited or received as part of the PWP Marketing Process; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsProposals that are unsolicited or received as part of the PWP Marketing Process; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the U.S. Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals, provided that (x) if any Company Party receives an Alternative Restructuring Proposal, then such Company Party shall within two (2) calendar days of receiving such proposal, notify the Required Consenting Term Loan Advisor of the receipt of such proposal (email being sufficient) (y) provide the Required Consenting Term Loan Advisor with regular updates as to the status and progress of such Alternative Restructuring Proposal; and (z) use commercially reasonable efforts to respond promptly to reasonable information requests and questions from the Required Consenting Term Loan Advisor relating to such Alternative Restructuring Proposal.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Vertex Energy Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions Transactions, including terminating this Agreement pursuant to Section 12.02(b), to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided that this Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12, including, for the avoidance of doubt, the Consenting Noteholder’s rights to terminate in accordance with Section 12.01; provided, further, that the Company Parties shall provide notice as soon as reasonably practicable (before or after) to the Ad Hoc Group (with email to Kxxxxx Lxxxx being sufficient) of (a) any such action or inaction in reliance on this Section 7 or (b) the board of directors, board of managers, or such similar Governing Body of any Company Party having made a determination to terminate this Agreement pursuant to Section 12.02(b).
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) solicit, encourage, consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate facilitate, and respond to any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Noteholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that, and to the extent that any such action or inaction pursuant to such exercise of fiduciary duties shall not is inconsistent with this Agreement or would be deemed to constitute a material breach hereunder, including a determination to pursue an Alternative Restructuring Proposal, the Company Parties shall provide counsel to the Consenting Creditors and the Uniti Parties with written notice within two (2) Business Days of when any Company Party so acts or fails to act; provided, further, that any such inaction or action shall not impede any Party’s rights to terminate this AgreementAgreement pursuant to Section 13; provided, further that, for the avoidance of doubt, upon entry of the Uniti 9019 Order, the terms of the Uniti 9019 Order shall control, including as such order binds the Debtors with respect to the Uniti Transactions.
7.029.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) Section 9.01 and 7.01Section 13), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to: (a) consider and respond to (1) consider, respond to, and facilitate Alternative Restructuring ProposalsProposals (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any EntityEntity in connection with any Alternative Restructuring Proposal (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (3c) maintain or continue engage in discussions or negotiations with respect to Alternative Restructuring Proposals; Proposals (4or inquiries or indications of interest with respect thereto) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposalsthat may be received by the Company Parties; and (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions Transactions. If any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring ProposalsProposal, within two (2) Business Days, the Company Party shall notify (with email being sufficient) counsel to the Consenting Creditors of any such proposal or expression of interest, with such notice to include a copy of such proposal, if it is in writing, or otherwise a summary of the material terms thereof. If the board of directors of the Company Parties determines, in good faith, upon the advice of its outside legal advisors, to exercise a Fiduciary Out, the Company Parties shall notify counsel to the Consenting Creditors within two (2) Business Days following such determination. Upon any determination by any Company Party to exercise a Fiduciary Out (as defined below), the other Parties to this Agreement shall be immediately and automatically relieved of any obligation to comply with their respective covenants and agreements herein in accordance with Section 13.0607 hereof.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial fact, or other material liability other than as expressly described in thing is a breach of, or is inconsistent with, this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.. 20
Appears in 1 contract
Samples: Chapter 11 Plan Support Agreement (Windstream Services, LLC)
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement.19
7.029.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) Section 9.01 and 7.01Section 13), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to: (a) consider and respond to (1) consider, respond to, and facilitate Alternative Restructuring ProposalsProposals (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any EntityEntity in connection with any Alternative Restructuring Proposal (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (3c) maintain or continue engage in discussions or negotiations with respect to Alternative Restructuring Proposals; Proposals (4or inquiries or indications of interest with respect thereto) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposalsthat may be received by the Company Parties; and (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions Transactions. If any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring ProposalsProposal, within two (2) Business Days, the Company Party shall notify (with email being sufficient) counsel to the Consenting Creditors of any such proposal or expression of interest, with such notice to include a copy of such proposal, if it is in writing, or otherwise a summary of the material terms thereof. If the board of directors of the Company Parties determines, in good faith, upon the advice of its outside legal advisors, to exercise a Fiduciary Out, the Company Parties shall notify counsel to the Consenting Creditors within two (2) Business Days following such determination. Upon any determination by any Company Party to exercise a Fiduciary Out (as defined below), the other Parties to this Agreement shall be immediately and automatically relieved of any obligation to comply with their respective covenants and agreements herein in accordance with Section 13.08 hereof.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial fact, or other material liability other than as expressly described in thing is a breach of, or is inconsistent with, this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement. Section 10.
Appears in 1 contract
Samples: Chapter 11 Plan Support Agreement (Windstream Services, LLC)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counselParty or any duly constituted committee of any of the foregoing, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent such person or persons determines, in good faith, upon the written advice of outside legal counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that the Company Parties shall promptly provide written notice to the Consenting Creditors’ counsel (and, and in any case, within one (1) calendar day) of any such action determination in accordance with this Section 8.01 to take or inaction refrain from taking any action. This Section 8.01 shall not impede the Consenting Creditors’ right to terminate this Agreement pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach Sections 13.01 and 13.02 of this Agreement, as applicable.
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to until the terms of Sections 6.01(j) and 7.01Effective Date, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights right to: (a) respond to an unsolicited Alternative Restructuring Proposal; provided that the Company Parties must use their best efforts to (i) provide copies of any such Alternative Restructuring Proposal received to the Consenting Creditor Advisors no later than one (1) consider, respond to, calendar day following receipt thereof; (ii) provide the Consenting Creditor Advisors with regular updates as to the status and facilitate progress of such Alternative Restructuring ProposalsProposal; and (iii) respond promptly to information requests and questions from the Consenting Creditor Advisors relating to such Alternative Restructuring Proposal; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity for the purpose of facilitating such Entity; (3) maintain or continue discussions or negotiations with respect to Alternative ’s participation in the Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsTransactions; and (5c) enter into or continue discussions or negotiations with holders of Claims against Company Claims/Interests (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or Equity Interests in a Company Party any other Entity regarding the Restructuring Transactions or Alternative Restructuring ProposalsTransactions.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counseltheir respective counsel and following the conclusion of any applicable investigation, to take any action or to refrain from taking any action with respect to the Restructuring Transactions Transactions, the Chapter 11 Plan, the WHOA Plan or the Chapter 15 Proceedings, to the extent taking or failing to take such action is or would be inconsistent with applicable Law or the exercise of its respective fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 9.01 shall not be deemed to constitute a breach of this Agreement; provided, it is agreed that any such action that results in a termination of this Agreement in accordance with the terms hereof shall result in the automatic termination of this Agreement as set forth in Section 13.06.
7.029.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to: (a) consider and respond to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, assist or participate in, or facilitate in any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including, but subject to Section 6.01(b)(ii), any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official creditors committee and the United States Trustee) or the Dutch Scheme Proceedings, or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (DIEBOLD NIXDORF, Inc)
Additional Provisions Regarding Company Parties’ Commitments. 7.011.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or Law, inconsistent with its corporate benefit, inconsistent with its fiduciary obligations under applicable Law, or result in any criminal liability for the relevant person, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement; provided, it is agreed that any such action that results in a termination of this Agreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 12.06 hereof.
7.028.01. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) considerreceive, analyze, discuss, respond to, facilitate, and facilitate negotiate any unsolicited Alternative Restructuring ProposalsProposals received by any Company Party; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5d) enter into or continue discussions or negotiations with holders of Claims against Company Claims/Interests (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or Equity Interests in a Company Party any other Entity regarding the Restructuring Transactions or Transactions. If any Company Party receives an Alternative Restructuring ProposalsProposal, then such Company Party shall, within two (2) Business Days of receiving such proposal, provide counsel to each of Highbridge, the Noteholder Ad Hoc Group, and Azurite with a copy of each written proposal, including all annexes, ancillary terms, and other components of such proposal, or a reasonably detailed summary of each oral proposal, including the identity of the person or group of persons involved and reasonable updates as to the status and progress of such Alternative Restructuring Proposal and such Company Party shall respond promptly to reasonable information requests and questions from the advisors to Highbridge, the Noteholder Ad Hoc Group, or Azurite relating to such Alternative Restructuring Proposal.
7.038.02. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or any Definitive Document, (f) require or contesting whether any Company Party to incur any material financial matter, fact, or other material liability other than thing is a breach of, or is inconsistent with, this Agreement or the Definitive Documents, or exercising its rights or remedies reserved herein or in the Definitive Documents, so long as expressly described the Definitive Documents are in satisfaction of all requirements of this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreementincluding Section 3.02.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions Transactions, including terminating this Agreement pursuant to Section 12.02(b), to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided that this Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12, including, for the avoidance of doubt, the Consenting Creditors’ rights to terminate in accordance with Section 12.01; provided further that the Company Parties shall provide notice as soon as reasonably practicable (before or after) to the Ad Hoc Group (with email to Xxxxxx Xxxxx being sufficient) and the RCF Agent (with email to Shearman being sufficient) of (a) any such action or inaction in reliance on this Section 7 or (b) the board of directors, board of managers, or such similar Governing Body of any Company Party having made a determination to terminate this Agreement pursuant to Section 12.02(b).
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) solicit, encourage, consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-non- public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate facilitate, and respond to any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement
Additional Provisions Regarding Company Parties’ Commitments. 7.01. 8.01 Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company PartyParty (including any special committee of such governing body, as applicable), after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement; provided, however, that this Section 8.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12. The Company Parties shall give prompt written notice to counsel to the Consenting Stakeholders of any determination in accordance with this Section 8.01 to take or refrain from taking any action.
