Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to: (a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class; (b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment; (c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions; (d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions; (e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement; (f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent; (g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals; (h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made; (j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals; (k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH; (l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal; (m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized; (n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and (o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 4 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement, Restructuring Support Agreement (iHeartMedia, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other agreements required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(ke) use commercially reasonable efforts to provide draft copies of all Definitive Documents and any other material motions or applications or other material documents to be filed in the Term Loan/PGN Group Representatives and Term Lender Group Representatives Chapter 11 Cases to counsel to the Consenting Stakeholders, if reasonably practicable at least two (2) business days in advance of when the Company Parties intend to file such documents, and, without limiting any approval rights set forth in this Agreement, consult in good faith with regular access counsel to information the Consenting Stakeholders regarding the operations form and substance of CCOHany such proposed filing;
(lf) use commercially reasonable efforts timely file a formal objection to keep any motion filed with the 2021 Noteholder GroupBankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Term Lender GroupChapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, and Consenting Sponsors informed of any discussions regarding or (iii) dismissing the development of any Alternative Restructuring ProposalChapter 11 Cases;
(mg) use commercially reasonable efforts timely file a formal objection to maintain their good standing under any motion filed with the Laws Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the state or other jurisdiction in which they are incorporated or organizedCompany Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(nh) use commercially reasonable efforts to operate their business not engage in any material merger, consolidation, disposition, acquisition, investment, dividend, sale-leaseback, or similar transaction outside the ordinary course without the consent of the Required First Lien Lenders, except as provided in the ordinary course, taking into account the Restructuring TransactionsDefinitive Documents; and
(oi) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect subject to the Texas Litigation during terms of the Agreement Effective Period; providedDIP Orders or other order of the Bankruptcy Court, however, that to timely pay the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties reasonable and documented fees and expenses of the Consenting Senior Creditors each hereby agree Stakeholders pursuant to immediately seek an extension of such deadlineSection 7.03 hereof arising prior to and after the Petition Date, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingconsistent with all governing engagement agreements.
Appears in 2 contracts
Samples: Restructuring Support Agreement (Foresight Energy LP), Restructuring Support Agreement (Foresight Energy LP)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the Company Parties Filing Entities agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and timely consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use make commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use make commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 CaseBrazilian RJ Proceeding or Ancillary Proceeding) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Restructuring Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement, including the structuring and creation of intermediary holding companies in connection with the collateral and guarantee arrangements as described in the Term Sheet;
(f) pay and reimburse the Consenting Stakeholder advisors in accordance with the terms set forth in the Term Sheet;
(g) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders not already party hereto to the extent reasonably prudent, and to the extent the Company Parties receive any Joinders, notify the other Parties hereto of such Joinders;
(gh) pursue and take all steps reasonably necessary to (A) as soon as reasonably practicable, obtain orders of the Brazilian RJ Court in respect of the Restructuring Transactions, including obtaining entry of the Confirmation Order (including, if necessary, pursuant to Article 58 of the Brazilian Bankruptcy Law (an “Article 58 Approval”)), and the Recognition Orders in the Ancillary Proceedings, (B) prosecute and defend any appeals related to the order accepting the RJ filing, Confirmation Order or any Recognition Orders, (C) support and consummate the Restructuring Transactions in accordance with this Agreement, including the good-faith negotiation, preparation and filing of the Restructuring Documents; (D) execute and deliver any other required agreements to effectuate and consummate the Restructuring Transactions; and (E) complete the Restructuring Transactions;
(i) consult with the advisors to the Consenting Stakeholders and Shareholders regarding the implementation of the Restructuring Transactions and Transactions, including to timely file the development of Alternative Restructuring ProposalsPlan with the Brazilian RJ Court;
(hj) subject to any applicable confidentiality agreements, provide to counsel for the Consenting Stakeholders and Shareholders draft copies of all documents any Filing Entities intend to file with the Brazilian RJ Court or any court pursuant to any Ancillary Proceedings, at least five (5) Business Days (or, if such period is not practicably possible given unforeseen developments in the Brazilian RJ Proceeding or any Ancillary Proceedings, as early as practically possible) prior to making such filing, and to consult in good faith with such counsel regarding the form and substance of any such proposed filing;
(A) timely file a formal appeal to any decision issued by the Brazilian RJ Court (and/or a formal objection to any motion filed with the Brazilian RJ Court by a third party seeking such a decision)
(1) directing the appointment of any person with expanded powers to operate the Filing Entities’ businesses or a trustee, (2) converting the Brazilian RJ Proceeding to a falência proceeding or (3) dismissing the Brazilian RJ Proceeding, and (B) vigorously prosecute such appeals and/or objections (including taking action to timely lift any stay motions), including in courts of appeal as may be needed;
(l) subject to any applicable confidentiality agreements, participate in weekly (or as may otherwise be agreed to between the Filing Entities and counsel to the Consenting Stakeholders) calls with the advisors to the Consenting Stakeholders and Shareholders regarding the status and progress of the implementation of the Restructuring Transactions, including the Brazilian RJ Proceeding, any Ancillary Proceedings and the Filing Entities’ efforts with respect to confirmation of the Plan, and upon reasonable request of the Consenting StakeholdersStakeholders and Shareholders, inform the advisors to the Consenting Stakeholders and Shareholders as to: (i) the material business and financial (including liquidity) performance of the Filing Entities, (ii) the status of the Company’s participation in tenders with Petróleo Brasileiro S.A. — Petrobras (“Petrobras”); (iii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Restructuring Documents; and (iiiv) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholderany stakeholders, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange. The Filing Entities and their advisors shall use commercially reasonable efforts to notify counsel to the Consenting Stakeholders in advance which, if any, information and/or materials to be received in connection with such calls is being provided on an advisors-eyes-only, confidential, public or other basis;
(m) make commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions;
(n) without limitation of any other obligations hereunder, (i) cause the General Security Agreements and the Subordination and Assignment Agreements (as defined in each of the Credit Agreements) and any other applicable Financing Documents (as defined in the Credit Agreements), to be amended (and take all other actions reasonably required) to ensure that the security and other rights that the Lenders have as of the date hereof in respect of the Charter Agreements and the Bareboat Charter Agreements (as defined in each of the Credit Agreements) with Petrobras, also apply to any new charter agreement to which the Borrower is or becomes party (each, an “ALB Charter Agreement”) as of commencement of the effective period under any such new ALB Charter Agreement and in any event, no later than the Plan Submission Date, in accordance with applicable law;
(o) maintain in effect (unless otherwise agreed in writing by each party thereto) and comply with the terms and conditions of the Corporate Governance Agreement; provided that, without limitation of the foregoing, the Filing Entities shall deliver to the Consenting Stakeholders written notice of the occurrence of any breach, or any event that could reasonably be expected to result in a breach, under the Corporate Governance Agreement;
(p) comply with the terms and conditions of the ancillary proceedings support letter, dated as of the date hereof, by and among each Party hereto which shall at all times remain in full force and effect in accordance with its terms;
(q) subject to any applicable confidentiality agreements, inform counsel to the Consenting Stakeholders and Shareholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would could reasonably be expected to result in the termination of, this Agreement; (ii) any matter or circumstance which they know, that constitutes or suspect is likely, could reasonably be excepted to be constitute a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedingsproceedings of any Filing Entity or any of their Affiliates, or legal suit for payment of debt or securement of security from or by any person in respect of any Filing Entity or any Company Party; (iv) delivery of any notice of termination, suspension or delays in commencement of any of the Filing Entities’ charter agreements by a counterparty; (v) any breach of this Agreement (including a breach by any Company Party); Filing Entity) and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(jr) cause (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect Deed of Quiet Enjoyment relating to the Term Loan/PGN Group’s Brava Star rig (the “Shell Deed of Quiet Enjoyment”) and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development extent a deed of any Alternative Restructuring Proposalsquiet enjoyment is required pursuant to the QGEP charter agreement, the Deed of Quiet Enjoyment relating to the Laguna Star rig (the “QGEP Deed of Quiet Enjoyment”) to be signed and duly effective on terms satisfactory to the applicable lenders under the Brava Credit Agreement and the A&L Credit Agreement, respectively, by not later than February 25, 2019;
(ks) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use make commercially reasonable efforts to maintain their good standing under the Laws laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(ot) refrain from taking provide the Consenting 2024 Noteholders with prior written notice of any action whatsoever2024 Notes Charter Agreement, except as set forth in this Section 6.01(o), together with respect to company representations and a certificate of a duly authorized officer of the Texas Litigation during the Agreement Effective Period; provided, however, Company that to the extent any deadline, order, or proceeding requires any party to take any action such transaction was negotiated on an arm’s-length basis and is in the Texas Litigation during best interests of each entity owning the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding2024 Collateral Rigs.
Appears in 2 contracts
Samples: Backstop Commitment Agreement, Plan Support and Lock Up Agreement
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classInterests;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use make commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use make commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Scheme of Arrangement or Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and to the extent the Company Parties receive any Joinders, notify the Consenting Stakeholders of such Joinders;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions Transactions, including with respect to:
(i) the Implementation Mechanisms to be used in order to implement and consummate the development Restructuring Transactions, including whether to terminate or not initiate an Implementation Mechanism;
(ii) with respect to any Schemes of Alternative Restructuring ProposalsArrangement of the Credit Agreement Claims, the jurisdiction and steps for the launch of each such Schemes of Arrangement;
(iii) the identity of the Filing Entities in any Chapter 11 Cases; and
(iv) whether it is necessary or desirable for the Company Parties to seek any Ancillary Proceedings;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Consolidated Group; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedingsInsolvency Proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); ) and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) comply with their obligations under the CoCom Appointment Letter, as amended by the CoCom Extension Letter, and not terminate it (ior seek to reject it in any Chapter 11 Case) consult and coordinate other than in good faith accordance with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process its terms;
(k) participate in weekly (or as may otherwise be agreed to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that between the Company Parties receive with and counsel to the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriateCoCom) calls with the Term Loan/PGN Group Representatives advisors to the CoCom regarding the status and progress of the implementation of the Restructuring Transactions, including the Chapter 11 Cases and the Company Parties’ efforts with respect to confirmation of the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOHPlan;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use make commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(nm) use make commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions;
(i) provide counsel for the Consenting Lenders, Consenting Noteholders, and Commitment Parties a reasonable opportunity to review draft copies of all First Day Pleadings and, (ii) to the extent reasonably practicable, provide a reasonable opportunity to counsel to any Consenting Stakeholders materially affected by such filing to review draft copies of other documents that the Company Parties intend to file with the court sanctioning the Schemes of Arrangement or the Bankruptcy Court, as applicable;
(o) comply in all respects with the provisions of Request 1 (including but not limited to, the provisions of Request 1 relating to equal treatment of the Lenders under (and as defined in) the Credit Agreements), other than any amendments, or derogations from, the terms of Request 1:
(i) necessary to implement the Non-Consolidated Entity Amendments;
(ii) necessary to comply with the Bankruptcy Code or implement any other arrangement described in this Agreement (including the exhibits, annexes, and schedules hereto) that is to become effective before the Restructuring Effective Date;
(iii) necessary to permit the making of Permitted Newbuild Contract Payments (as defined in Request 1) pursuant to any Guaranteed Newbuild Contract up to US$200,000,000 in the aggregate, only to the extent the payment is funded from cash flows of the Company Parties; or
(iv) which may otherwise be agreed in writing by the Required Lenders, Majority Lenders, or Required Majority (as the case may be) under (and as defined in) each Credit Agreement; and
(op) refrain from taking any action whatsoeverperform their obligations under the SFL Charter Agreements, except as set forth including their timely payment of the respective charter hire in this Section 6.01(o)accordance with the terms thereof, with respect to until the Texas Litigation during the Agreement Restructuring Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingDate.