7.02. 8.02 Notwithstanding anything contrary to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall not solicit an Alternative Restructuring Proposal, offer, indication of interest, or inquiry for one or more Alternative Restructuring Proposals, but shall have the rights right to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; Proposals and in furtherance thereof, may: (2a) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any EntityEntity regarding Alternative Restructuring Proposals; (3b) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4c) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and and/or (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that the applicable Company Party or its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other advisors or representatives shall (y) provide notice and a copy of any Alternative Restructuring Proposal to counsel to the Consenting Stakeholders within one (1) Business Day of receipt, and (z) inform counsel to the Consenting Stakeholders of any decision to exercise a Fiduciary Out within 24 hours of such decision being made.
7.03. 8.03 Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Gulfport Energy Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this AgreementAgreement (but subject to Section 1.02), nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company PartyParty (including any Disinterested Directors and Managers), after consulting with counseltheir respective counsel and following the conclusion of any applicable investigation, to take any action or to refrain from taking any action with respect to the Restructuring Transactions or the Plan (or the Non-TopCo Plan, as applicable), to the extent taking or failing to take such action is or would be inconsistent with applicable Law Law, or the exercise of its respective fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 9.01 shall not be deemed to constitute a breach of this AgreementAgreement (the foregoing, the “Fiduciary Out”); provided that no Company Party shall exercise its Fiduciary Out from the commencement of the Confirmation Hearing until such time that the Bankruptcy Court either (i) enters a written order regarding confirmation of the Plan (or the Non-TopCo Plan, as applicable), which may be the Confirmation Order, or (ii) determines on the record at the Confirmation Hearing that the Plan is not-confirmable; provided, further, that if the Bankruptcy Court determines the Plan is not confirmable solely as to Intelsat Investments Holdings S.a.r.l. and/or Intelsat S.A., the provisions set forth herein and in the Plan regarding pursuit of the Non-TopCo Plan shall be triggered. For the avoidance of doubt, upon the occurrence of either prong (i) or (ii) of the foregoing, each Company Party shall have the ability to exercise the Fiduciary Out, in accordance with the terms herein (including Section 1.02).
7.029.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) Section 9.01 and 7.01Section 1.02), each Company Party and their respective directorsdirectors (including any Disinterested Directors and Managers), officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including, but subject to Section 5.01(c)(ii), any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including the Creditors’ Committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.039.03. At all times prior to the date on which the Company Parties enter into a definitive agreement in respect of an Alternative Restructuring Proposal, the Company Parties shall provide counsel to the Xxxxxxx Crossover Ad Hoc Group and counsel to the HoldCo Creditor Ad Hoc Group reasonably detailed updates on the status of discussions or negotiations regarding any Alternative Restructuring Proposal (including the terms thereof subject to any applicable confidentiality restrictions) within one (1) Business Day of the Company Parties’ or their advisors’ receipt of any such Alternative Restructuring Proposal. The Company Parties and/or the Company Parties’ advisors will make themselves reasonably available for separate weekly status update calls with (i) on the one hand, counsel to the Xxxxxxx Crossover Ad Hoc Group, and (ii) on the other hand, counsel to the HoldCo Creditor Ad Hoc Group, in each case, with respect to the foregoing.
9.04. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. (a) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, Party to take any action or to refrain from taking any action with respect to the Restructuring Transactions (including termination of this Agreement under Article 9) to the extent such Company Party or the Governing Body of a Company Party determines, based on the advice of counsel, that taking or failing to take refraining from taking such action action, as applicable, would be inconsistent with applicable Law or its fiduciary and/or contractual obligations under applicable LawSection 6.10(d) of the Fifth Amended and Restated Agreement of Limited Partnership of Ferrellgas Partners, L.P. dated as of June 5, 2018 or the Third Amended and any such action or inaction pursuant to such exercise Restated Agreement of fiduciary duties Limited Partnership of Ferrellgas, L.P. dated April 7, 2004 (collectively, the “LP Agreements”); provided, however, that the foregoing shall not be deemed to amend, supplement, or otherwise modify, or constitute a breach waiver of, any termination rights of the Consenting Noteholders under this AgreementAgreement that may arise as a result of any such action or inaction. This Section 6.4(a) shall not impede any Party’s right to terminate this Agreement pursuant to Article 9, including, for the avoidance of doubt, the Consenting Noteholders’ rights to terminate in accordance with Section 9.1.
7.02. (b) Notwithstanding anything to the contrary in this Agreement, but subject to the terms upon receipt of Sections 6.01(j) and 7.01an Alternative Transaction Proposal, each Company Party and their respective directors, managers, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives (including any Governing Body members) shall have the rights right to (1) consider, consistent with their fiduciary or contractual duties under Section 6.10(d) of the LP Agreements, as applicable, such Alternative Transaction Proposal; provided that if any Company Party receives an Alternative Transaction Proposal, then such Company Party shall (A) within three (3) calendar days of receiving such proposal, notify the Consenting Noteholder Advisors of the receipt of such proposal and deliver a copy of such proposal to the Consenting Noteholder Advisors; (B) provide the Consenting Noteholder Advisors with regular updates as to the status and progress of such Alternative Transaction Proposal; and (C) use commercially reasonable efforts to respond topromptly to reasonable information requests and questions from Consenting Noteholder Advisors relating to such Alternative Transaction Proposal. If the Company Parties decide to file, and facilitate support, make a written proposal or counterproposal to any party relating to an Alternative Restructuring Proposals; Transaction Proposal, the Company Parties shall provide notice to the Consenting Noteholder Advisors at least two (2) provide access Business Days prior to non-public information concerning taking any Company Party such action. Upon receipt of such notice, the Required Consenting Noteholders shall have the right to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3terminate this Agreement pursuant to Section 9.1(q) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Alternative Restructuring Proposalsthis Agreement.
7.03. (c) Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (di) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring implementation of the Transactions, ; (eii) affect the ability of any Company Party to consult with any Consenting Noteholders; or (iii) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement.
(d) The financial advisor to the Company Parties will provide to the Consenting Noteholder Advisors, (f) require on a bi-weekly basis, a redacted list of each institution that has been contacted, each institution’s status as to signing a non-disclosure agreement and conducting due diligence and expectations as to whether such institution intends to submit an indication of interest in each case with respect to the marketing processes for the New Senior Preferred Units, the New OpCo Notes, the New Revolving Credit Facility, and any other marketing and/or solicitation process conducted by any Company Party or any of their advisors in connection with any component of the Transactions; provided, that the Company Parties and their advisors will host a weekly update conference call for the Consenting Noteholder Advisors to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreementprovide updates related to the aforementioned items.
Appears in 1 contract
Samples: Transaction Support Agreement (Ferrellgas Partners Finance Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement. This Section 8.01 shall not impede the Required Consenting Stakeholders’ right to terminate this Agreement pursuant to Section 13.01 of this Agreement.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals, in the case of (d), if the board of directors of such Company Party determines, after consulting with counsel, in good faith, and consistent with its fiduciary duties, that (i) such Alternative Restructuring Proposal could maximize the value of the Company Parties’ estates and recoveries to all their stakeholders as compared to the Restructuring Transactions, or (ii) proceeding with the Restructuring Transactions would be inconsistent with the applicable fiduciary duties of the board of directors of such Company Party. The Company Parties shall (x) provide to the PW Ad Hoc Group Advisors, the Akin Ad Hoc Group Advisors, and the Secured Exchangeable Notes Advisors, on a professional eyes only basis, (1) a copy of any written offer or proposal (and notice and a description of any oral offer or proposal) for such Alternative Restructuring Proposal, if not barred under any applicable confidentiality agreement between any Company Party and the submitting party or such submitting party otherwise consents or (2) a summary of the material terms thereof, if any Company Party is bound by a confidentiality agreement with, or other known contractual or legal obligation of confidentiality to, the submitting party, in each case within one (1) Business Day of the Company Parties’ or their advisors’ receipt of such offer or proposal, and (y) provide such information to the PW Ad Hoc Group Advisors, the Akin Ad Hoc Group Advisors, and the Secured Exchangeable Notes Advisors regarding such discussions (including copies of any materials provided to such parties hereunder) as necessary to keep the PW Ad Hoc Group Advisors, the Akin Ad Hoc Group Advisors, and the Secured Exchangeable Notes Advisors reasonably contemporaneously informed as to the status and substance of such discussions.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Avaya Holdings Corp.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall provide written notice to the Consenting Stakeholders within one (1) Business Day of any determination made in accordance with this Section 8.01.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment 2 Material litigation shall consist of any settlement where the Company Parties are giving any value or consideration in excess of $250,000. bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Transaction Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Transaction Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Transaction Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Transaction Proposals; provided that if any Company Party receives an Alternative Transaction Proposal, then such Company Party shall, on a professional eyes only basis (x) provide counsel to the Consenting Stakeholders a copy of any written offer or proposal (and notice and a description of any oral offer or proposal) for any Alternative Transaction Proposal within three (3) Business Days of the Company Parties’ or their advisors’ receipt of such offer or proposal, (y) provide such information to the foregoing advisors regarding any discussions relating to an Alternative Transaction Proposal (including copies of any materials provided to such parties hereunder) as necessary to keep counsel to the Consenting Stakeholders reasonably informed as to the status and substance of such discussions, and (z) respond promptly to reasonable information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Transaction Proposal.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company PartyParty (including any Disinterested Directors and Managers), after consulting with counseltheir respective counsel and following the conclusion of any applicable investigation, to take any action or to refrain from taking any action with respect to the Restructuring Transactions or the Plan, to the extent taking or failing to take such action is or would be inconsistent with applicable Law Law, or the exercise of its respective fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 9.01 shall not be deemed to constitute a breach of this Agreement.
7.029.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 9.01), each Company Party and their respective directorsdirectors (including any Disinterested Directors and Managers), officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including, but subject to Section 5.01(c)(ii), any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including the Creditors’ Committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (f) require .