Appears in 2 contracts
Samples: Restructuring Support and Lock Up Agreement (North Atlantic Drilling Ltd.), Restructuring Support and Lock Up Agreement (Seadrill LTD)
Affirmative Commitments. Except as set forth Subject in all respects to Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support support, act in good faith, and take all steps actions reasonably necessary and desirable necessary, or desirable, or reasonably requested by the Required HPR Consenting Noteholders, to confirm the Plan implement and consummate the Restructuring Transactions as contemplated by this Agreement, including, but not limited to, (1) launching the Exchange Offer and commencing solicitation of the Plan on a dual track basis; (2) consummate the Restructuring Transactions through the Out-of-Court Restructuring (including using commercially reasonable efforts to satisfy the conditions to the Exchange Offer and the Out-of-Court Restructuring), (3) to the extent the Requisite Company Shareholder Vote has not been obtained or the Consent Threshold or other conditions of the Exchange Offer or the Out-of-Court Restructuring have not been satisfied so as to permit consummation of the Out-of-Court Restructuring prior to the Out-of-Court Restructuring Outside Date (as set forth on Schedule 1 hereto), promptly commencing the Chapter 11 Cases in order to implement the Plan; and (4) in the event the Chapter 11 Cases are commenced, obtaining the Bankruptcy Court’s approval of the Definitive Documents (as applicable), the solicitation of the Plan by means of the Disclosure Statement and related Solicitation Materials, confirmation of the Plan, and the consummation of the Restructuring Transactions pursuant to the Plan, in each case, in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable Milestones set forth on Schedule 1 hereto;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps necessary, or reasonably necessary and desirable requested by the Required HPR Consenting Noteholders, to address any such impediment, including, if the Restructuring Transactions are implemented through the In-Court Restructuring, (1) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, or (D) for relief that (x) is inconsistent with this Agreement, the Merger Agreement, or the Plan in any material respect, or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions; (2) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order modifying or terminating any Debtor’s exclusive right to file and/or solicit acceptances of a plan of reorganization; (3) timely filing a formal objection to any motion, application or proceeding filed with the Bankruptcy Court seeking standing to pursue claims or causes of action of the Debtors against any Consenting Stakeholder or any director, manager, officer or employee of, or lender to, or any consultant or advisor that is retained or engaged by, any of the Consenting Stakeholders; (4) timely filing a formal objection to any motion, application or proceeding challenging the issuance of the New Take Back Notes or the solicitation or consummation of those certain indenture amendments and the notes waivers pertaining to the change-in-control put contemplated in furtherance of the Restructuring Transactions; and (5) timely filing a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the Definitive Documents (or motion filed by such Person that seeks to interfere with the Definitive Documents);
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate execute, deliver, perform its obligations under, and consummate the Restructuring Transactions as transactions contemplated by by, this AgreementAgreement and the Definitive Documents;
(fd) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(ge) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform promptly notify counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: in writing (iemail being sufficient) of (1) the initiation, institution or commencement of any proceeding by a Governmental Entity or other Person against any of the Company Parties challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (2) any breach by any of the Company Parties in any respect of any of its obligations, representations, warranties or covenants set forth in this Agreement, (3) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or circumstance that has occurredto be set forth in) any of the Definitive Documents, including the Requisite Company Shareholder Vote, the conditions to consummation of the Exchange Offer, including the Consent Threshold, and other conditions precedent set forth in this Agreement and in the Merger Agreement, if applicable, to the consummation of the Merger, the Exchange Offer, or that is reasonably likely the Restructuring Transactions, incapable of being satisfied so as to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; Transactions prior to the Out-of-Court Restructuring Outside Date or the In-Court Restructuring Outside Date, as applicable, (iii4) the occurrence of a Termination Event, and/or (5) the receipt of notice from any notice Governmental Entity or other Person alleging that the consent of such Person is or may be required under any Organizational Document, material contract, permit, Law or otherwise in connection with the consummation of any commencement part of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madethe Restructuring Transactions;
(jf) (i) consult and coordinate in good faith with maintain the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing and legal existence of each Company Party under the Laws of the state or other jurisdiction in which they it is incorporated, organized or formed, except to the extent that the Restructuring Transactions are incorporated or organizedto be implemented through the In-Court Restructuring and any failure to maintain such Company Party’s good standing arises solely as a result of the filing of the Chapter 11 Cases;
(ng) conduct their businesses and operations in the ordinary course in a manner that is consistent with past practices and in compliance with Law; provided, however, that if any Company Party reasonably determines in good faith that the operation of its business in the ordinary course is not advisable due to possible health and safety concerns related to COVID-19, such determination and any actions taken or not taken as a result of such determination that are outside the ordinary course of its business and inconsistent with its past practices shall not be a breach of this Section 6.01(g) (but such Company Party shall promptly inform the HPR Consenting Noteholders’ Advisors of any such determination);
(h) provide prompt responses, whether by directing the Company Parties’ advisors to respond or otherwise, to reasonable diligence requests from HPR Consenting Noteholders’ Advisors for purposes of HPR Consenting Noteholders’ due diligence investigation in respect of the assets, liabilities, operations, businesses, finances, strategies, prospects and affairs of the Company Parties; provided, that this Section 6.01(h) shall not impose any obligation on the Company to issue any “cleansing letter” or otherwise publicly disclose material non-public information in connection with this Agreement; provided, further, that notwithstanding anything to the contrary herein, to the extent a Company Party and another Party have entered into a Confidentiality Agreement, the terms of such Confidentiality Agreement shall continue to apply and remain in full force and effect according to its terms, and this Agreement does not supersede any rights or obligations otherwise arising under such Confidentiality Agreements;
(i) provide, and direct their employees, officers, advisors, and other representatives to provide, to each of the HPR Consenting Noteholders and their respective legal and financial advisors: (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business; (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the HPR Consenting Noteholders and their respective legal and financial advisors; provided, however, notwithstanding the foregoing, in no circumstances shall a Company Party or its employees, officers, advisors, and other representatives be required to disclose or provide access to any information that would (x) adversely impact any attorney-client or similar privileges, (y) contravene any Applicable Law, including privacy laws, or (z) breach any confidentiality obligations due and owing to any party;
(j) use commercially reasonable efforts to operate their business in the ordinary course, taking into account obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(k) in the event of the In-Court Restructuring, provide draft copies of all material and substantive motions, documents and other pleadings to be filed in the Chapter 11 Cases, including, without limitation, the First Day Pleadings, to counsel to the HPR Consenting Noteholders as soon as reasonably practicable, but in no even less than two (2) Business Days prior to the date when the Company Parties plan to file such documents and, without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to the HPR Consenting Noteholders regarding the form and substance of any such proposed filing. Notwithstanding the foregoing, in the event that two (2) Business Days’ notice is not reasonably practicable under the circumstances, the Company Parties shall provide draft copies of any such motions, documents, or other pleadings to counsel to the HPR Consenting Noteholders as soon as otherwise reasonably practicable before the date when the Company Parties intend to file any such motion, documents, or other pleading;
(l) promptly pay the HPR Consenting Noteholders’ Advisors’ Expenses and (i) in the event of the In-Court Restructuring, pay all remaining outstanding HPR Consenting Noteholders’ Advisors’ Expenses at least one (1) day prior to the Petition Date, and (ii) pay all remaining outstanding HPR Consenting Noteholders’ Advisors’ Expenses at least one (1) Business Day prior to the Effective Date; and
(om) refrain from taking negotiate in good faith the material terms of the HPR RBL Amendment or the HPR RBL Payoff Letter, as applicable, and any action whatsoeverrelated documents and instruments (including in regard to or in connection with any indebtedness incurred or to be incurred, except as set forth including by BCEI, in this Section 6.01(o), any refinancing of the indebtedness under the HPR RBL Credit Agreement) with a goal of reaching agreement thereon with the HPR RBL Lenders prior to the commencement of the Exchange Offer and the solicitation with respect to the Texas Litigation during the Agreement Effective Period; providedPlan, however, that and provide counsel to the extent any deadline, order, Consenting HPR Noteholders with regular updates as to the status and progress (on not less than a weekly basis or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (xmore frequently as circumstances may require) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that negotiations together with current drafts of the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed HPR RBL Amendment or the applicable proceeding has not been abated HPR RBL Payoff Letter, as applicable, and any related documents and instruments (including in regard to or stayedin connection with any indebtedness incurred or to be incurred, including by BCEI, in any refinancing of the Company Parties may take any action necessary to preserve indebtedness under the HPR RBL Credit Agreement) as such documents and protect their rights in such proceedinginstruments are being negotiated.
Appears in 2 contracts
Samples: Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the Company Parties agree each Consenting Stakeholder and, as applicable, each Shareholder agrees to:
1 English-language translations of such documents (aincluding, for the avoidance of doubt, a certified copy of the approved Plan) shall be provided to each of the Consenting Stakeholders.
(i) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions and vote and exercise (or cause to be voted and exercised, as applicable) any powers or rights available to it (including in accordance with this Agreementany board, including by complying with Section 4 and Section 5 shareholders’ or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests and by electing necessary to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for implement the Restructuring Transactions;
(dii) use commercially reasonable efforts solely with respect to actively oppose and object each Consenting Stakeholder, so long as its vote has been properly solicited pursuant to the efforts Brazilian Bankruptcy Law and subject to any other restrictions imposed by applicable law, and to the extent not prohibited by applicable law, regulation, or order entered by a court of competent jurisdiction, (A) vote or cause to be voted all claims eligible to vote on the Plan under the Brazilian Bankruptcy Law that it, as of the Execution Date or later, holds, controls or has the ability to control (the “Eligible Claims”) to accept the Plan by casting its vote at the Creditors’ General Meeting, if any, including by submitting all necessary papers, authorizations, proxies and vote instructions to the judicial administrator and/or to their legal representatives and (B) not challenge such vote (or cause or direct such vote to be challenged), so long as, in each case, the Plan shall be substantially consistent with the terms of this Agreement and the Term Sheet and not have been modified in a manner that has, or could reasonably be expected to have (determined as of the date of any person seeking such modification) a material adverse effect on the rights of the Consenting Stakeholders without the prior written consent of the Consenting Stakeholders in accordance with Section 12; provided, however, that notwithstanding anything else herein, nothing in this Agreement shall oblige Bradesco to object tovote its LC Reimbursement Agreement Claims, delayit being understood that if Bradesco, impedein its sole discretion, elects to vote its LC Reimbursement Agreement Claims, then it will be obliged to vote to accept the Plan; provided further, that nothing in this Agreement shall prevent any Party from freely voting its Claims (accepting or take any rejecting the Plan) with respect to the Brazilian RJ Proceeding if this Agreement is terminated with respect to such Party;
(iii) support, not oppose and, as applicable under the laws of such ancillary jurisdiction, express approval for recognition of, the Brazilian RJ Proceeding (or other action relief as requested by the Filing Entities) in the Ancillary Proceedings as reasonably necessary or appropriate to interfere with give effect to or aid in the acceptance, implementation, or consummation of the Restructuring Transactions Plan or entry of the Recognition Orders;
(includingiv) give any notice, if applicableorder, the timely filing of objections instruction, or written responses in a Chapter 11 Case) direction to the extent such opposition or objection is reasonably applicable Agents necessary or desirable to facilitate implementation of give effect to the Restructuring Transactions;
(ev) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate implement the Restructuring Transactions as contemplated by Documents that are consistent with this AgreementAgreement to which it is required to be a party;
(fvi) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders solely with respect to the extent reasonably prudent;
(g) consult Shareholders, maintain its respective portion of the Shareholder Contribution deposited in full, in compliance with the advisors its respective Shareholder Contribution Agreement, and deliver to the Consenting Stakeholders regarding the implementation written notice at least two (2) Business Days prior to any withdrawal of all or any portion of the Restructuring Transactions and the development of Alternative Restructuring Proposalsdeposited Shareholder Contribution funds;
(hvii) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including solely with respect to each Consenting Lender, permit the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that Filing Entities to use the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect Cash Collateral, but only to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Groupextent expressly permitted under, and Consenting Sponsors informed of any discussions regarding subject to the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business terms and conditions set forth in the ordinary course, taking into account the Restructuring TransactionsCash Collateral Agreements; and
(oviii) refrain from taking any action whatsoevermaintain the Backstop Agreement in full force and effect, except as set forth in this Section 6.01(o), with respect subject to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingterms thereof.