9.04. Without in any Company Party to incur any material financial or other material liability other than as expressly described in way limiting the effectiveness of this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent which, for the avoidance of doubt has been duly authorized and approved by each of the Disinterested Directors and Managers, the Disinterested Directors and Managers shall, consistent with this Agreementtheir fiduciary duties, have the ability to continue to analyze all conflicts matters in connection with the negotiation and implementation of the Plan.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board Conflicts Committee of directors, board the Board of managers, members, or any similar governing body Directors of a Company PartySeadrill Partners LLC (the “Conflicts Committee”), after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) solicit, encourage, consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting TLB Lender), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided, however, that if any Company Party receives a proposal or expression of interest (orally or in writing) from a third party regarding an Alternative Restructuring Proposal that the Conflicts Committee determines in good faith and following consultation with counsel is a bona fide committed proposal that represents higher or otherwise better economic recovery to the Company Parties’ stakeholders than the Restructuring Transactions taken as a whole, such Company Party shall (x) provide counsel to the Consenting TLB Lenders with a copy of such Alternative Restructuring Proposal (or a description of the terms thereof, if such proposal was conveyed orally) within two (2) Business Days of the Company Party’s receipt thereof, (y) provide information reasonably necessary to counsel to the Consenting TLB Lenders regarding such Alternative Restructuring Proposal to keep the Consenting TLB Lenders reasonably informed as to the status and substance of such proposal (including, but not limited to, the identity of the party or parties making such proposal or expression of interest except to the extent such Company Party is precluded from doing so pursuant to any applicable confidentiality agreement), and (z) use commercially reasonable efforts to respond promptly to information requests and questions from counsel to the Consenting TLB Lenders relating to such Alternative Restructuring Proposal.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, and subject to Section 13.02(c), nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counselincluding any director, manager, or officer of a Company Party that is an employee, representative, or agent of any Consenting Shareholders, to take any action or to refrain from taking any action with respect pursuant to the Restructuring Transactions this Agreement (including, without limitation, terminating this Agreement pursuant to Section 13.02 hereof, to the extent taking the board of directors or failing mangers reasonably determines in good faith, based on the advice of external counsel (including counsel to take the Company), that taking, or such action action, as applicable, would be inconsistent with applicable Law or its fiduciary obligations under or applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement. The Company shall promptly notify each of the Consenting Creditor Parties of any such determination (and in any event within two (2) business days following such determination).
7.029.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective its directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, discuss, and facilitate negotiate unsolicited Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; that (3i) maintain or continue discussions or negotiations with respect to provides an unsolicited Alternative Restructuring Proposals; Proposal, (4ii) otherwise cooperate withexecuted and delivers a Confidentiality Agreement, assistwhich shall be in form and substance reasonably acceptable to the Required Consenting Lenders, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposalsand (iii) requests such information; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Lender), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Transactions. At all times prior to the date on which the Company Parties enter into a definitive agreement with respect to an Alternative Restructuring, the Company Parties shall inform counsel to the Consenting Lenders and the Consenting Shareholders regarding (A) any discussions and/or negotiations relating to any such Alternative Restructuring Proposalsand/or (B) any amendments, modifications or other changes to, or any further developments of, any such Alternative Restructuring, in any such case as is necessary to keep such counsel contemporaneously informed as to the status and substance of such discussions, negotiations, amendments, modifications, changes and/or developments.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with outside counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law law or its fiduciary obligations under applicable Lawlaw, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided, that if (and on each occasion) a Company Party determines not to take any action or to refrain from taking any action with respect to the Restructuring Transactions in accordance with this Section 7.01, such Company Party shall provide written notice of such determination to the Ad Hoc Group’s Advisors within three (3) business days of such Company Party making such determination.
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2a) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements that provides an unsolicited Alternative Restructuring Proposal and executes and delivers a Confidentiality Agreement with any Entitythe Company Parties; (3b) respond to, facilitate inquires with respect to, and maintain or and continue discussions or negotiations with respect to an unsolicited Alternative Restructuring Proposals; (4) otherwise cooperate withProposal received by any of the Company Parties if the board of directors, assist, participate inboard of managers, or facilitate any inquiriessimilar governing body of such Company Party determines in good faith, proposalsupon the advice of outside counsel, discussionsthat failure to take such action would be inconsistent with the fiduciary duties, if any, of the members of such board or negotiation of Alternative Restructuring Proposalsgoverning body under applicable law; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Lender), any other party in interest in the Chapter 11 Cases (including any official committee and the U.S. Trustee), or any other Entity regarding the Restructuring Transactions or unsolicited Alternative Restructuring Proposals. At all times prior to the date on which the Company Parties enter into a definitive agreement with respect to an Alternative Restructuring, the Company Parties shall provide the Ad Hoc Group’s Advisors with all relevant information regarding (A) any discussions and/or negotiations relating to any such Alternative Restructuring Proposal and/or (B) any amendments, modifications, or other changes to, or any further developments of, any such Alternative Restructuring Proposal, in any such case as is necessary to keep such counsel contemporaneously informed as to the status and substance of such discussions, negotiations, amendments, modifications, changes, and/or developments.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Pennsylvania Real Estate Investment Trust)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01, including a determination to pursue an Alternative Restructuring Proposal, shall not be deemed to constitute a breach of this AgreementAgreement (other than solely for the purpose of establishing the occurrence of an event that may give rise to a termination right). The Company shall give prompt written notice to counsel to the Consenting Stakeholders of any determination made in accordance with this Section 7.01.
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to to, and solely in the terms of Sections 6.01(j) and circumstances set forth in, Section 7.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, to and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, in or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (CURO Group Holdings Corp.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary duties or obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement.
7.02. (a) Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and Section 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: shall have from the rights to Agreement Effective Date through the earlier of (1i) consider, respond to, and facilitate Alternative Restructuring Proposals; (2) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation consummation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or (ii) commencement of the Chapter 11 Cases, the Company Parties shall not, directly or indirectly, be entitled to seek, solicit, encourage, initiate, propose or support any offer or proposal from, enter into any agreement with, or engage in any discussions or negotiations with, any person or entity concerning any actual or proposed Alternative Restructuring ProposalsProposal; provided, that the Company Parties may respond to any proposal or offer for an Alternative Restructuring Proposal to the extent that the Company Parties’ Chief Restructuring Officer determines in good faith, and consistent with its fiduciary duties, that such a response is necessary; provided, further, that the Company Parties shall promptly, and in no event later than 2 (two) days after receipt, provide copies of all such documentations and materials received by the Company Parties concerning such an Alternative Restructuring Proposal to the advisors to the Consenting Parties. For the avoidance of doubt, any determination to pursue an Alternative Restructuring Proposal shall be subject to the approval of the board of directors, board of managers, or similar governing body of any Company Party and the board of directors of FEAM.
(b) In the event of an In-Court Restructuring, upon the Petition Date, Section 7.02(a) shall no longer be applicable and the Company shall be entitled to seek, solicit, encourage, initiate, propose or support any offer or proposal from, enter into any agreement with, or engage in any discussions or negotiations with, any person or entity concerning any actual or proposed Alternative Restructuring Proposal; provided, that the Company Parties shall promptly, and in no event later than 2 (two) days after receipt, provide copies of all such documentations and materials received by the Company Parties concerning such an Alternative Restructuring Proposal to the advisors to the Consenting Parties (regardless of any confidentiality provisions in such Alternative Restructuring Proposal).
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (5E Advanced Materials, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a the Company Party Parties or the board of directors, board of managers, membersany special committee, or any similar governing body of a any Company Party, including any director, manager, or officer of any Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect pursuant to the Restructuring Transactions this Agreement (including terminating this Agreement), to the extent taking the board of directors or failing managers, or special committee, reasonably determines in good faith, based on the advice of counsel (including counsel to take the Company Parties), that taking, or refraining from taking, such action action, as applicable, would be inconsistent with applicable Law or its fiduciary obligations under or applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement. The Company Parties shall provide prompt written notice (within two (2) days) to counsel to the Required Consenting Lenders of any such determination in accordance with this Section 7.01 to take or refrain from taking any action. This Section 7.01 shall not impede the Consenting Lenders’ right to terminate this Agreement pursuant to Section 12.01 of this Agreement.
7.02. The Company Parties shall notify the Consenting Lenders in writing as promptly as practicable after receipt by any Company Party or its representatives or agents of any proposal or offer from any person or entity to effect an Alternative Restructuring Proposal or any request for confidential information relating to the Company Parties or any request to enter into a Confidentiality Agreement related to a potential Alternative Restructuring Proposal. Such notice shall indicate the identity of the person or entity making the proposal, offer, or request and the material terms of any such proposal, offer, or request to the extent permitted by applicable Law.
7.03. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to Sections 6.01, 7.01 and 7.02, the terms of Sections 6.01(j) and 7.01, each Company Party Parties and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights right to: (a) consider and respond to, but not solicit, propose, or encourage, an Alternative Restructuring Proposal; provided that the Company Parties must use their reasonable best efforts to (i) provide copies of any such Alternative Restructuring Proposal received to the Required Consenting Lenders’ Advisors no later than one (1) consider, respond to, calendar day following receipt thereof; (ii) provide the Required Consenting Lenders’ Advisors with regular updates as to the status and facilitate progress of such Alternative Restructuring ProposalsProposal; and (iii) respond promptly to information requests and questions from the Required Consenting Lenders’ Advisors relating to such Alternative Restructuring Proposal; (2b) provide access to non-public nonpublic information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity for the purpose of facilitating such Entity; (3) maintain ’s participation in the Restructuring Transactions or continue discussions or negotiations with respect to such Entity’s Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsProposal; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Company Claims/Interests in a Company Party Party, any other party in interest or any other Entity regarding the Restructuring Transactions or Alternative Restructuring ProposalsTransactions.