Appears in 2 contracts
Samples: Backstop Commitment Agreement, Plan Support and Lock Up Agreement
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, subject to the terms and conditions hereof, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gf) consult with the advisors to provide counsel for the Consenting Stakeholders regarding a reasonable opportunity to review draft copies of (1) all First Day Pleadings and, (2) all other substantive pleadings and proposed orders that the implementation Company Parties intend to file with Bankruptcy Court, including all Definitive Documents;
(g) continue ordinary course practices to maintain good standing under the jurisdiction in which each Company Party and each of its subsidiaries is incorporated or organized and continue to operate the Restructuring Transactions business in the ordinary course of business customary in the normal course of ordinary operations consistent with past practice taking into account the Chapter 11 Cases and the development of Alternative Restructuring ProposalsTransactions;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to cooperate in good faith and coordinate with the Consenting Stakeholders as to: (i) to structure and implement the status Transactions in a tax efficient manner and progress take all reasonable actions necessary or reasonably requested by the Consenting Stakeholders to facilitate the consummation of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel negotiate in good faith and use commercially reasonable efforts to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) execute and deliver any event appropriate additional or circumstance alternative provisions or agreements to address any legal, financial, strategic or structural impediment that has occurredmay arise that would prevent, hinder, impede, delay, or that is be reasonably likely necessary to occur (and if it did so occur), that would permit any Party to terminate, or would result in effectuate the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide oppose any party or person taking or seeking to take any actions contemplated in Section 7.02 of this Agreement;
(k) pay in full and in cash all fees, costs, and expenses in accordance with Section 15.21 of this Agreement and the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOHCash Collateral Order(s);
(l) use commercially reasonable efforts timely file a formal objection to keep any motion filed with the 2021 Noteholder Group, Bankruptcy Court by a third party seeking the Term Lender Group, entry of an order: (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and Consenting Sponsors informed (4) of the Bankruptcy Code); (ii) converting any discussions regarding of the development Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; or (iii) dismissing any Alternative Restructuring Proposalof the Chapter 11 Cases;
(m) use commercially reasonable efforts timely file a formal objection to maintain their good standing under any motion filed with the Laws Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the state or other jurisdiction in which they are incorporated or organized;Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization intend to file with Bankruptcy Court, as applicable; and
(n) use commercially reasonable efforts to operate their business in comply with the ordinary courseterms, taking into account conditions, and obligations of the Restructuring Transactions; and
(oCash Collateral Order(s) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed once entered by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingBankruptcy Court.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7Section 8, during the Agreement Effective Period, the Company Parties agree to, and to cause their subsidiaries (if applicable) to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) support and take all steps necessary to facilitate solicitation of the Plan in accordance with this Agreement;
(c) to the extent any legal legal, tax, or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object Transactions or the Definitive Documents as provided herein, subject to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation terms of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsBackstop Commitment Agreement;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult provide Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor a reasonable opportunity (which to the extent reasonably practicable under the circumstances, shall be no less than two (2) Business Days) to review draft copies of all First Day Pleadings and any Definitive Documents, as applicable, prior to the date that the Company Parties intend to file such documents or pleadings with the advisors Bankruptcy Court;
(h) provide a reasonable opportunity (which to the extent reasonably practicable under the circumstances, shall be no less than two (2) Business Days) to counsel to any Consenting Stakeholders regarding Stakeholder materially affected by a Definitive Document to review draft copies of such Definitive Documents that the Company Parties intend to file with Bankruptcy Court;
(i) provide to each of the Consenting Stakeholders, and each of their respective professionals:
(i) reasonable access to the Company Parties’ books and records on reasonable advance notice to the Company Parties’ representatives during regular business hours and without disruption to the operation of the Company Parties’ business,
(ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons during regular business hours and without disruption to the operation of the Company Parties’ business, and
(iii) timely and reasonable responses to all reasonable diligence requests;
(j) oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the filing of timely objections or written responses) to the extent such opposition or objection is reasonably necessary to facilitate the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(hk) oppose and object to any motion, application, adversary proceeding or cause of action:
(i) seeking the entry of an order directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code);
(ii) seeking the entry of an order converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code;
(iii) seeking entry of an order dismissing the Chapter 11 Cases; or
(iv) seeking entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(l) upon reasonable request of any of the Consenting Stakeholders, reasonably and promptly inform the advisors Counsel to the Consenting Stakeholders as to: Ad Hoc Lender Group and Counsel to the Plan Sponsor of:
(i) the material business and financial (including liquidity) performance of the Company Parties;
(ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and and
(iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body body, or any stock exchange;
(im) inform counsel Counsel to the Consenting Stakeholders Ad Hoc Lender Group and Counsel to the Plan Sponsor as soon as reasonably practicable after becoming aware of: :
(i) any event matter or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur)circumstance, that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; ;
(iiiii) any notice of any commencement of any material involuntary insolvency proceedings, material legal suit for payment of debt or securement of security from or by any person in respect of any Company Partydebt; and
(iviii) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(jn) pay in Cash all Restructuring Expenses within seven (i7) consult and coordinate in good faith with calendar days of receipt of invoice, regardless of whether the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, developRestructuring Transactions are or have been consummated, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation such other time set forth in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposalsa Court order;
(ko) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Groupto, and Consenting Sponsors informed of any discussions regarding cause its relevant subsidiaries to, obtain consent from the development of any Alternative Restructuring Proposal;
property-level mortgage lenders and joint venture partners (m) use commercially reasonable efforts including, O’Xxxxxx Mall Partners, L.P. and its relevant affiliates), as necessary, to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactionsaccommodate a tax-efficient post‑emergence legal entity structure; and
(op) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to if the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, orderPlan Sponsor agrees otherwise, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action if necessary to preserve and protect their rights in effectuate the Restructuring Transactions, take such proceedingactions as necessary to ensure that WPG LP continues to be treated as a partnership for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Restructuring Support Agreement (Washington Prime Group, L.P.)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 Agreement and Section 5 to within the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classtimeframes outlined herein;
(b) support and take all steps necessary and desirable to facilitate solicitation of the Plan in accordance with this Agreement and within the timeframes outlined herein;
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentstakeholders;
(g) consult with provide draft copies of all substantive motions, documents, and other pleadings to be filed in the advisors Chapter 11 Cases to counsel to the Consenting Stakeholders DIP Lenders, counsel to the Consenting Revolving Credit Facility Lenders, counsel to the Consenting FLLO Term Loan Facility Lenders, and counsel to the Consenting Second Lien Noteholders as soon as reasonably practicable, but in no event less than two (2) Business Days prior to the date when the Company Parties intend to file such documents and, without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to the DIP Lenders, counsel to the Consenting Revolving Credit Facility Lenders, counsel to the Consenting FLLO Term Loan Facility Lenders, and counsel to the Consenting Second Lien Noteholders regarding the implementation form and substance of any such proposed filing. Notwithstanding the Restructuring Transactions and foregoing, in the development event that two (2) Business Days’ notice is not reasonably practicable under the circumstances, the Company Parties shall provide draft copies of Alternative Restructuring Proposalsany such motions, documents, or other pleadings to counsel to the applicable Consenting Stakeholders as soon as otherwise reasonably practicable before the date when the Company Parties intend to file any such motion, documents, or other pleading;
(h) provide, and direct their employees, officers, advisors, and other representatives to provide, to each of the Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan Facility Lenders, and the Consenting Second Lien Noteholders, and each of their respective legal and financial advisors (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business, (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan Facility Lenders, the Consenting Second Lien Noteholders or their respective legal and financial advisors; notwithstanding the foregoing, the Company Parties shall not be required (x) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company Parties, would cause the Company Party to violate its respective obligations with respect to confidentiality to a third party, (y) to disclose any legally privileged information of the Company Party, or (z) to violate applicable Law;
(i) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the filing of timely filed objections or written responses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(j) actively oppose and object to any motion, application, adversary proceeding, or cause of action (a) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination of the DIP Claims; the Revolving Credit Facility Claims, the FLLO Term Loan Facility Claims, or the Second Lien Notes Claims or the Liens securing such Claims, (b) otherwise seeking to impose liability upon or enjoin the DIP Lenders, the Revolving Credit Facility Lenders, the FLLO Term Loan Facility Lenders, or the Second Lien Noteholders, (c) seeking the entry of an order directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (d) seeking the entry of an order converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (e) seeking the entry of an order dismissing the Chapter 11 Cases, or (f) seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(k) actively oppose or object to any effort by a third party seeking standing to bring any motion, application, adversary proceeding, or cause of action described in Section 6.01(j);
(l) upon reasonable request of any of the Consenting Stakeholders, inform the advisors counsel to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(im) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iviii) a breach of this Agreement (including a breach by any Company Party); and (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(jn) (ito the extent any legal or structural impediment arises under Section 6.01(m) consult that would prevent, hinder or delay the consummation of the Plan, use commercially reasonable efforts to negotiate with the Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan Facility Lenders, and coordinate the Consenting Second Lien Noteholders in good faith with in an effort to agree to appropriate additional or alternative provisions or alternative implementation mechanics to address any such impediment; provided, that the economic outcome for the Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan/PGN Group Loan Facility Lenders, and the Term Loan/PGN Group Representatives regarding Consenting Second Lien Noteholders and other material terms of this Agreement must be substantially preserved in such alternate provisions or implementation mechanics;
(o) to the extent the Company Parties’ process Parties decide to solicitseek Bankruptcy Court approval of (a) a key employee incentive plan for insider employees (the “KXXX”), initiateand/or (b) a key employee retention plan for key non-insider employees (the “KERP”), encourage, induce, negotiate, facilitate, continue, develop, or respond such plans shall be in a form acceptable to any Alternative Restructuring Proposals (including the Consenting Stakeholders with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent terms of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group KXXX and/or the Term Loan/PGN Group Representatives; and (iiiKERP prior to filing motion(s) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress seeking approval of the Company Parties’ efforts with respect KXXX and/or KERP; provided, however, the KERP effective as of May 1, 2020 shall be deemed acceptable to the development of any Alternative Restructuring ProposalsConsenting Stakeholders;
(kp) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account seek additional support for the Restructuring Transactionsfrom their other material stakeholders to the extent reasonably prudent and, to the extent the Company Parties receive any Joinders or Transfer Agreements, to notify the Consenting Stakeholders of such Joinders and Transfer Agreements; and
(oq) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingpromptly pay Restructuring Expenses.
Appears in 1 contract
Samples: Restructuring Support Agreement (Chesapeake Energy Corp)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the Company Parties agree each Consenting Stakeholder and, as applicable, each Shareholder agrees to:
(ai) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions and vote and exercise any powers or rights available to it (including in accordance with this Agreementany board, including by complying with Section 4 and Section 5 shareholders’ or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests and by electing necessary to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for implement the Restructuring Transactions;
(dii) use commercially reasonable efforts solely with respect to actively oppose and object each Consenting Stakeholder, so long as its vote has been properly solicited pursuant to the efforts Brazilian Bankruptcy Law and subject to any other restrictions imposed by applicable law, (A) vote or cause to be voted all claims eligible to vote on the Plan under the Brazilian Bankruptcy Law that it, as of the Execution Date or later, holds, controls or has the ability to control (the “Eligible Claims”) to accept the Plan by casting its vote at the Creditors’ General Meeting, if any, including by submitting all necessary papers, authorizations, proxies and vote instructions to the judicial administrator and/or to their legal representatives and (B) not challenge such vote (or cause or direct such vote to be challenged), so long as, in each case, the Plan shall be substantially consistent with the terms of this Agreement and the Term Sheet and not have been modified in a manner that has, or could reasonably be expected to have, (determined as of the date of any person seeking such modification) a material adverse effect on the rights of the Consenting Stakeholders without the prior written consent of the Consenting Stakeholders in accordance with Section 12; provided, however, that notwithstanding anything else herein, nothing in this Agreement shall oblige Bradesco to object tovote its LC Reimbursement Agreement Claims, delayit being understood that if Bradesco, impedein its sole discretion, elects to vote its LC PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT Reimbursement Agreement Claims, then it will be obliged to vote to accept the Plan; provided, further, that nothing in this Agreement shall prevent any Party from freely voting its Claims (accepting or take any rejecting the Plan) with respect to the Brazilian RJ Proceeding if this Agreement is terminated with respect to such Party;
(iii) support, not oppose and, as applicable under the laws of such ancillary jurisdiction, express approval for recognition of, the Brazilian RJ Proceeding (or other action relief as requested by the Filing Entities) in the Ancillary Proceedings as reasonably necessary or appropriate to interfere with give effect to or aid in the acceptance, implementation, or consummation of the Restructuring Transactions Plan or entry of the Recognition Orders;
(includingiv) give any notice, if applicableorder, the timely filing of objections instruction, or written responses in a Chapter 11 Case) direction to the extent such opposition or objection is reasonably applicable Agents necessary or desirable to facilitate implementation of give effect to the Restructuring Transactions;
(ev) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate implement the Restructuring Transactions as contemplated by Documents that are consistent with this AgreementAgreement to which it is required to be a party;
(fvi) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders solely with respect to the extent reasonably prudent;
(g) consult Shareholders, maintain its respective portion of the Shareholder Contribution deposited in full, in compliance with the advisors its respective Shareholder Contribution Agreement, and deliver to the Consenting Stakeholders regarding the implementation written notice at least two (2) Business Days prior to any withdrawal of all or any portion of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactionsdeposited Shareholder Contribution funds; and
(ovii) refrain from taking any action whatsoeversolely with respect to each Consenting Lender, except as permit the Filing Entities to use the Cash Collateral, but only to the extent expressly permitted under, and subject to the terms and conditions set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingCash Collateral Agreements.
Appears in 1 contract
Samples: Plan Support and Lock Up Agreement
Affirmative Commitments. Except as set forth in Section 78.02, during the Agreement Effective Period, subject to the terms and conditions of this Agreement, the Company Parties agree to:
(a) use commercially reasonable efforts to support and the Restructuring Transactions, act in good faith, take all steps actions, to the extent practicable and subject to the terms hereof, reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with the terms, conditions, and applicable deadlines set forth in this AgreementAgreement and the Definitive Documents, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classas applicable;
(b) comply with each Milestone;
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment (including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment;
(c) use commercially reasonable efforts , in each case, in a manner acceptable to obtain any and all required regulatory and/or third-party approvals for the Restructuring TransactionsRequired Consenting Senior Secured Creditors);
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and, upon request, consult with the Required Consenting Senior Secured Creditors (including through the Senior Secured Creditor Advisors) regarding the status and the material terms of any negotiations with any such stakeholders;
(e) use commercially reasonable efforts to diligently and timely obtain necessary or advisable regulatory and/or licensing approvals and comply with applicable noticing requirements in connection with the Restructuring Transactions, including by coordinating with and providing all information reasonably requested by the Consenting Stakeholders in connection therewith;
(f) use commercially reasonable efforts to obtain any and all required governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
(g) consult with negotiate in good faith and use commercially reasonable efforts to execute (where applicable) and implement the advisors Definitive Documents and any other agreements required to effectuate and consummate the Consenting Stakeholders regarding Restructuring Transactions as contemplated by this Agreement;
(h) operate the implementation business of each of the Debtors in the ordinary course, taking into account the Restructuring Transactions and the development filing of Alternative Restructuring Proposalsthe Chapter 11 Cases, and in accordance with their business judgment and in a manner that is materially consistent with this Agreement and the business plan of the Debtors;
(hi) upon reasonable request as reasonably requested by the Required Consenting Senior Secured Creditors (which may be through the Senior Secured Creditor Advisors) cause management and advisors of the Consenting Stakeholders, Company Parties to inform and/or confer with the advisors to the Consenting Stakeholders Senior Secured Creditor Advisors as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and , (ii) the status of obtaining any necessary or desirable authorizations (including any consents) with respect to the Restructuring Transactions from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange, and (iii) operational and financial performance matters (including liquidity), collateral matters, contract and lease matters, and the general status of ongoing operations and, in each of the foregoing cases (i)-(iii), provide timely and reasonable responses to all reasonable diligence requests with respect to the foregoing, subject to any applicable restrictions and limitations set forth in any confidentiality agreements then in effect;
(ij) inform counsel pursue and negotiate a Strategic Transaction on terms and conditions acceptable to the Required Consenting Stakeholders Senior Secured Creditors;
(k) provide to the Senior Secured Creditor Advisors and Subordinated Creditor Advisors (solely with respect to the Definitive Documents that the Consenting Subordinated Creditors have consent rights pursuant to Section 3 hereof) drafts of all Definitive Documents and declarations related thereto (other than declarations in support of, or related to, retention applications, fee applications, or fee statements) that the Company Parties intend to file with the Bankruptcy Court as soon as reasonably practicable after becoming aware of: (and in all events prior to filing), and will use commercially reasonable efforts to provide such documents and declarations no less than two (2) days (or such shorter period as may be necessary in light of exigent circumstances) prior to such filing;
(l) provide the Senior Secured Creditor Advisors and the Subordinated Creditor Advisors drafts of the New Organizational Documents and New Warrant Documents at least ten (10) days (or as soon as reasonably practicable thereafter) prior to the deadline for such documents to be initially filed in the Plan Supplement;
(m) timely file a formal written reply to and oppose any objection filed with the Bankruptcy Court by any person with respect to the Definitive Documents;
(n) timely file a formal objection to and oppose any motion filed with the Bankruptcy Court by any person seeking the entry of an order (i) any event directing the appointment of a trustee or circumstance that has occurred, or that is reasonably likely to occur examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and if it did so occur(4) of the Bankruptcy Code), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they knowconverting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or suspect (iv) for relief that (y) is likelyinconsistent with this Agreement in any material respect or (z) would reasonably be expected to frustrate the purposes of this Agreement, including by preventing consummation of the Restructuring Transactions;
(o) timely file a formal objection to and oppose any motion filed with the Bankruptcy Court by any person seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(p) promptly (but in any event within one (1) Business Day) notify the Senior Secured Creditor Advisors in writing of the occurrence, or failure to occur, of any event of which the Company Parties have actual knowledge and which such occurrence or failure would likely (i) cause any representation of the Company Parties contained in this Agreement to be untrue or inaccurate in any material respect, (ii) cause any covenant of the Company Parties contained in this Agreement not to be satisfied in any material respect, (iii) cause any condition precedent contained in the Plan related to the obligations of the Company Parties not to occur or become impossible to satisfy; or (iv) comprise a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(jq) promptly (ibut in any event within one (1) consult Business Day) notify the Senior Secured Creditor Advisors and coordinate Subordinated Creditor Advisors in writing of the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that would reasonably be expected to prevent the consummation of a material portion of the Restructuring Transactions;
(r) negotiate in good faith with upon reasonable request of the Term Loan/PGN Group and Required Consenting Senior Secured Creditors any modifications to the Term Loan/PGN Group Representatives regarding Restructuring Transactions that improve the Company Parties’ process tax efficiency of the Restructuring Transactions or are otherwise necessary to solicitaddress any legal, initiate, encourage, induce, negotiate, facilitate, continue, developfinancial, or respond to any Alternative Restructuring Proposals (including with respect to structural impediment that may prevent the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent consummation of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(os) refrain from taking any action whatsoever, except as set forth pay the Transaction Expenses in this accordance with Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding15.
Appears in 1 contract
Samples: Restructuring Support Agreement (Airspan Networks Holdings Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the Company Parties agree each Consenting Stakeholder and, as applicable, each Shareholder agrees to:
(ai) support the Brazilian RJ Proceeding and take all steps reasonably necessary and desirable to confirm the RJ Plan and consummate vote and exercise (or cause to be voted and exercised, as applicable) any powers or rights available to it (including in any board, shareholders’ or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring Transactions Transactions, including through compliance with the Restructuring Documents;
(ii) solely with respect to each Consenting Stakeholder, so long as its vote has been properly solicited pursuant to Brazilian Bankruptcy Law and subject to any other restrictions imposed by applicable law, and to the extent not prohibited by applicable law, regulation, or order entered by a court of competent jurisdiction, (A) vote or cause to be voted all claims eligible to vote on the RJ Plan under Brazilian Bankruptcy Law that it, as of the Execution Date or later, holds, controls or has the ability to control (the “Eligible Claims”) to accept the RJ Plan by casting its vote at the Creditors’ General Meeting, if any, and (B) not challenge such vote (or cause or direct such vote to be challenged), so long as the RJ Plan shall be substantially consistent with the terms of this Agreement and the Restructuring Term Sheets, comply with Section 3.02 herein, and not have been modified in a manner that has, or could reasonably be expected to have (determined as of the date of any such modification) a material adverse effect on the rights of any of the Consenting Stakeholders without such relevant Consenting Stakeholder’s written consent in accordance with Section 12; provided, however, that notwithstanding anything else herein, nothing in this AgreementAgreement shall oblige Bradesco to vote the Bradesco LC Reimbursement Agreement Claims, including by complying it being understood that if Bradesco, in its sole discretion, elects to vote the Bradesco LC Reimbursement Agreement Claims, then it will be obliged to vote to accept the RJ Plan; provided further, that nothing in this Agreement shall prevent any Party from freely voting its Claims (accepting or rejecting the RJ Plan) with Section 4 and Section 5 respect to the extent they hold Brazilian RJ Proceeding, or otherwise control enforcing, or directing its trustee, agent, or representative to enforce, any Company Claims/Interests of its rights and by electing remedies available absent this Agreement if this Agreement is terminated with respect to seek and prosecute confirmation such Party; provided further, that nothing in this Agreement shall require any of the Consenting Stakeholders to support, vote, or cause to be voted, any claims on any matters concerning: (X) Olinda, or any other claims or matters in the RJ Plan over with regard to Olinda until final resolution and recognition under Brazilian Bankruptcy Law of Olinda as one of the Filing Entities subject to the jurisdiction of the Brazilian RJ Court; (Y) Olinda or any nonother claims or matters with regard to Olinda in any other bankruptcy or insolvency proceeding (including, without limitation, any proceeding in the British Virgin Islands, any proceeding under chapter 11 of the Bankruptcy Code or any foreclosure proceeding), or (Z) Article 133 of the Brazilian Bankruptcy Law, theories of material consolidation or substantive consolidation, or any other analogous laws or similar theories. With respect to Xxxxxx, nothing in this Agreement shall require any of the Consenting Stakeholders to pay any fees or expenses of their respective legal or financial advisors, which shall continue to be paid in accordance with the terms set forth in the RJ Plan Term Sheet, or to participate in or provide an indemnity in connection with any Olinda-accepting class;related process or proceeding.