7.037.04. Nothing in this Agreement shall (a) be construed to prohibit any prevent the Company Party Parties from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that, and to the extent that any such action or inaction pursuant to such exercise of fiduciary duties shall not is inconsistent with this Agreement or would be deemed to constitute a material breach hereunder, including a determination to pursue an Alternative Restructuring Proposal, the Company Parties shall provide counsel to the Consenting Creditors and the Uniti Parties with written notice within two (2) Business Days of when any Company Party so acts or fails to act; provided, further, that any such inaction or action shall not impede any Party’s rights to terminate this AgreementAgreement pursuant to Section 13; provided, further that, for the avoidance of doubt, upon entry of the Uniti 9019 Order, the terms of the Uniti 9019 Order shall control, including as such order binds the Debtors with respect to the Uniti Transactions.
7.029.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) Section 9.01 and 7.01Section 13), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to: (a) consider and respond to (1) consider, respond to, and facilitate Alternative Restructuring ProposalsProposals (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any EntityEntity in connection with any Alternative Restructuring Proposal (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; (3c) maintain or continue engage in discussions or negotiations with respect to Alternative Restructuring Proposals; Proposals (4or inquiries or indications of interest with respect thereto) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposalsthat may be received by the Company Parties; and (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions Transactions. If any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring ProposalsProposal, within two (2) Business Days, the Company Party shall notify (with email being sufficient) counsel to the Consenting Creditors of any such proposal or expression of interest, with such notice to include a copy of such proposal, if it is in writing, or otherwise a summary of the material terms thereof. If the board of directors of the Company Parties determines, in good faith, upon the advice of its outside legal advisors, to exercise a Fiduciary Out, the Company Parties shall notify counsel to the Consenting Creditors within two (2) Business Days following such determination. Upon any determination by any Company Party to exercise a Fiduciary Out (as defined below), the other Parties to this Agreement shall be immediately and automatically relieved of any obligation to comply with their respective covenants and agreements herein in accordance with Section 13.06 hereof.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Chapter 11 Plan Support Agreement (Uniti Group Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with outside counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent such Person or Persons determine in good faith that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement.
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) Section 8.01 and 7.01this Section 8.02, each Company Party and their respective its directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) consider, respond to, and facilitate access to information in response to unsolicited Alternative Restructuring Transaction Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or that (i) provides an unsolicited Alternative Transaction Proposal, (ii) executes and delivers a Confidentiality Agreement (which Confidentiality Agreement shall permit the Company to share any copies of the Alternative Transaction Proposals, the status of any discussions, and the identity of any counterparty with the Consenting Stakeholders and their respective advisors), and (iii) requests such information; and (c) enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) into, maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) to, or otherwise cooperate with, assistany inquiries or any proposals regarding an unsolicited Alternative Transaction Proposal if such person or entity determines, participate inin good faith upon advice of outside counsel that failure to take such action would be inconsistent with the fiduciary duties of such person under applicable Law. The Company Parties shall, to the extent permitted by any applicable confidentiality agreement or facilitate related obligation, provide to counsel to the Consenting Stakeholders, (A) a copy of any inquirieswritten Alternative Transaction Proposal (and notice and a description of any oral Alternative Transaction Proposal) within one (1) Business Day of the Company or their advisors receipt of such Alternative Transaction Proposal, proposals(B) provide counsel to each of the Consenting Stakeholders with regular updates as requested as to the status and progress of such Alternative Transaction Proposal to the extent permitted by any applicable confidentiality agreement, discussions, or negotiation of Alternative Restructuring Proposals; and (5C) enter into or continue discussions or negotiations with holders respond promptly to information requests and questions from counsel to each of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Consenting Stakeholders relating to such Alternative Restructuring ProposalsTransaction Proposal.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. (a) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, Party to take any action or to refrain from taking any action with respect to the Restructuring Transactions (including terminating this Agreement under Section 12) to the extent such Company Party or the Governing Body of a Company Party determines, based on the advice of counsel, that taking or failing to take refraining from taking such action action, as applicable, would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, . The Company Parties shall give prompt written notice to the Consenting Creditors and Ares of any such action or inaction determination made in accordance with this Section 7.03(a). This Section 7.03(a) shall not impede any Party’s right to terminate this Agreement pursuant to such exercise Section 12, including, for the avoidance of fiduciary duties shall not be deemed doubt, Ares or the Consenting Creditors’ rights to constitute a breach of this Agreementterminate in accordance with Section 12.01.
7.02. (b) Notwithstanding anything to the contrary in this Agreement, but subject to the terms upon receipt of Sections 6.01(j) and 7.01an Alternative Restructuring Proposal, each Company Party and their respective directors, managers, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives (including any Governing Body members) shall have the rights right to (1) consider, respond toconsistent with their fiduciary duties, and facilitate such Alternative Restructuring ProposalsProposal; (2) provide access to non-public information concerning provided that if any Company Party receives an Alternative Restructuring Proposal, then such Company Party shall (A) within one calendar day of receiving such proposal, notify the Ad Hoc Group Advisors and Ares Advisors of the receipt of such proposal and deliver a copy of such proposal to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entitythe Ad Hoc Group Advisors and Ares Advisors; (3B) maintain or continue discussions or negotiations provide the Ad Hoc Group Advisors and Ares Advisors with respect regular updates as to the status and progress of such Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsProposal; and (5C) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding use commercially reasonable efforts to respond promptly to reasonable information requests and questions from the Restructuring Transactions or Ad Hoc Group Advisors and Ares Advisors relating to such Alternative Restructuring ProposalsProposal. If the Company Parties decide to file, support, make a written proposal or counterproposal to any party relating to an Alternative Restructuring Proposal, the Company Parties must provide notice to the Ad Hoc Group Advisors and Ares Advisors prior to taking any such action. Upon receipt of such notice, the Required Consenting Creditors and Ares shall have the right to terminate this Agreement pursuant to Section 12.01(dd) of this Agreement.
7.03. (c) Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (di) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the implementation of the Restructuring Transactions; (ii) affect the ability of any Company Party to consult with any Consenting Creditors, Ares, or any other party in interest in the Chapter 11 Cases (eincluding any official committee and the United States Trustee); or (iii) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. (i) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section (i) shall not be deemed to constitute a breach of this Agreement.
7.02. (ii) Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section (i)), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposalsalternative proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposalsalternative proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation negotiations of Alternative Restructuring Proposalsalternative proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Term Lender), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposalsalternative proposals.
7.03. (iii) Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8 shall not be deemed to constitute a breach of this AgreementAgreement (other than a failure to comply with this Section 8); provided, that the Company Parties shall notify the Consenting Noteholders in writing promptly in the event of any such determination (and in any event no later than twenty-four (24) hours following such determination).
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01Section 8.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to:
(a) consider and respond to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; ;
(2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; ;
(3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; and
(4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Noteholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided, that the Company Parties shall (x) provide a copy of any written Alternative Restructuring Proposal (and notice of, and a written summary of, any oral Alternative Restructuring Proposal) within twenty-four (24) hours of the Company Parties’ or their advisors’ receipt of such Alternative Restructuring Proposal to the Noteholder Group Advisors and (y) provide such information to the Noteholder Groups Counsels as reasonably requested by the Consenting Noteholders or as necessary to keep the Consenting Noteholders contemporaneously informed as to the status and substance of such discussions.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Frontier Communications Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions or the Sale Transaction to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this AgreementAgreement (other than a failure to comply with this Section 7); provided that the Company Parties shall notify counsel to the Consenting Stakeholders in writing promptly in the event of any such determination (and in any event no later than two (2) Business Days following such determination).
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests (including any Consenting Stakeholder), any other party in a Company Party interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that the Company Parties shall (x) provide a copy of any written Alternative Restructuring Proposal (and notice of, and a written summary of, any oral Alternative Restructuring Proposal) within two (2) Business Days of the Company Parties’ or their advisors’ receipt of such Alternative Restructuring Proposal to Xxxxxxxxx and Milbank and (y) provide such information to Milbank as reasonably requested by the Lender Group or as necessary to keep the Lender Group reasonably informed as to the status and substance of such discussions.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, Transactions or the Sale Transaction; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counselupon advice of counsel to the Company Parties, to continue performing under this Agreement, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with cause such Company Party or the board of directors, board of managers or similar governing body of a Company Party to violate applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything At all times prior to the contrary date on which the Company Parties enter into any definitive agreement in this Agreementrespect of an Alternative Restructuring Proposal that a majority of the board of directors, but subject board of managers or similar governing body of a Company Party determines in good faith consistent with its fiduciary duties, after receiving advice from counsel to the terms of Sections 6.01(jCompany Parties, is a proposal that represents a higher or otherwise better recovery to the Company’s stakeholders than the Restructuring Transactions contemplated herein and in the Plan Term Sheet, the Company Parties shall (x) and 7.01provide to Akin Gump, each Company Party and their respective directorsWhite & Case, officersPJT Partners, employees, investment bankers, attorneys, accountants, consultantsXxxxx Day, and other advisors Ducera a copy of any written offer or representatives: shall have the rights to proposal (1and notice and a description of any oral offer or proposal) consider, respond to, and facilitate for such Alternative Restructuring Proposals; Proposal, in each case, identifying the Person making such Alternative Restructuring Proposal and specifying in detail the material terms and conditions of such Alternative Restructuring Proposal within two (2) Business Day of the Company Parties’ or their advisors’ receipt of such offer or proposal and (y) provide access such information to non-Akin Gump, White & Case, PJT Partners, Xxxxx Day, and Ducera regarding such discussions (including copies of any materials provided to such parties hereunder) as necessary to keep Akin Gump, White & Case, PJT Partners, Xxxxx Day, and Ducera contemporaneously informed as to the status and substance of such discussions. The Company Parties shall have first exercised their right in accordance with Section 11.03(d) of this Agreement to declare a termination event prior to the date on which the Company Parties enter into a definitive agreement in respect of such an Alternative Restructuring Proposal or make a public information concerning announcement regarding their intention to do so. Upon any determination by any Company Party to exercise a fiduciary out, the other Parties to this Agreement shall be immediately and automatically relieved of any Entity or enter into confidentiality obligation to comply with their respective covenants and agreements or nondisclosure agreements herein in accordance with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Alternative Restructuring ProposalsSection 11.07 hereof.