(biii) support, not oppose and, as applicable under the laws of such ancillary jurisdiction, express approval for recognition of, the Brazilian RJ Proceeding (or other relief as requested by the Filing Entities) in the Ancillary Proceedings as reasonably necessary or appropriate to the extent any legal give effect to or structural impediment arises that would prevent, hinder, or delay aid in the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impedimentRJ Plan or entry of the Recognition Order;
(civ) use commercially reasonable efforts give any notice, order, instruction, or direction to obtain any and all required regulatory and/or third-party approvals for the applicable Agents necessary to give effect to the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(ev) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate implement the Restructuring Transactions as contemplated by Documents that are consistent with this AgreementAgreement to which it is required to be a party;
(fvi) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders solely with respect to the extent reasonably prudent;
(g) consult Shareholders, maintain its respective portion of the Shareholder Contribution deposited in full, in compliance with the advisors its respective Shareholder Contribution Agreement, and deliver to the Consenting Stakeholders regarding the implementation written notice at least two (2) Business Days prior to any withdrawal of all or any portion of the Restructuring Transactions and the development of Alternative Restructuring Proposalsdeposited Shareholder Contribution funds;
(hvii) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including solely with respect to each Consenting Lender, permit the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that Filing Entities to use the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect Cash Collateral, but only to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Groupextent expressly permitted under, and Consenting Sponsors informed of any discussions regarding subject to the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as terms and conditions set forth in this Section 6.01(o)the Cash Collateral Agreements; and
(viii) maintain the Backstop Agreement in full force and effect, with respect subject to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingterms thereof.
Appears in 1 contract
Samples: Plan Support and Lock Up Agreement
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps commercially reasonably necessary and desirable to confirm the Plan and support, facilitate, implement, consummate or otherwise give effect to the Restructuring Transactions in a timely manner in accordance with this AgreementAgreement and as contemplated by the Restructuring Term Sheet, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation all of the Plan over any non-accepting classterms of this Agreement and the Restructuring Term Sheet;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable (in consultation with, and with the consent of, the Noteholder Ad Hoc Group Advisors) to address any such impediment;
(c) use commercially reasonable efforts take all steps reasonably necessary and desirable to obtain any and all required regulatory and/or third-party approvals for the Restructuring TransactionsRestructuring;
(d) in consultation with the Noteholder Ad Hoc Group Advisors, use commercially reasonable efforts to actively oppose and object to the efforts of any person Person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Casethe Brazilian RJ Proceeding) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsRestructuring;
(e) negotiate in good faith and use take all commercially reasonable efforts steps necessary and desirable to execute and deliver the Definitive Restructuring Documents and any other agreements required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this AgreementAgreement and the Restructuring Term Sheet;
(f) use pursue and take all commercially reasonable efforts to seek additional support for steps necessary to, as soon as reasonably practicable, execute the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentSupplemental Indenture;
(g) consult take all reasonable commercial steps necessary to commence the English Scheme as soon as possible and in no event later than July 1, 2024 or such later date as may be agreed in writing with the advisors to the Consenting Stakeholders regarding the implementation consent of the Restructuring Transactions and Majority Consenting Noteholders, which may be by electronic mail from the development of Alternative Restructuring ProposalsNoteholder Ad Hoc Group Advisors;
(h) upon adopt all necessary measures to approve and implement the New Money Capital Raise in connection with the Brazilian RJ Plan and the Restructuring Term Sheet;
(i) timely pay the Outstanding Advisor Invoices consistent with, and when due under, the written arrangements the Company has with each advisor or as otherwise agreed between the Parties; provided that any and all unpaid amounts under any Outstanding Advisor Invoices shall be paid in full on or before the Closing Date;
(j) pursue and take all commercially reasonable request steps necessary to, as soon as reasonably practicable, obtain the English Scheme Sanction Order; Orders from the Brazilian Bankruptcy Court in respect of the Consenting StakeholdersRestructuring, inform including the advisors Brazilian RJ Plan Confirmation Order (including, if necessary, pursuant to Articles 45, 56-A or 58 of Brazilian Bankruptcy Law); the English Scheme Recognition Order; the English Scheme Enforcement Order; the Brazilian RJ Recognition Order; and the Brazilian RJ Enforcement Order, in each case, including by actively opposing, objecting, prosecuting, defending or appealing, to the extent reasonably necessary to facilitate implementation or consummation of the Restructuring, any challenges, objections, limitations or negative rulings related to any of the foregoing Orders, or any other Orders from the English Court, the Brazilian Bankruptcy Court or the U.S. Bankruptcy Court;
(k) provide such assistance and/or information as may reasonably be required by the Consenting Stakeholders Noteholders, in each case subject to any applicable confidentiality agreements, in order to implement the Restructuring in accordance with the terms of this Agreement and as contemplated by the Restructuring Term Sheet;
(l) make commercially reasonable efforts to maintain its good standing under the laws of Brazil;
(m) provide the Noteholder Ad Hoc Group Advisors with draft copies of any material documents that the Company intends to file with respect to any Restructuring Document with the English Court, the Brazilian Bankruptcy Court or the U.S. Bankruptcy Court as soon as reasonably practicable before filing and no later than forty-eight (48) hours prior to filing, except with respect to emergency filings, for which notice shall be provided as soon as reasonably practicable before filing;
(n) attend a bi-weekly call to provide information and updates to, and engage in discussions with, the Noteholder Ad Hoc Group Advisors and, subject to the execution of a customary confidentiality agreement, in the case of material non-public information, the Consenting Noteholders regarding: (i) the status and progress of the implementation of any aspect of the Restructuring Transactionsand negotiation of the Restructuring Documents; (ii) the status of, including progress in relation and any material developments or proceedings regarding any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the negotiations implementation or consummation of the Definitive DocumentsRestructuring; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholderany stakeholders, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body body, or any stock exchangeexchange in connection with the implementation of any aspect of the Restructuring. Unless the Company and their respective advisors notify the Noteholder Ad Hoc Group Advisors in advance, confidential information and/or materials to be received in connection with such updates shall be provided on an advisors-eyes-only basis;
(io) inform counsel to the Consenting Stakeholders Noteholder Ad Hoc Group Advisors as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would could reasonably be expected to result in the termination of, this Agreement; (ii) any matter or circumstance which they know, that constitutes or suspect is likely, could reasonably be expected to be constitute a material impediment to the implementation or consummation of the Restructuring TransactionsRestructuring; (iii) any notice of any commencement of any material involuntary insolvency proceedings, proceedings or legal suit for payment of debt or securement of security from or by any person Person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) do all things reasonably necessary to (i) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 (ii) prosecute and Section 5 defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests Confirmation Order, and by electing to seek and prosecute confirmation of (iii) comply with the Plan over any non-accepting class;Milestones.
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g1) consult with provide counsel for the advisors Consenting Senior Noteholders a reasonable opportunity to review draft copies of all First Day Pleadings and, (2) to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon extent reasonably practicable, provide a reasonable request of the Consenting Stakeholders, inform the advisors opportunity to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the any Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely Senior Noteholder materially affected by such filing to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation review draft copies of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal other documents that the Company Parties receive intend to file with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring ProposalsBankruptcy Court, as applicable;
(kg) use commercially reasonable efforts to provide draft copies of all material substantive motions, documents, and other pleadings to be filed in the Term Loan/PGN Group Representatives and Term Lender Group Representatives Chapter 11 Cases to counsel to the Consenting Senior Noteholders at least three (3) business days prior to the date when any Company Parties intend to file such documents with regular access the Bankruptcy Court; provided that if three (3) business days in advance is not reasonably practicable, such initial draft Definitive Document shall be provided as soon as reasonably practicable thereafter, without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to information the Consenting Senior Noteholders regarding the operations form and substance of CCOHany such proposed filing in accordance with Sections 3 and 12;
(lh) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Groupprovide, and direct their employees, officers, advisors, and other representatives to provide, to the Consenting Sponsors informed Senior Noteholders, and each of their respective legal and financial advisors (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business, (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the Consenting Senior Noteholders or their legal and financial advisors, including with respect to the M&A Process and M&A Materials in accordance with the Restructuring Term Sheet; notwithstanding the foregoing, in no event shall the Company be required (x) to permit any discussions regarding inspection, or to disclose any information, that in the development reasonable judgment of any Alternative Restructuring Proposal;
(m) use the Company, would cause the Company to violate its respective obligations with respect to confidentiality to a third party if the Company used its commercially reasonable efforts to maintain their good standing under obtain, but failed to obtain, the Laws consent of such third party to such inspection or disclosure, (y) to disclose any legally privileged information of the state Company, or other jurisdiction in which they are incorporated or organized(z) to violate applicable Law;
(ni) use commercially reasonable efforts provide counsel to operate their business the Consenting Senior Noteholders, subject to confidentiality restrictions, information as reasonably necessary to evaluate each of the material executory contracts or unexpired leases of the Company Parties for the purposes of concluding which such material executory contracts or unexpired leases the Company Parties or the Debtors, as applicable, intend to assume, assume and assign, or reject in the ordinary courseChapter 11 Cases, taking into account subject to the Restructuring Transactionsconsent rights set forth herein and in the Plan;
(j) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases; and
(ok) refrain from taking timely file a formal objection to any action whatsoever, except as set forth in this Section 6.01(o), motion filed with respect to the Texas Litigation during Bankruptcy Court by a third party seeking the Agreement Effective Period; provided, however, that to the extent any deadline, order, entry of an order modifying or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) terminating the Company Parties and the Consenting Senior Creditors each hereby agree Parties’ exclusive right to immediately seek an extension file and/or solicit acceptances of such deadlinea plan of reorganization, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingas applicable.
Appears in 1 contract
Samples: Restructuring Support Agreement (Extraction Oil & Gas, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take do all steps things reasonably necessary and desirable to confirm the Plan (i) support and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 (ii) prosecute and Section 5 defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests Confirmation Order, and by electing to seek and prosecute confirmation of the Plan over any non-accepting class(iii) comply with each Milestone set forth in this Agreement;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals reasonably necessary or required for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, implementation or consummation of the Restructuring Transactions (including, if applicable, or approval by the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation Bankruptcy Court of the Restructuring TransactionsDefinitive Documents as provided herein;
(ed) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(ke) use commercially reasonable efforts to provide draft copies of all material substantive motions, documents, and other pleadings to be filed in the Term Loan/PGN Group Representatives Chapter 11 Cases (for the avoidance of doubt, the following are not material substantive motions, documents, or other pleadings): ministerial notices and Term Lender Group Representatives similar ministerial documents; retention applications; fee applications; fee statements; any similar pleadings or motions relating to the retention or fees of any professional; statements of financial affairs and schedules of assets and liabilities) to counsel to the Consenting Creditors at least three (3) business days prior to the date when any Company Parties intend to file such documents with regular access the Bankruptcy Court; provided that if three (3) business days in advance is not reasonably practicable, such initial draft Definitive Document shall be provided as soon as reasonably practicable prior to information filing, but in no event later than twenty-four (24) hours in advance of any filing thereof and, without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to the Consenting Creditors regarding the operations form and substance of CCOHany such proposed filing in accordance with Sections 3 and 14;
(lf) use provide, and direct their employees, officers, advisors, and other representatives to provide, to the Consenting Creditors, and each of their respective legal and financial advisors (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business, (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the Consenting Creditors or their legal and financial advisors; notwithstanding the Table of Contents foregoing, the Company shall not be required (x) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company, would cause the Company to violate its respective obligations with respect to confidentiality to a third party if the Company used its commercially reasonable efforts to keep the 2021 Noteholder Groupobtain, but failed to obtain, the Term Lender Groupconsent of such third party to such inspection or disclosure, and Consenting Sponsors informed (y) to disclose any legally privileged information of any discussions regarding the development of any Alternative Restructuring ProposalCompany, or (z) to violate applicable Law;
(mg) use commercially reasonable efforts timely file a formal objection to maintain their good standing under any motion filed with the Laws Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the state Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or other jurisdiction in which they are incorporated or organized;
(niii) use commercially reasonable efforts to operate their business in dismissing the ordinary course, taking into account the Restructuring TransactionsChapter 11 Cases; and
(oh) refrain from taking timely file a formal objection to any action whatsoever, except as set forth in this Section 6.01(o), motion filed with respect to the Texas Litigation during Bankruptcy Court by a third party seeking the Agreement Effective Period; provided, however, that to the extent any deadline, order, entry of an order modifying or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) terminating the Company Parties and the Consenting Senior Creditors each hereby agree Parties’ exclusive right to immediately seek an extension file and/or solicit acceptances of such deadlinea plan of reorganization, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingas applicable.
Appears in 1 contract
Samples: Restructuring Support Agreement (Whiting Petroleum Corp)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the each Consenting Stakeholder agrees, severally, and not jointly, in respect of all of its Company Parties agree Claims/Interests, to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions and vote and exercise any powers or rights available to it with respect to any Company Claims in accordance with this Agreement, including by complying with Section 4 and Section 5 each case in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests and by electing necessary to seek and prosecute confirmation of implement the Plan over any non-accepting classRestructuring Transactions;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals cooperate with and, subject to applicable Laws, assist the Company Parties in obtaining additional support for the Agreement and the Restructuring TransactionsTransactions from (1) in the case of the Consenting RBL Lenders, the other RBL Lenders, and (2) in the case of the Consenting Noteholders, the other Noteholders;
(c) solely with respect to the Consenting RBL Lenders, to the extent any Consenting RBL Lender is not a party to the DIP Commitment Letter, such Consenting RBL Lender agrees to execute the DIP Commitment Letter unless otherwise agreed by the RBL Agent;
(d) solely with respect to the Consenting RBL Lenders who are not Initial Exit Facility Lenders, execute the Exit Facility Commitment Letter;
(e) use commercially reasonable efforts to actively oppose and object give any notice, order, instruction, or direction to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is applicable Agents/Trustees reasonably necessary or desirable to facilitate implementation of give effect to the Restructuring Transactions;; provided that in no event shall the Consenting Stakeholder be required to bear responsibility for any out-of-pocket costs related to any such notice, order, instruction, or discretion; and
(ef) negotiate in good faith and use commercially reasonable efforts to execute and deliver implement the Definitive Documents and any other that are consistent with this Agreement to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingparty.
Appears in 1 contract
Samples: Restructuring Support Agreement (Oasis Petroleum Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, Ascent agrees to use good faith and commercially reasonable efforts in respect of any and all of its Existing Equity Interests and Company Claims, to the Company Parties agree extent applicable, to:
: (a) support and take all steps reasonably necessary and desirable desirable, including those steps reasonably requested by the Ad Hoc Noteholder Group, or the Ad Hoc Lender Group, to confirm the Plan and consummate the Restructuring Transactions (including, for the avoidance of doubt, the Non-Ascent Restructuring) in accordance with this Agreement, ; (b) vote and exercise any powers or rights available to it (including by complying with Section 4 and Section 5 in any meeting or process requiring voting or approval in which it is legally entitled to participate) in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests and by electing necessary to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of implement the Restructuring Transactions contemplated herein(including, support and take all steps reasonably necessary and desirable to address any such impediment;
for the avoidance of doubt, the Non-Ascent Restructuring); (c) use good faith and commercially reasonable efforts to obtain any and all required governmental, regulatory (including self-regulatory), and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicablefor the avoidance of doubt, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
Non-Ascent Restructuring); 23 EXECUTION VERSION (ed) negotiate in good faith and use commercially reasonable efforts to execute and deliver implement the Definitive Documents and any other to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated be a party or to which its approval is required by this Agreement;
; (fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, promptly inform the advisors to the Consenting Stakeholders as to: (i) Company Parties, the status and progress of the Restructuring Transactions, including progress in relation advisors to the negotiations of Ad Hoc Noteholder Group, and the Definitive Documents; and (ii) advisors to the Ad Hoc Lender Group, as to the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (iif) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their its good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
; (ng) use commercially reasonable efforts to operate their its business in the ordinary course, taking into account the Restructuring Transactions(including, for the avoidance of doubt, the Non-Ascent Restructuring); and
(oh) refrain from taking any action whatsoever(i) cause meetings of (x) Ascent’s board of directors, except and (y) Ascent stockholders to be duly called and held, in accordance with applicable Law, NASDAQ requirements and the applicable provisions of Ascent’s certificate of incorporation and bylaws, for the purpose of voting on approval of the Merger as set forth in this Section 6.01(opromptly as reasonably practicable after the Agreement Effective Date, (ii) prepare and file, or cause Monitronics to prepare and file, with the SEC a Form S-4 or a preliminary proxy statement, as may be the case, relating to the Merger (which shall include the recommendation of Ascent’s board of directors that stockholders approve the Merger and all other proxy materials (except, for the avoidance of doubt, approval of the Plan), for such stockholders meeting) as promptly as reasonably practicable after the Agreement Effective Date, (iii) prepare and file, or cause Monitronics to prepare and file, with the SEC any amendments to such Form S-4 or preliminary proxy statement, as may be the case, or other filings as may be necessary to respond to SEC staff comments on such Form S-4 or preliminary proxy statement as promptly as reasonably practicable, (iv) use diligent efforts to have the Form S-4 declared effective by the SEC or the proxy statement cleared by the SEC, as may be the case, (v) cause the prospectus or definitive proxy statement and related proxy materials, as may be the case, to be distributed to stockholders as promptly as reasonably practicable after such effectiveness or clearance by the SEC, (vi) use commercially reasonable efforts to obtain the required affirmative vote of Ascent stockholders to approve the Merger, (vii) otherwise comply with all requirements of Law applicable to such stockholders meeting and solicitation of votes, and (viii) keep the advisors to the Company Parties, the Ad Hoc Noteholder Group, and the Ad Hoc Lender Group fully informed with respect to the Texas Litigation during shareholder approval process and the Agreement Effective Periodresults thereof; provided, however, that (i) promptly inform the advisors to the extent Company Parties, the advisors to the Ad Hoc Noteholder Group, and the advisors to the Ad Hoc Lender Group if at any deadline, ordertime Ascent has, or proceeding requires any party reasonably expects to take any action in have as of the Texas Litigation during the Agreement Plan Effective PeriodDate, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension a Net Cash Amount of such deadline, order, or proceedingless than $20 million; (yj) that cause the Company Parties may file motions Ascent Cash Amount to xxxxx and/or stay be contributed to Monitronics under the Texas LitigationPlan; (k) an amount after the occurrence of the Non-Ascent Restructuring Toggle, which motions shall not be opposed by contribute cash in equal to $3.5 million to Monitronics on or before the Consenting Senior Creditors; and Plan Effective Date (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.24
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascent Capital Group, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable best efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring TransactionsRestructuring;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders First Lien Lenders to the extent reasonably prudent;
(gf) consult with the advisors provide counsel to the Consenting Stakeholders regarding First Lien Lenders a reasonable opportunity to review draft copies of all First Day Pleadings and all other material pleadings filed by the implementation Company Parties in the Chapter 11 Cases
(g) provide on the first day of each month an updated Exit Costs Estimate to the Restructuring Transactions and the development of Alternative Restructuring ProposalsConsenting First Lien Lenders;
(h) upon reasonable request provide the Consenting First Lien Lenders with drafts of the Lease Optimization Plan and the Owned Real Estate Optimization Plan no later than the Friday of each week beginning with June 1, 2020, consult with the Consenting First Lien Lenders and their advisors regarding the same, and consider in good faith all suggestions of the Consenting Stakeholders, inform First Lien Lenders and their advisors regarding the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documentssame; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;and
(i) inform counsel Extend any offer made to the one or more Consenting Stakeholders as soon as reasonably practicable after becoming aware of: First Lien Lenders to all Consenting First Lien Lenders (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occuron a pro rata basis), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (J C Penney Co Inc)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(kf) use commercially reasonable efforts to provide oppose any party or person seeking to object to, impede, or take any other action to interfere with the Term Loan/PGN Group Representatives acceptance, implementation, and Term Lender Group Representatives with regular access to information regarding consummation of the operations of CCOHRestructuring Transactions;
(lg) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal[Reserved];
(m1) use commercially provide counsel for the Consenting TLB Lenders a reasonable efforts opportunity to maintain their good standing under review draft copies of all material pleadings, and (2) to the Laws extent reasonably practicable, provide a reasonable opportunity to counsel to the Consenting TLB Lenders to review draft copies of other documents that the state or other jurisdiction in which they are incorporated or organizedCompany Parties intend to file with the Bankruptcy Court, as applicable;
(ni) use commercially reasonable efforts to operate their business on the Agreement Effective Date, the Debtors shall file this Agreement with the Bankruptcy Court, other than the signature pages of the Consenting TLB Lenders, as set forth in the ordinary course, taking into account the Restructuring TransactionsSection 13.20; and
(oj) refrain from taking any action whatsoeverimplement the Restructuring Transactions on the following timeline (each deadline, except as set forth in this Section 6.01(oa “Milestone”), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent unless any deadline, order, such Milestone is extended or proceeding requires any party to take any action waived in the Texas Litigation during the Agreement Effective Period, writing (xwhich may be by email between applicable counsel) by the Company Parties and the Required Consenting Senior Creditors each hereby agree TLB Lenders:
(i) not later than 73 calendar days after the Petition Date, the Debtors shall have filed the Chapter 11 Plan and the Disclosure Statement;
(ii) not later than 73 calendar days after the Petition Date, the Debtors shall have executed the New Management Services Agreements (which such agreement or agreements shall be approved by the Bankruptcy Court within 94 days of the Petition Date);
(iii) not later than 77 calendar days after the Petition Date, the Debtors shall have delivered to immediately seek an extension the Consenting TLB Lenders a draft schedule of executory contracts to be assumed or rejected by the Debtors;
(iv) not later than 87 calendar days after the Petition Date, the Debtors shall have filed all exhibits and schedules to the Disclosure Statement;
(v) not later than 87 calendar days after the Petition Date, the Debtors and the Required Consenting TLB Lenders shall have agreed on a schedule of executory contracts to be assumed or rejected by the Debtors and, within 30 days thereafter, the Bankruptcy Court shall have approved the rejection or assumption of such deadline, order, or proceeding; (yexecutory contracts effective as of such date(s) that to be agreed by the Company Parties may file motions to xxxxx and/or stay Debtors and the Texas LitigationRequired Consenting TLB Lenders, which motions such dates shall be prior to or contemporaneous with the confirmation of the Chapter 11 Plan;
(vi) not later than 109 calendar days after the Petition Date, all matters relating to onboarding the counterparties to the New Management Services Agreements shall be opposed by the Consenting Senior Creditorssubstantially complete; and (z) solely provided, that, to the extent any necessary regulatory approvals remain pending at that time, this date may be extended with the consent of the Required Consenting TLB Lenders to the date that is five (5) Business Days after obtaining such deadlineapprovals, order, or proceeding has which such consent must be conveyed in writing (with email being sufficient);
(vii) not been extended or stayed or later than 119 calendar days after the applicable proceeding has not been abated or stayedPetition Date, the Company Parties effective date(s) of the New Management Services Agreements shall have occurred; provided, that, to the extent any necessary regulatory approvals remain pending at that time, this date may take be extended with the consent of the Required Consenting TLB Lenders to the date that is five (5) Business Days after obtaining such approvals, which such consent must be conveyed in writing (with email being sufficient); and
(viii) not later than 149 days after the Petition Date, the effective date of the Chapter 11 Plan shall have occurred; provided, that, to the extent any action necessary regulatory approvals remain pending at that time, this date may be extended with the consent of the Required Consenting TLB Lenders to preserve and protect their rights the date that is five (5) Business Days after obtaining such approvals, which such consent must be conveyed in such proceedingwriting (with email being sufficient).