7.037.02. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (CBL & Associates Limited Partnership)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement.
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) Section 8.01 and 7.01, Section 12 each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to:
(1a) consider, respond to, and facilitate any Alternative Restructuring Proposals; Proposals (or inquiries or indications of interest with respect thereto), provided that if any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring Proposal, within two (2) Business Days of receipt thereof, the Company Party shall notify (with email being sufficient) counsel to the RBL Agent, the DIP Agent, Second Lien Ad Hoc Committee, and Convertible Ad Hoc Group of any such proposal or expression of interest, with such notice to include a copy of such proposal if it is in writing, or otherwise a summary of the material terms thereof;
(b) provide access to non-public information concerning any Company Party to any person or Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; person or Entity in connection with any Alternative Restructuring Proposal (3or inquiries or indications of interest with respect thereto);
(c) maintain or continue engage in discussions or negotiations with respect to Alternative Restructuring ProposalsProposals (or inquiries or indications of interest with respect thereto); and
(4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5d) enter into or continue discussions or negotiations with holders of Company Claims against or Equity Interests (including any Consenting Creditor), any other party in a Company Party interest in the Chapter 11 Cases (including any official committee or the United States Trustee), or any other person or Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that the Company Parties shall, with respect to any Alternative Restructuring Proposal that a majority of a Company Party’s Board of Directors determines in good faith and following consultation with counsel is a bona fide committed proposal that represents a higher or otherwise better economic recovery to the Company’s stakeholders than the Restructuring taken as a whole, (x) provide a copy of any such Alternative Restructuring Proposal, if it is in writing or otherwise a summary of the material terms thereof, to the advisors to the RBL Agent, the DIP Agent, and the Second Lien Ad Hoc Committee within two (2) Business Days of such determination, and (y) provide such information necessary to the advisors to the RBL Agent, the DIP Agent, and the Second Lien Ad Hoc Committee regarding such discussions as necessary to keep the RBL Agent, the DIP Agent, and the Second Lien Ad Hoc Committee contemporaneously informed as to the status and substance of such discussions. Upon any determination by any Company Party to exercise a fiduciary out, the other Parties to this Agreement shall be immediately and automatically relieved of any obligation to comply with their respective covenants and agreements herein in accordance with Section 12.05 hereof.
7.038.03. Nothing in this Agreement shall shall:
(a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, implementation of the Restructuring; or
(eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Denbury Resources Inc)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement; provided, it is agreed that any such action that results in a termination of this Agreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 12.05 hereof.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) considerreceive, analyze, discuss, respond to, facilitate, and facilitate negotiate any unsolicited Alternative Restructuring Proposals; (2) provide access to non-public information concerning Proposals received by any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsParty; and (5b) enter into or continue discussions or negotiations with holders of Claims against Company Claims/Interests (including any Consenting Noteholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or Equity Interests in a Company Party any other Entity regarding the Restructuring Transactions or Transactions. If any Company Party receives an Alternative Restructuring ProposalsProposal, then such Company Party shall, within two (2) Business Days of receiving such proposal, provide counsel to the Ad Hoc Noteholder Group with all documentation received in connection with such Alternative Restructuring Proposal (or, if such proposal was not made in writing, a reasonably detailed summary of such proposal), including the identity of the person or group of persons involved and reasonable updates as to the status and progress of such Alternative Restructuring Proposal, and such Company Party shall respond promptly to reasonable information requests and questions from the Ad Hoc Group Advisors relating to such Alternative Restructuring Proposal.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Party City Holdco Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement (other than solely for the purpose of establishing the occurrence of an event that may give rise to a termination right under Section 11.01). The Company Parties shall give prompt written notice to the Consenting Stakeholders of any determination made in accordance with this Section 7.01. This Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 11 of this Agreement, including on account of any action or inaction a Company Party or a governing body of a Company Party may take pursuant to this Section 7.01.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01Section 7.01 of this Agreement, each Company Party and their respective its directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) consider, respond to, and facilitate unsolicited Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain maintain, or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of unsolicited Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against any Company Claim/Interest (including any Consenting Creditor), any other party in interest, or Equity Interests in a Company Party any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided, that the Company Parties shall not seek or solicit any Alternative Restructuring Proposal; provided, further, that the Company Parties shall provide to the Lender Representatives (a) copies of any such Alternative Restructuring Proposal no later than one (1) Business Day following receipt thereof by the Company Parties or their advisors and (b) such other information (including copies of any materials provided to or from any person making an Alternative Restructuring Proposal) as necessary to keep the Lender Representatives contemporaneously informed as to the status and substance of discussions related thereto.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Centric Brands Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring ProposalsProposals in good faith and in accordance with any applicable fiduciary duties; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Senior Noteholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals. If any Company Party receives a written or oral proposal or expression of interest regarding any Alternative Restructuring Proposal that a majority of the board of directors, board of managers, or such similar governing body of any Company Party determines in good faith and following consultation with counsel is a bona fide committed proposal that represents higher or otherwise better economic recovery to the Company’s stakeholders than the Restructuring Transactions taken as a whole, within five (5) Business Days, the Company Party shall notify (with email being sufficient) counsel to the Senior Notes of any such proposal or expression of interest, with such notice to include a copy of such proposal, if it is in writing, or otherwise a summary of the material terms thereof. If the board of directors of the Company Parties decides to exercise a Fiduciary Out (as defined herein), the Company Parties shall notify counsel to the Consenting Senior Noteholders within two (2) Business Days of such decision. Upon any determination by any Company Party to exercise a Fiduciary Out, the other Parties to this Agreement shall be immediately and automatically relieved of any obligation to comply with their respective covenants and agreements herein in accordance with Section 11.05 hereof.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement.
7.04. The Company Parties, (f) require to the extent enforceable, waive any Company Party right to incur any material financial or other material liability other than as assert that the exercise of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code and expressly described in stipulate and consent hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, or (g) prohibit any Company Party from taking any action to the extent the Bankruptcy Court determines that such relief is not inconsistent with this Agreementrequired.
Appears in 1 contract
Samples: Restructuring Support Agreement (Extraction Oil & Gas, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, Party to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent that it determines in good faith, after consulting with outside counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 9.01 shall not be deemed to constitute a breach of this Agreement. If a Company Party, in compliance with this Section 9.01, determines to take or refrain from taking any action, it shall promptly (but, in any event, within forty-eight hours after such determination) provide written notice to the Required Consenting Parties and the Required Consenting Unsecured Creditors of such determination (which notice shall include a reasonable description of the action that such Company Party has determined not to take or to not refrain from taking, as well as a reasonably detailed explanation for such determination).
7.029.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, agents, and other advisors or representatives: representatives shall have the rights to right to: (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2a) provide access to non-public information concerning any Company Party to any Entity or enter into that submits an unsolicited Alternative Restructuring Proposal and executes and delivers a reasonable and customary confidentiality agreements or nondisclosure agreements agreement with any Entitythe Company Parties; (3b) receive, respond to, and maintain or and continue discussions or negotiations with respect to such unsolicited Alternative Restructuring Proposals; (4) otherwise cooperate withProposals if the board of directors, assist, participate inboard of managers, or facilitate similar governing body of such Company Party determines in good faith, upon advice of outside counsel, that any inquiries, proposals, discussions, or negotiation of such Alternative Restructuring ProposalsProposals constitutes or could reasonably be expected to result in a Superior Transaction and the failure of the Company Parties to pursue such Alternative Restructuring Proposal would be inconsistent with the fiduciary duties of the members of such board or governing body under applicable Law (a “Superior Proposal”); and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party any Consenting Party, any official committee and/or the United States Trustee regarding the Restructuring Transactions or any unsolicited Alternative Restructuring ProposalsProposal. The Company Parties shall (i) provide notice of any Alternative Restructuring Proposal to the Consenting Parties within one Business Day after the time of receiving such Alternative Restructuring Proposal, (ii) provide to counsel to the Consenting Creditors, on a “professional eyes only” basis, and the Strategic Investor (A) a copy of any written Alternative Restructuring Proposal (and notice and a description of any oral Alternative Restructuring Proposal), if not barred under any applicable confidentiality agreement between any Company Party and the submitting party or such submitting party otherwise consents or (B) a summary of the material terms thereof, if any Company Party is bound by a confidentiality agreement with, or other known contractual or legal obligation of confidentiality to, the submitting party that would prohibit the Company Parties from providing counsel to the Consenting Creditors and the Strategic Investor with a copy of any written Alternative Restructuring Proposal, in each case within one Business Day of the Company Parties or their advisors receipt of such Alternative Restructuring Proposal, (iii) notify the Consenting Parties promptly (and in any event no later than twenty-four hours following such determination) if the board of directors, board of managers, or similar governing body of any Company Party determines that an Alternative Restructuring Proposal is a Superior Proposal, and (iv) promptly provide such information to counsel to the Consenting Creditors and the Strategic Investor regarding such discussions or any actions or inaction pursuant to this Section 9.02 (including copies of any materials provided to, or provided by, the Company Parties with respect to the applicable Alternative Restructuring) as necessary to keep counsel to the Consenting Parties reasonably contemporaneously informed as to the status and substance of the foregoing. On or after the Execution Date, the Company Parties shall not enter into a confidentiality or nondisclosure agreement with any Entity that submits an unsolicited Alternative Restructuring Proposal that bars or restricts any Company Party from providing a copy of any written Alternative Restructuring Proposal (or notice and a description of any oral Alternative Restructuring Proposal) to counsel to the Consenting Creditors and the Strategic Investor. If as of the Execution Date any Company Party is party to an existing applicable confidentiality agreement with any Entity that submits an unsolicited Alternative Restructuring Proposal that bars such Company Party from providing a copy of any such written Alternative Restructuring Proposal (or notice and a description of any oral Alternative Restructuring Proposal), the Company Parties shall use commercially reasonable efforts to obtain the consent of such submitting Entity to provide counsel to the Consenting Creditors and the Strategic Investor a copy of such written Alternative Restructuring Proposal (or notice and a description of any oral Alternative Restructuring Proposal). If the Company Parties determine that an Alternative Restructuring Proposal is a Superior Proposal, the Consenting Parties shall be provided five Business Days after receipt of such notice to propose modifications to the Restructuring Transactions and the Company Parties shall engage in good faith in discussions and negotiations regarding such modifications before terminating this Agreement pursuant to Section 13.02(d).