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable desirable, or reasonably requested by the Required Consenting Creditors, to confirm the Plan and consummate the Restructuring Transactions in accordance with this AgreementAgreement and the Definitive Documents and perform their obligations hereunder and thereunder, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable Milestones set forth on Exhibit C;
(b) support and take all steps reasonably necessary and desirable to obtain entry of the DIP Orders, an order approving the Disclosure Statement, this Agreement and the other Solicitation Materials, and the Confirmation Order;
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address and resolve any such impediment;
(cd) operate their businesses in the ordinary course, in a manner consistent with applicable Law and actions taken by similarly situated companies in the industry in which the Company Parties operate and maintain the good standing (or equivalent status under the Laws of its incorporation or organization) under the Laws of the jurisdiction in which each of such Company Parties are incorporated or organized; provided that, nothing in this Section 6.01(d) shall apply with respect to any actions taken in furtherance of the Restructuring Transactions or administration of the Chapter 11 Cases;
(e) use commercially reasonable efforts to obtain any and all required or advisable regulatory and/or third-party approvals for the Restructuring Transactions;
(df) negotiate in good faith and, where applicable, execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(g) consult and negotiate in good faith with the Consenting Creditors and their advisors regarding the execution and consummation of the Restructuring Transactions;
(h) use commercially reasonable efforts to actively (i) seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent and (ii) obtain (1) approval by the Bankruptcy Court of the Solicitation Materials and (2) entry of the Confirmation Order by the Bankruptcy Court in accordance with the Bankruptcy Code;
(i) oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(hj) upon reasonable request of the Required Consenting StakeholdersCreditors, inform the respective advisors and counsel to the Consenting Stakeholders Creditors as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each any Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(ik) inform the respective advisors and counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect reasonably expect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iviii) a breach of this Agreement (including a breach by any Company Party); and (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
; (jv) (i) consult and coordinate any notice from any third party alleging that the consent of such party is or may be required in good faith connection with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group RepresentativesTransactions; and (iiivi) participate in no less than weekly (and more frequently if any notice, including from any governmental authority, of any proceeding commenced or of any complaints, litigations, investigations or hearings, or, to the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress knowledge of the Company Parties’ efforts with respect , threatened against the Company Parties, relating to or involving the development of Company Parties (or any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information communications regarding the operations of CCOHsame that may be contemplated or threatened);
(l) use commercially provide the counsel to the Consenting Creditors the reasonable efforts advance opportunity (which shall be no less than three (3) Business Days to keep the 2021 Noteholder Groupextent reasonably practicable) to review draft copies of all motions, the Term Lender Groupdeclarations, pleadings, supporting exhibits, and proposed orders relating to the Definitive Documents (including, without limitation, all First Day Pleadings and “second day” pleadings and any plan-related pleadings) and any other documents that the Company Parties intend to file in the Chapter 11 Cases, and, without limiting any consent rights set forth in this Agreement, consider in good faith any comments provided by such counsel to the Consenting Sponsors informed Creditors with respect to the form and substance of any discussions regarding such proposed filing and (ii) solely to the development of any Alternative Restructuring Proposalextent they relate to the Specified Equity Holder Consent Right, provide the counsel to the Specified Equity Holders such documents referred to in this Section 6.01(l);
(m) use commercially reasonable efforts timely file a formal objection to maintain their good standing any motion filed with the Bankruptcy Court by any person seeking the entry of an order (i) directing the appointment of an examiner or a trustee, (ii) converting any Chapter 11 Case to a case under the Laws chapter 7 of the state Bankruptcy Code other than as contemplated by the Plan, or other jurisdiction in which they are incorporated or organized;(iii) dismissing any of the Chapter 11 Cases; and
(n) use commercially reasonable efforts comply in all material respects with applicable Laws (including making or seeking to operate their business in the ordinary courseobtain all required material consents and/or appropriate filings or registrations with, taking into account the Restructuring Transactions; and
(o) refrain from taking notifications to, or authorizations, consents or approvals of any action whatsoeverregulatory or governmental authority, and paying all material taxes as they become due and payable except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed nonpayment thereof is permitted by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingBankruptcy Code.
Appears in 1 contract
Samples: Restructuring Support Agreement (Centric Brands Inc.)
Affirmative Commitments. Except as set forth in Subject to Section 78.01 of this Agreement, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support use commercially reasonable efforts to (i) pursue, consummate, and take all steps reasonably necessary implement the Transactions on the terms and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with the Milestones set forth in this AgreementAgreement (including the Transaction Term Sheet), including by complying negotiating the Definitive Documents in good faith, and (ii) cooperate, if necessary, with Section 4 the Consenting Stakeholders to negotiate and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation obtain necessary approval of the Plan over any non-accepting classDefinitive Documents to consummate the Transactions;
(b) use commercially reasonable efforts and timely take all reasonable actions, including actions reasonably requested by the other Parties, necessary to facilitate the solicitation, confirmation, approval, and consummation of the Transactions, as applicable, to the extent any legal or structural impediment arises that would prevent, hinder, or delay consistent with the consummation of terms and conditions in this Agreement (including the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impedimentTransaction Term Sheet);
(c) use commercially reasonable efforts to obtain any and all required regulatory or advisable governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
(d) negotiate in good faith, execute, deliver, and perform its obligations under the Definitive Documents in accordance with the terms of this Agreement (including the Transaction Term Sheet) and any other required agreements to effectuate and consummate the Transactions and the transactions contemplated by the Definitive Documents;
(e) use commercially reasonable efforts to actively oppose and address, oppose, and/or object to the efforts of any person or Entity seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely objections or written responses responses), in a Chapter 11 Case) each case to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of consistent with the Restructuring Transactions;
(e) negotiate terms and conditions in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult comply with their obligations under the advisors to respective engagement letters for the Consenting Stakeholders regarding and pay the implementation of the Restructuring Transactions Consenting Stakeholders’ Fees and the development of Alternative Restructuring ProposalsExpenses;
(h) upon reasonable request operate the business of the Consenting StakeholdersCompany in the ordinary course of its business in a manner that is consistent with its past practices and this Agreement, inform and use reasonable best efforts to preserve intact the advisors Company’s business organization and relationships with third parties (including, without limitation, suppliers, distributors, customers, and governmental and regulatory authorities and employees), in each to the Consenting Stakeholders as to: (i) the status and progress extent permitted by applicable orders of the Restructuring TransactionsBankruptcy Court, including progress in relation with respect to the negotiations of the Definitive DocumentsDIP/Cash Collateral Orders; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;and
(i) inform notify counsel to the Consenting Stakeholders as soon as reasonably practicable promptly (email being sufficient) after becoming aware of: (i) obtaining actual knowledge thereof of the happening or existence of any event that shall have made any part of the Transactions (including the Transaction Term Sheet) incapable of being consummated on or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment prior to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Partyapplicable Milestone(s); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 76.4, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support Support, act in good faith and take all steps reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to To the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use Use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the Restructuring implementation or consummation for the Transactions;
(d) Negotiate in good faith and use commercially reasonable efforts to actively finalize, execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Transactions, as contemplated by this Agreement;
(e) Provide counsel for the Consenting Noteholders a reasonable opportunity (which, to the extent reasonably practicable, shall be no less than two (2) Business Days) to review draft copies of all Definitive Documents that the Company Parties intend to file with the Bankruptcy Court;
(f) Actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eg) Consult and negotiate in good faith with the Consenting Noteholders and their advisors regarding the preparation and execution of the Definitive Documents and the implementation of the Transactions;
(h) Comply with all Milestones;
(i) Inform the Consenting Noteholder Advisors as soon as reasonably practicable after becoming aware of (i) any matter or circumstance which they know, or have reason to believe, to be a material impediment to the implementation or consummation of the Transactions, (ii) any notice of any commencement of any material involuntary insolvency proceeding, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iii) a breach of this Agreement (including a breach by any Company Party); (iv) any representation or statement made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made; (v) the initiation, institution or commencement of any material proceeding by a Governmental Authority or other Person (or communications indicating that the same may be contemplated or threatened) (x) involving any of the Company Parties or any of their respective current officers, employees, managers, directors, members or equity holders (in their capacities as such), or (y) challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby; (vi) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or to be set forth in) the Transaction Term Sheet, the Plan or any of the other Definitive Documents, incapable of being satisfied so as to permit consummation of the Transactions prior to the Outside Date; or (vii) the occurrence of a Termination Event;
(j) Use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdictions in which they are incorporated or organized;
(k) Upon reasonable request of the Consenting Noteholders (which, in each case, may be through the Consenting Noteholder Advisors), as applicable, use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to inform the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders Noteholder as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderNoteholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(il) inform counsel Negotiate in good faith upon reasonable request of any Party any modifications to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) Transactions that improve tax efficiency of the Transactions or are otherwise necessary to address any event or circumstance that has occurredlegal, financial, or structural impediment that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in may prevent the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) Transaction, in each case to the extent such modifications can be implemented without any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any adverse effect on such Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use Use commercially reasonable efforts to maintain seek additional support for the Transactions from their good standing under other material stakeholders to the Laws extent reasonably prudent and, to the extent the Company Parties receive any Joinders or Transfer Agreements, to notify the Consenting Noteholders Advisors and Consenting Noteholders of the state or other jurisdiction in which they are incorporated or organized;such Joinders and Transfer Agreements; and
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and Promptly pay the Consenting Senior Creditors each hereby agree to immediately seek an extension Noteholder Fees and Expenses in accordance with this Agreement on a monthly basis and within five (5) Business Days of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigationreceipt of invoices thereof, which motions invoices may be in summary form and shall not be opposed by the Consenting Senior Creditors; and (z) solely required to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingcontain time detail.