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Confidentiality Agreement
Additional Provisions Regarding Company Parties’ Commitments. 7.019.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, Party to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent it determines in good faith, upon advice of outside counsel, that the taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 9.01 shall not be deemed to constitute a breach of this AgreementAgreement other than for purposes of determining whether a breach of this Agreement by a Company Party has occurred that would entitle the Consenting Creditor Parties to terminate this Agreement pursuant to Section 13.01(a), Section 13.02(a) or Section 13.03(a), as applicable.
7.029.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective its directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, discuss and facilitate negotiate unsolicited Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter that enters into confidentiality agreements a reasonable and customary Confidentiality Agreement or nondisclosure agreements agreement with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsCompany Party; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Term Lender), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring ProposalsTransactions.
7.039.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial fact, or other material liability other than as expressly described in thing is a breach of, or is inconsistent with, this Agreement; or (c) abrogate the rights, power, or duties of the Company Parties (gacting through their respective directors and officers) prohibit any Company Party from taking any action that is not inconsistent with this Agreementto make independent business decisions in the exercise of their fiduciary duties.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ultra Petroleum Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreementherein, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, membersdirectors, managers, or officers or any similar governing body other fiduciary of a Company Party, after consulting with counsel, Debtor to take any action action, or to refrain from taking any action action, with respect to the Restructuring Transactions to the extent such person or persons determines, based on the advice of counsel, that taking such action, or failing to take refraining from taking such action action, as applicable, would be inconsistent with applicable Law law or its fiduciary obligations under applicable Lawlaw; provided, and however, that it is agreed that any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute that results in a breach termination of this AgreementAgreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 12 hereof.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (a) receive and discuss and/or analyze unsolicited Alternative Restructuring Proposals, provided that, if any Company Party receives an unsolicited Alternative Restructuring Proposal, then such Company Party shall (w) within one (1) considerBusiness Day of receiving such proposal, respond to, and facilitate provide the Ad Hoc Group of Secured Noteholders Advisors with all documentation received in connection with such Alternative Restructuring ProposalsProposal, including the identity of the person or group of persons involved, provided that such notice shall be delivered on a confidential and professionals’ eyes only basis; (2x) provide the Ad Hoc Group of Secured Noteholders Advisors with reasonable updates as to the status and progress of such Alternative Restructuring Proposal; (y) respond promptly to reasonable information requests and questions from the Ad Hoc Group of Secured Noteholders Advisors relating to such Alternative Restructuring Proposal; and (z) if any Company Party decides, in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal in accordance with Sections 8.01 and 12.02(b), the Company Parties shall provide prompt written notice (with email being sufficient) to the Consenting Creditors; (b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring ProposalsTransactions.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (FTS International, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, Party to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent that it determines in good faith, after consulting with outside counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement. If a Company Party, in compliance with this Section 8.01, determines to take or refrain from taking any action, it shall promptly (but, in any event, within forty-eight (48) hours after such determination) provide written notice to the Required Consenting Creditors of such determination (which notice shall include a reasonable description of the action that such Company Party has determined not to take or to not refrain from taking, as well as a reasonably detailed explanation for such determination).
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2a) provide access to non-public information concerning any Company Party to any Entity or enter into that provides an unsolicited Alternative Restructuring Proposal and executes and delivers a reasonable and customary confidentiality agreements or nondisclosure agreements agreement with any Entity; the Company Parties, (3b) receive, respond to, and maintain or and continue discussions or negotiations with respect to such unsolicited Alternative Restructuring Proposals; (4) otherwise cooperate withProposals if the board of directors, assist, participate inboard of managers, or facilitate any inquiriessimilar governing body of such Company Party determines in good faith, proposalsupon advice of outside counsel, discussionsthat failure to take such action would be inconsistent with the fiduciary duties of the members of such board or governing body under applicable Law, or negotiation of Alternative Restructuring Proposals; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party any Consenting Creditor, any official committee and/or the United States Trustee regarding the Restructuring Transactions or any unsolicited Alternative Restructuring Proposals.Proposal. The Company Parties shall (i) provide to counsel to the Consenting Creditors, on a professional eyes only basis, (1) a copy of any written Alternative Restructuring Proposal (and notice and a description of any oral Alternative Restructuring Proposal), if not barred under any applicable confidentiality agreement between any Company Party and the submitting party or such submitting party otherwise consents or (2) a summary of the material terms thereof, if any Company Party is bound by a confidentiality agreement with, or other known contractual or legal obligation of confidentiality to, the submitting party that would prohibit the Company Parties from providing counsel to the Consenting Creditors with a copy of any written Alternative Restructuring Proposal, in each case within one (1) Business Day of the Company Parties or their advisors receipt of such Alternative Restructuring Proposal, and (ii) promptly provide such information to counsel to the Consenting Creditors regarding such discussions or any actions or inaction pursuant to this Section
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Confidentiality Agreement
Additional Provisions Regarding Company Parties’ Commitments. 7.01. (a) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent such Company Party, board of directors, board of managers, or similar governing body of a Company Party believes in good faith, after consulting with counsel, that the taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 6.03(a) shall not be deemed to constitute a breach of this Agreement; provided that any Company Party that exercises its fiduciary duties to take any action or to refrain from taking any action as contemplated by the foregoing shall provide prompt written notice of such action or inaction to counsel to the Consenting Stakeholders within two (2) Business Days following any such action or inaction; provided further nothing in this Section 6.03(a) shall impede any Party’s right to terminate this Agreement pursuant to Section 10, including, for the avoidance of doubt, the Consenting Stakeholders’ rights to terminate in accordance with Section 10.01.
7.02. (b) Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 6.03(a)), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to: (a) consider or respond to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; provided, that if any Company Party receives a written proposal or expression of interests regarding any Alternative Restructuring Proposal, then within two (2) Business Days of receipt thereof, the Company Party shall notify (with email being sufficient) counsel to the Consenting Stakeholders and DIP Agent of any such proposal or expression of interest, with such notice to include a copy of such proposal if it is in writing, or otherwise a summary of the material terms thereof; (b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided, that the Company Parties shall provide copies of any such Alternative Restructuring Proposal to the financial advisors and counsel of the Consenting Stakeholders no later than two (2) Business Days following receipt thereof by the Company Parties or their advisors and (f) enter into or continue discussions or negotiations with holders of Company Claims/Interests (including any Consenting Stakeholder) regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that if any Company Party receives an unsolicited Alternative Restructuring Proposal, then such Company Party shall (i) provide such information to the advisors to the Consenting Stakeholders and DIP Agent regarding such discussions as is reasonably necessary to keep the Consenting Stakeholders and DIP Agent reasonably informed as to the status and substance of such discussions, and (ii) use commercially reasonable efforts to respond promptly to information requests and questions from counsel to the Consenting Stakeholders and DIP Agent relating to such proposal.
7.03. (c) Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Oasis Petroleum Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions Transactions, including terminating this Agreement pursuant to Section 12.02(b), to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided that this Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12, including, for the avoidance of doubt, the Consenting Noteholder’s rights to terminate in accordance with Section 12.01; provided, further, that the Company Parties shall provide notice as soon as reasonably practicable (before or after) to the Ad Hoc Group (with email to Xxxxxx Xxxxx being sufficient) of (a) any such action or inaction in reliance on this Section 7 or (b) the board of directors, board of managers, or such similar Governing Body of any Company Party having made a determination to terminate this Agreement pursuant to Section 12.02(b).
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) solicit, encourage, consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-non- public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate facilitate, and respond to any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Noteholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreementherein, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, membersdirectors, managers, or officers or any similar governing body other fiduciary of a Company Party, after consulting with counsel, Debtor to take any action action, or to refrain from taking any action action, with respect to the Restructuring Transactions to the extent such person or persons determines, based on the advice of counsel, that taking such action, or failing to take refraining from taking such action action, as applicable, would be inconsistent with applicable Law law or its fiduciary obligations under applicable Lawlaw; provided, and however, that it is agreed that any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute that results in a breach termination of this AgreementAgreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 12 hereof.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (a) receive and discuss and/or analyze unsolicited Alternative Restructuring Proposals, provided that, if any Company Party receives an unsolicited Alternative Restructuring Proposal, then such Company Party shall (w) within one (1) considerBusiness Day of receiving such proposal, respond to, provide the Ad Hoc Group of Secured Noteholders Advisors and facilitate the Ad Hoc Group of Term Loan Lender Advisors with all documentation received in connection with such Alternative Restructuring ProposalsProposal, including the identity of the person or group of persons involved, provided that such notice shall be delivered on a confidential and professionals’ eyes only basis; (2x) provide the Ad Hoc Group of Secured Noteholders Advisors and the Ad Hoc Group of Term Loan Lender Advisors with reasonable updates as to the status and progress of such Alternative Restructuring Proposal; (y) respond promptly to reasonable information requests and questions from the Ad Hoc Group of Secured Noteholders Advisors and the Ad Hoc Group of Term Loan Lender Advisors relating to such Alternative Restructuring Proposal; and (z) if any Company Party decides, in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal in accordance with Sections 8.01 and 12.02(b), the Company Parties shall provide prompt written notice (with email being sufficient) to the Consenting Creditors; (b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5c) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring ProposalsTransactions.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (FTS International, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions Transactions, including terminating this Agreement pursuant to Section 12.02(b), to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, Law and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided that this Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12, including, for the avoidance of doubt, the Consenting Creditors’ rights to terminate in accordance with Section 12.01; provided further that the Company Parties shall provide notice as soon as reasonably practicable (before or after) to the Ad Hoc Group (with email to Xxxxxx Xxxxx being sufficient) and the RCF Agent (with email to Shearman being sufficient) of (a) any such action or inaction in reliance on this Section 7 or (b) the board of directors, board of managers, or such similar Governing Body of any Company Party having made a determination to terminate this Agreement pursuant to Section 12.02(b).
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) solicit, encourage, consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate facilitate, and respond to any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with upon advice of external counsel, to continue performing under this Agreement, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with cause such Company Party or the board of directors, board of managers or similar governing body of a Company Party to violate applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything At all times prior to the contrary date on which the Company Parties enter into any definitive agreement in this Agreementrespect of an Alternative Restructuring Proposal that a majority of the board of directors, but subject board of managers or similar governing body of a Company Party determines in good faith consistent with its fiduciary duties, after receiving advice from external counsel, is a proposal that represents a higher or otherwise better recovery to the terms Company’s stakeholders than the Restructuring Transactions contemplated herein and in the Restructuring Term Sheet, the Company Parties shall (x) provide to Akin Gump and PJT Partners a copy of Sections 6.01(jany written offer or proposal (and notice and a description of any oral offer or proposal) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: shall have the rights to (1) consider, respond to, and facilitate for such Alternative Restructuring Proposals; Proposal, in each case, identifying the Person making such Alternative Restructuring Proposal and specifying in detail the material terms and conditions of such Alternative Restructuring Proposal within two (2) Business Day of the Company Parties’ or their advisors’ receipt of such offer or proposal and (y) provide access such information to non-Akin Gump and PJT Partners regarding such discussions (including copies of any materials provided to such parties hereunder) as necessary to keep Akin Gump and PJT Partners contemporaneously informed as to the status and substance of such discussions. The Company Parties shall have first exercised their right in accordance with Section 11.02(c) of this Agreement to declare a termination event prior to the date on which the Company Parties enter into a definitive agreement in respect of such an Alternative Restructuring Proposal or make a public information concerning announcement regarding their intention to do so. Upon any determination by any Company Party to exercise a fiduciary out, the other Parties to this Agreement shall be immediately and automatically relieved of any Entity or enter into confidentiality obligation to comply with their respective covenants and agreements or nondisclosure agreements herein in accordance with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Alternative Restructuring ProposalsSection 11.05 hereof.
7.037.02. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (CBL & Associates Limited Partnership)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that, and to the extent that any such action or inaction pursuant to such exercise of fiduciary duties shall not is inconsistent with this Agreement or would be deemed to constitute a material breach of hereunder, including a determination to pursue an Alternative Restructuring Proposal, the Company Parties shall provide the Consenting Stakeholders, Counsel to the First Lien Ad Hoc Group, and Counsel to the Crossover Group with written notice two (2) Business Days prior to when any Company Party intends to take such action or inaction; provided, further, that any such inaction or action shall not impede any parties rights to terminate this AgreementAgreement pursuant to Section 12.
7.028.02. Notwithstanding anything to the contrary in this Agreement, but subject Subject to the terms of Sections 6.01(j) Section 8.01 and 7.01, Section 12 hereof each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall not solicit Alternative Restructuring Proposals, but shall have the rights to right to:
(1a) consider, respond to, and facilitate any Alternative Restructuring Proposals; Proposals (2or inquiries or indications of interest with respect thereto) that may be received by the Company Parties;
(b) provide access to non-public information concerning any Company Party to any Entity person or entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entityperson or entity in connection with any Alternative Restructuring Proposal (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; and
(3c) maintain or continue engage in discussions or negotiations with respect to Alternative Restructuring ProposalsProposals (or inquiries or indications of interest with respect thereto) that may be received by the Company Parties; and
(4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5d) enter into or continue discussions or negotiations with holders of Company Claims against and Interests (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee or Equity Interests in a Company Party the United States Trustee), or any other person or entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that the Company Parties shall (x) provide a copy of any written Alternative Restructuring Proposal (and notice of any oral Alternative Restructuring Proposal) within two (2) Business Days of the Company Parties’ or their advisors’ receipt of such Alternative Restructuring Proposal to the advisors to the First Lien Ad Hoc Group and the Crossover Group, and (y) provide such information necessary to the advisors to the First Lien Ad Hoc Group and the Crossover Group regarding such discussions as necessary to keep the First Lien Ad Hoc Group contemporaneously informed as to the status and substance of such discussions; provided, further, that nothing in this Section 8 shall limit the Company Parties’ ability to engage in marketing efforts, discussions, and/or negotiations with any party regarding an Alternative Exit Facility.
7.038.03. Nothing in this Agreement shall shall:
(a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, implementation of the Restructuring; or
(eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Jones Energy, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall provide written notice within two (2) calendar days to counsel to the Consenting Creditors of any determination made in accordance with this Section 8.01 to take or refrain from taking any action.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or new negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Creditor), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals. If (x) any Company Party receives an Alternative Restructuring Proposal, or any update to an Alternative Restructuring Proposal from the counterparty thereto, or (y) the board of directors, board of managers, or such similar governing body of any Company Party, in the exercise of its fiduciary duties, approves an Alternative Restructuring Proposal, then such Company Party shall within two (2) calendar days of receiving or approving such a proposal, provide counsel to the Consenting Creditors with all documentation received in connection with such Alternative Restructuring Proposal, and, in the case of clause (y), notice that such board of directors, board of managers, or such similar governing body of such Company Party has approved an Alternative Restructuring Proposal.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Venator Materials PLC)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require if a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with counsel determines that applicable Law or its fiduciary obligations under applicable LawLaw requires taking an action prohibited by this Agreement or refraining from taking an action required by this Agreement, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach the relevant Company Party may terminate this Agreement in accordance with Section 12.02(B) of this Agreement.
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, discussions or negotiation negotiations of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations negotiation with holders of Claims against or Equity Interests in a Company Party (including any Consenting First Lien Lenders), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, Restructuring; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (J C Penney Co Inc)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. (a) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body Governing Body of a Company Party, after consulting with counsel, Party to take any action or to refrain from taking any action with respect to the Restructuring Transactions (including terminating this Agreement under Section 12) to the extent such Company Party or the Governing Body of a Company Party determines, based on the advice of counsel, that taking or failing to take refraining from taking such action action, as applicable, would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, . The Company Parties shall give prompt written notice to the Consenting Creditors and Ares of any such action or inaction determination made in accordance with this Section 7.03(a). This Section 7.03(a) shall not impede any Party’s right to terminate this Agreement pursuant to such exercise Section 12, including, for the avoidance of fiduciary duties shall not be deemed doubt, Ares or the Consenting Creditors’ rights to constitute a breach of this Agreementterminate in accordance with Section 12.01.
7.02. (b) Notwithstanding anything to the contrary in this Agreement, but subject to the terms upon receipt of Sections 6.01(j) and 7.01an Alternative Restructuring Proposal, each Company Party and their respective directors, managers, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives (including any Governing Body members) shall have the rights right to (1) consider, respond toconsistent with their fiduciary duties, and facilitate such Alternative Restructuring ProposalsProposal; (2) provide access to non-public information concerning provided that if any Company Party receives an Alternative Restructuring Proposal, then such Company Party shall (A) within one calendar day of receiving such proposal, notify the Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors of the receipt of such proposal and deliver a copy of such proposal to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entitythe Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors; (3B) maintain or continue discussions or negotiations provide the Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors with respect regular updates as to the status and progress of such Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring ProposalsProposal; and (5C) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding use commercially reasonable efforts to respond promptly to reasonable information requests and questions from the Restructuring Transactions or Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors relating to such Alternative Restructuring ProposalsProposal. If the Company Parties decide to file, support, make a written proposal or counterproposal to any party relating to an Alternative Restructuring Proposal, the Company Parties must provide notice to the Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors prior to taking any such action. Upon receipt of such notice, the Required Consenting Creditors and Ares shall have the right to terminate this Agreement pursuant to Section 12.01(dd) of this Agreement.
7.03. (c) Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (di) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the implementation of the Restructuring Transactions; (ii) affect the ability of any Company Party to consult with any Consenting Creditors, Ares, or any other party in interest in the Chapter 11 Cases (eincluding any official committee and the United States Trustee); or (iii) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Recapitalization Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed not to constitute a breach of this Agreement.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01Section 7.01 of this Agreement, each Company Party and their respective its directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) solicit, consider, respond to, and facilitate Alternative Restructuring Transaction Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain initiate, maintain, or continue discussions or negotiations with respect to Alternative Restructuring Transaction Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Transaction Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against any Company Claim/Interest (including any Consenting Stakeholder), any other party in interest, or Equity Interests in a Company Party any other Entity regarding the Restructuring Recapitalization Transactions or Alternative Restructuring Transaction Proposals. At all times prior to the date on which the Company Parties enter into a definitive agreement in respect of an Alternative Transaction Proposal, the Company Parties shall provide counsel to the Term Loan Steering Committee and counsel to the Ad Hoc Committee of Unsecured Noteholders with updates on the status of discussions regarding any Alternative Transaction Proposal within three (3) Business Days of the Company Parties’ or their advisors’ receipt of any such Alternative Transaction Proposal. The Company Parties and/or the Company Parties’ advisors will make themselves reasonably available for weekly status update calls with counsel to the Ad Hoc Committee of Unsecured Noteholders and counsel to the Term Loan Steering Committee with respect to the foregoing.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Recapitalization Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Transaction Support Agreement (Neiman Marcus Group LTD LLC)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall give prompt written notice to the Consenting Stakeholders of any determination in accordance with this Section 7.01 to take or refrain from taking any action. This Section 7.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12.01(i).
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights right to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; , but may not solicit an Alternative Restructuring Proposal, offer, indication of interest or inquiry for one or more Alternative Restructuring Proposals, and in furtherance thereof, may: (2a) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3b) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4c) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5d) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals. If any Company Party receives an Alternative Restructuring Proposal, or any update to an Alternative Restructuring Proposal from the counterparty thereto, then such Company Party shall (A) within two (2) Business Days of receiving such proposal, provide counsel to the Consenting Stakeholders with all documentation received in connection with such Alternative Restructuring Proposal; (B) provide counsel to the Consenting Stakeholders with regular updates as to the status and progress of such Alternative Restructuring Proposal; and (C) respond promptly to reasonable information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Restructuring Proposal.
7.03. Nothing in this Agreement shall shall: (a) be construed impair or waive the rights of such Company Party to prohibit assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions; or (b) prevent such Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Chesapeake Energy Corp)
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement.. The Company Parties shall give prompt written notice to the Consenting Stakeholders of any determination made in accordance with this Section 8.01
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals; provided that if any Company Party receives an Alternative Restructuring Proposal, then such Company Party shall, on a professional eyes only basis (x) provide counsel to the Consenting Stakeholders a copy of any written offer or proposal (and notice and a description of any oral offer or proposal) for any Alternative Restructuring Proposal within two (2) days of the Company Parties’ or their advisors’ receipt of such offer or proposal, (y) provide such information to the foregoing advisors regarding any discussions relating to an Alternative Restructuring Proposal (including copies of any materials provided to such parties hereunder) as necessary to keep counsel to the Consenting Stakeholders reasonably informed as to the status and substance of such discussions, and (z) respond promptly to reasonable information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Restructuring Proposal.
7.038.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.018.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 8.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall give written notice to the Consenting Stakeholders within two (2) Business Days of any determination in accordance with this Section 8.01 to take or refrain from taking any action. This Section 8.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section 12.01(h).
7.028.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and 7.01Section 8.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to:
(1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2a) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; provided that if the Company Parties decide to make a written proposal or counterproposal to any party relating to any Alternative Restructuring Proposal, the Company Parties shall provide notice to the Plan Sponsor and the Consenting Ad Hoc Lenders contemporaneously with taking any such action;
(3b) maintain prior to the expiration of the Confirmation Order Milestone, the Company Parties may, directly or continue discussions or negotiations with respect to indirectly:
(i) (x) actively initiate, solicit, and induce any Acceptable Alternative Restructuring Proposals, or (y) consider, develop, facilitate, and respond to any Alternative Restructuring Proposals (or inquiries or indications of interest with respect thereto); or
(4ii) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; provided that if the Company Parties receive an Alternative Restructuring Proposal, or any update to an Alternative Restructuring Proposal from the counterparty thereto, then the Company Parties shall, and in each case subject to any confidentiality provisions contained therein:
a. within two (52) enter into or Business Days of receiving such proposal, provide Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor with such Alternative Restructuring Proposal; provided that after submission by the Plan Sponsor of a proposal in any postpetition bidding process, then the Company Parties may, in their sole discretion, elect not to provide Counsel to the Plan Sponsor and Counsel to the Ad Hoc Lender Group with such Alternative Restructuring Proposal;
b. upon written request, provide Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor with timely updates as to the status and progress of such Alternative Restructuring Proposals; and
c. respond to reasonable information requests and questions from Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor relating to such Alternative Restructuring Proposal; and
(iii) continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or an Alternative Restructuring ProposalsProposal (in each case, consistent with the terms hereof).
7.038.03. As soon as reasonably practicable (and in any case within one (1) Business Day) after the delivery of the Toggle Election Notice, the Company Parties shall publicly disclose the material terms of such Acceptable Alternative Restructuring Proposal by filing material documentation thereof with the Bankruptcy Court or otherwise.
8.04. Nothing in this Agreement shall shall:
(a) be construed impair or waive the rights of any Company Party to prohibit assert or raise any objection, to the extent not inconsistent with this Agreement, in connection with the Restructuring Transactions or implementation thereof;
(b) affect the ability of any Company Party to consult with any Consenting Stakeholder;
(c) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, ; or
(d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Washington Prime Group, L.P.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and Section 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: shall have the rights to (1) consider, respond to, and facilitate Alternative Restructuring Proposals; (2) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entity; (3) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party regarding the Restructuring Transactions or Alternative Restructuring Proposals.
7.03. Nothing in this Agreement shall (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, (e) prevent any Company Party from enforcing this Agreement, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreement, or (g) prohibit any Company Party from taking any action that is not inconsistent with this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of fiduciary duties this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided, it is agreed that any such action that results in a termination of this Agreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 11.06 hereof.
7.02. Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms of Sections 6.01(j) and Section 7.01), each Company Party and their its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) consider, respond to, and facilitate any unsolicited Alternative Restructuring ProposalsProposals received by the Company Party; (2b) provide access to non-public information concerning any Company Party to any Entity or and enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or Transactions. If any company Party receives an Alternative Restructuring ProposalsProposal, then such Company Party shall, within three (3) Business Days of receiving such proposal, (i) provide to the Consenting Stakeholders and their counsel with all documentation received in connection with such Alternative Restructuring Proposal (or, if such proposal was not made in writing, a reasonably detailed summary of such Alternative Restructuring Proposal), including the identity of the person or group of persons involved and reasonable updates as to the status and progress of such Alternative Restructuring Proposal, and (ii) respond promptly to reasonable information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Restructuring Proposal.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Additional Provisions Regarding Company Parties’ Commitments. 7.01. (a) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent Transactions, after consulting with outside counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and ; provided that such determination shall not impede any such action or inaction Party’s termination rights pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach Section 12 of this Agreement. The Company shall promptly notify each of the Consenting Stakeholders of any such determination within two (2) Business Days following such determination.
7.02. (b) Notwithstanding anything to the contrary in this Agreement, Agreement (but subject to the terms Section 7.03(a)), upon receipt of Sections 6.01(j) and 7.01an unsolicited Alternative Restructuring Proposal, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to right to: (1a) consider, respond to, and facilitate unsolicited Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements or nondisclosure agreements with any Entitythat (i) provides an unsolicited Alternative Restructuring Proposal, (ii) executes and delivers a Confidentiality Agreement, and (iii) requests such information; (3c) maintain or continue discussions or negotiations with respect to unsolicited Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders Holders of Claims against or Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or an unsolicited Alternative Restructuring ProposalsProposal; provided, that the Company Parties shall (x) notify the advisors to the Consenting Stakeholders, including, for the avoidance of doubt, Blank Rome, Bxxxxxxxx, Xxxx, Wxxxx, and Dxxxx Xxxx, of the existence of such Alternative Restructuring Proposal no later than three (3) Business Days following receipt thereof by any of the Company Parties, (y) provide prompt updates on the status of discussions regarding any Alternative Restructuring Proposal to the advisors to the Consenting Stakeholders, and (z) promptly provide such information as reasonably requested by the advisors to the Consenting Stakeholders in connection with any Alternative Restructuring Proposal, including any information provided to any party considering proposing an Alternative Restructuring Proposal to the extent not already provided to the Consenting Stakeholders. The Company Parties and/or the Company Parties’ advisors will make themselves reasonably available for separate periodic status update calls with the Consenting Stakeholders with respect to the foregoing.
7.03. (c) Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (QualTek Services Inc.)
Additional Provisions Regarding Company Parties’ Commitments. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided, and however, that to the extent that any such action or inaction pursuant to such exercise of fiduciary duties shall not is inconsistent with this Agreement or would be deemed to constitute a breach of this Agreementhereunder, including a determination to pursue an Alternative Restructuring Proposal, the Company Parties shall provide the Consenting Stakeholders with written notice two (2) Business Days prior to when it or they intend to take such action or inaction.
7.02. Notwithstanding anything to the contrary in this Agreement, but subject to the terms of Sections 6.01(j) and 7.01, each Company Party and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives: representatives shall have the rights to to: (1a) consider, respond to, and facilitate Alternative Restructuring Proposals; (2b) provide access to non-public information concerning any Company Party to any Entity or enter into confidentiality agreements Confidentiality Agreements or nondisclosure agreements with any Entity; (3c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (4d) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (5e) enter into or continue discussions or negotiations with holders of Claims against or Existing Equity Interests in a Company Party (including any Consenting Stakeholder), any other party in interest (including, if applicable, in the Chapter 11 Cases (including any official committee and the United States Trustee)), or any other Entity regarding the Restructuring Transactions or Alternative Restructuring Proposals. At all times prior to the date on which the Company Parties enter into a definitive agreement in respect of an Alternative Restructuring Proposal, the Company Parties shall provide to Akin Gump with updates on the status of any discussions regarding an Alternative Restructuring Proposal and a copy of any written offer or proposal for such Alternative Restructuring Proposal within three (3) Business Days of the Company Parties’ or their advisors’ receipt of such offer or proposal.
7.03. Nothing in this Agreement shall shall: (a) be construed to prohibit any Company Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, (b) be construed to prohibit any Company Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly or indirectly, with the Restructuring Transactions, (c) affect the ability of any Company Party to consult with any Consenting Stakeholder, (d) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, ; or (eb) prevent any Company Party from enforcing this AgreementAgreement or contesting whether any matter, (f) require any Company Party to incur any material financial or other material liability other than as expressly described in this Agreementfact, or (g) prohibit any Company Party from taking any action that thing is not a breach of, or is inconsistent with with, this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Parker Drilling Co /De/)