Appears in 1 contract
Samples: Transaction Support Agreement (Ferrellgas Partners Finance Corp)
Affirmative Commitments. Except as set forth expressly permitted in Section 79.02, during the Agreement Effective Period, each of the Company Parties agree Debtors agrees to, and agrees to cause each of its direct and indirect subsidiaries to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 Agreement and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classMilestones;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, impede, or delay the consummation of the Restructuring Transactions contemplated hereinTransactions, support and take all steps reasonably necessary and desirable to address any such impediment, and negotiate in good faith any appropriate additional or alternative provisions or agreements to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements take all steps reasonably necessary to effectuate and (i) consummate the Restructuring Transactions as contemplated by and (ii) execute and implement the Definitive Documents;
(e) not file or seek authority to file any pleading inconsistent with this Agreement, including the consent rights set forth in Section 3, or the Restructuring Transactions;
(f) use commercially reasonable efforts timely file a formal objection to seek additional support any motion, application, or pleading filed with the Bankruptcy Court seeking the entry of an order for relief that: (i) is materially inconsistent with this Agreement or any Definitive Document; or (ii) would, or would be reasonably expected to, frustrate the purposes of this Agreement or any Definitive Document, including by preventing the consummation of the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentTransactions;
(g) consult with the advisors timely file a formal objection or opposition to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposalsany motion, application, or adversary proceeding or other action or proceeding asserting any Settled Litigation;
(h) oppose and object to any motion, application, adversary proceeding, or cause of action filed with the Bankruptcy Court by any party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; (iii) dismissing the Chapter 11 Cases; or (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(i) oppose any objections filed with the Bankruptcy Court to the Plan, any other Definitive Document, or the Restructuring Transactions;
(j) support inclusion in the Confirmation Order of (i) findings of fact and conclusions of law acceptable to the Required Consenting BrandCo Lenders that all claims and causes of action asserted in the Adversary Proceeding are Estate Causes of Action and released under the Plan, (ii) an injunction acceptable to the Required Consenting BrandCo Lenders barring any Person from pursuing any such claims or causes of action or any other claims arising out of or related to the facts and circumstances alleged in the Adversary Proceeding, and (iii) a bar order prohibiting the assertion by any party that is not a Released Party of any claim for indemnity or contribution against any Released Party arising out of or reasonably flowing from the claims or allegations in any claim that is released as against the Released Parties under the Plan, in each case to be binding and final from and after the Plan Effective Date;
(k) (i) prior to the hearing on the Disclosure Statement, take all actions necessary to cause an order acceptable to the Required Consenting BrandCo Lenders, the Debtors and the Required Consenting 2016 Lenders staying the Adversary Proceeding and holding such litigation in abeyance as to all parties to the Adversary Proceeding pending confirmation of the Plan and providing for the automatic dismissal of the Adversary Proceeding with prejudice as to all parties to the Adversary Proceeding upon the occurrence of the Plan Effective Date (the “Adversary Stay and Dismissal Order”) to be submitted to the Bankruptcy Court, (ii) make a request at the hearing on the Disclosure Statement for the Adversary Stay and Dismissal Order to be entered by the Bankruptcy Court, and (iii) support the entry of the Adversary Stay and Dismissal Order by the Bankruptcy Court and deliver all consents necessary thereto;
(l) inform counsel to the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, and the Creditors’ Committee within two (2) Business Days after becoming aware of (i) any matter or circumstance, that they know or believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ii) a breach of this Agreement (including a breach by any Debtor); or (iii) any representation or statement made or deemed to be made by any Debtor under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made;
(m) upon reasonable request of the any Consenting StakeholdersCreditor Party, reasonably and promptly inform the advisors counsel to the Consenting Stakeholders as tosuch party of: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor Party, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body body, or any stock exchange;. For the avoidance of doubt, the Debtors shall continue to provide financial data to stakeholders, including the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, and the Creditors’ Committee, as required by the Final DIP Order; and
(n) negotiate in good faith an amendment to the Debt Commitment Letter to reflect the increase of the Aggregate Rights Offering Amount from $650 million to $670 million and to provide in a manner consistent with the changes that were made to the Backstop Commitment Agreement in connection with the execution of this Agreement that the Backstop Commitment Cash Premium (as defined in the Debt Commitment Letter) shall not be payable if the Backstop Commitment Letter is terminated by any party thereto as a result of (i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event entry of Confirmation Order or circumstance that has occurredthe Backstop Order being denied, or that is reasonably likely any of such orders being reversed, vacated, reconsidered or otherwise ceasing to occur (and if it did so occur)constitute a final order, that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter ruling in the Adversary Proceeding that would render confirmation of the Plan impractical or circumstance which they knowimpossible, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice applicable law or order of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt governmental unit shall prevent or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with prohibit the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress confirmation of the Company Parties’ efforts with respect to Plan or the development consummation of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws a material portion of the state transactions contemplated by the Debt Commitment Letter or the other jurisdiction in which they are incorporated or organized;
First Lien Exit Facilities Documents (n) use commercially reasonable efforts to operate their business as defined in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(oDebt Commitment Letter), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Chapter 11 Restructuring Support Agreement (Revlon Consumer Products Corp)
Affirmative Commitments. Except as set forth in Section 79, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and (i) consummate the Restructuring Transactions in accordance with this AgreementAgreement (including the Restructuring Term Sheet), including by complying with Section 4 (ii) obtain entry of the DIP Orders, (iii) obtain entry of the U.S. Confirmation Order, the Dutch Sanction Order and Section 5 an order recognizing the Dutch Sanction Order in the Chapter 15 Proceedings, and (iv) prosecute and defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests U.S. Confirmation Order and by electing to seek and prosecute confirmation of the Plan over any non-accepting classDutch Sanction Order;
(b) comply with each Milestone;
(c) to the extent any legal legal, tax, or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required governmental and/or regulatory and/or third-party approvals for the Restructuring TransactionsTransactions (including, as applicable, U.S. Bankruptcy Court and Dutch Court approval);
(de) use commercially reasonable efforts negotiate in good faith and, where applicable, execute and deliver the Definitive Documents and any other agreements required to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactionsresponses);
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of operate their business in the Consenting Stakeholdersordinary course, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of taking into account the Restructuring Transactions, including progress in relation to the negotiations of Chapter 11 Cases and the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangeDutch Scheme Proceedings;
(i) timely file a formal objection, after consultation in good faith with the Ad Hoc Group Advisors, to any motion filed with the U.S. Bankruptcy Court by a third party seeking the entry of an order (i) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable, (ii) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the U.S. Bankruptcy Code), (iii) converting any of the Chapter 11 Cases to cases under chapter 7 of the U.S. Bankruptcy Code, or (iv) dismissing any of the Chapter 11 Cases;
(j) promptly pay or reimburse all reasonable and documented fees and out-of-pocket expenses of the Ad Hoc Group Advisors, in each case, in accordance with any engagement letter or fee letter between the Ad Hoc Group Advisors and the Company Parties, and for which an invoice has been received by the Company Parties;
(k) inform counsel to the Consenting Stakeholders Ad Hoc Group Advisors as soon as reasonably practicable (but no later than two (2) Business Days) after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), occurred that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, proceedings of the Company Parties or their Affiliates; (iv) any notice of any legal suit for payment of debt or securement of security from or by any person in respect of any Company Party, in each case, which they know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ivv) a material breach of this Agreement (including a breach by any Company Party); and (vvi) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or materially misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts at the request of the Specified Required Consenting Creditors, appoint a chief restructuring officer, who shall be selected by the Specified Required Consenting Creditors and be reasonably acceptable to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed Chief Executive Officer of any discussions regarding the development of any Alternative Restructuring ProposalDNI;
(m) use commercially reasonable efforts promptly upon receipt, but in all events, no later than 24 hours after such receipt, provide a copy of any Alternative Restructuring Proposal received by any Company Party to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;Ad Hoc Group Advisors; and
(n) use commercially reasonable efforts notify the Ad Hoc Group Advisors of any material governmental or third-party complaints, litigations, inquiries, investigations or hearings that are reasonably likely to operate their business in materially impede the ordinary course, taking into account consummation of the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (DIEBOLD NIXDORF, Inc)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) provided, further, that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with the terms, conditions, and applicable deadlines set forth in this Agreement, including by complying with Section 4 Agreement and Section 5 instruct each of their applicable subsidiaries to do the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classsame;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions, including the expiration of any applicable waiting periods;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentstakeholders;
(gf) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts continue ordinary course practices to maintain their good standing under the Laws of the state or other jurisdiction in which they are each Company Party and each of its subsidiaries is incorporated or organized;
(ng) use commercially reasonable efforts provide draft copies of all Definitive Documents to operate their business the PW Ad Hoc Group Advisors and the Akin Ad Hoc Group Advisors as soon as reasonably practicable, but in no event less than two (2) Business Days prior to the ordinary coursedate when the Company Parties intend to file such documents, taking into account the Restructuring Transactions; and
(o) refrain from taking , without limiting any action whatsoever, except as approval rights set forth herein, consult in this Section 6.01(o), good faith with respect to the Texas Litigation during PW Ad Hoc Group Advisors and the Agreement Effective PeriodAkin Ad Hoc Group Advisors regarding the form and substance of any such proposed filing; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during event that not less than two (2) Business Days’ notice is impossible or impracticable under the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayedcircumstances, the Company Parties may take shall provide draft copies of any action necessary motions or other pleadings to preserve the PW Ad Hoc Group Advisors and protect the Akin Ad Hoc Group Advisors as soon as otherwise practicable before the date when the Company Parties intend to file any such motion or other pleading;
(h) pay and reimburse in full in cash in immediately available funds (i) prior to the Petition Date, all Restructuring Expenses accrued within five (5) Business Days of receipt of an invoice therefor (and in any event, before the Petition Date if invoiced before such date), (ii) after the Petition Date, subject to any applicable orders of the Bankruptcy Court but without the need to file fee or retention applications, all Restructuring Expenses incurred prior to (to the extent not previously paid) on and after the Petition Date, but in any event within five (5) Business Days of delivery to the Company Parties of any applicable invoice or receipt, (iii) on the Plan Effective Date, all Restructuring Expenses incurred and outstanding in connection with the Restructuring Transactions (including any estimated fees and expenses estimated to be incurred through the Plan Effective Date), and (iv) after the Plan Effective Date, all accrued and unpaid Restructuring Expenses incurred in connection with the implementation and consummation of the Plan shall be paid by the Company Parties (or their successors in interest, including the Reorganized Debtors) on a regular and continuing basis promptly (but in any event within five (5) Business Days) following receipt of an invoice therefor; provided, further, that the Plan and/or relevant Definitive Documents will contain appropriate provisions to give effect to the obligations under this Section 7.01(h);
(i) provide, and direct their employees, officers, advisors, and other representatives to provide, to the PW Ad Hoc Group, the PW Ad Hoc Group Advisors, the Akin Ad Hoc Group, and the Akin Ad Hoc Group Advisors, (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business, (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the PW Ad Hoc Group, the PW Ad Hoc Group Advisors, the Akin Ad Hoc Group, and the Akin Ad Hoc Group Advisors, in all cases, subject to the appropriate agreement on use and confidentiality;
(i) stipulate to the allowance and amounts of the First Lien Claims, in accordance with the Restructuring Term Sheet, and to the validity of the liens securing such Claims and (ii) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party challenging the validity, enforceability, perfection, or priority of, or seeking avoidance, disallowance or subordination of, any portion of the First Lien Claims, or the liens securing such Claims (as applicable); provided that nothing herein shall limit any Company Party’s rights to pursue on or after the Plan Effective Date claims or causes of actions against any Entity (including any holder of First Lien Claims) that was the beneficiary of the repurchase, redemption, or other satisfaction by any Company Party of HoldCo Convertible Notes prior to the Petition Date;
(k) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order: (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; or (iii) dismissing the Chapter 11 Cases;
(l) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(m) in respect of Avaya Inc., seek authority from the Bankruptcy Court to execute the Escrow Direction Letter to otherwise instruct the Escrow Agent to consummate the Escrow Release pursuant to the Interim DIP Order, and, if such proceedingauthority is not granted pursuant to the Interim DIP Order, seek the same authority from the Bankruptcy Court pursuant to the Final DIP Order;
(n) to the extent collective bargaining agreement negotiations involving any of the Company Parties occur prior to or during the pendency of the Chapter 11 Cases, the Company Parties shall confer in advance with the PW Ad Hoc Group and the Akin Ad Hoc Group regarding all such negotiations;
(o) use best efforts to enter into the Exit ABL Facility on the terms and conditions acceptable to the Required Consenting Stakeholders on the Plan Effective Date; and
(p) upon completion of the investigation by the Audit Committee, the advisors to the Company Parties shall provide an update regarding the results and conclusions thereof to the PW Ad Hoc Group Advisors, the Akin Ad Hoc Group Advisors, and the Secured Exchangeable Notes Advisors.
Appears in 1 contract
Samples: Restructuring Support Agreement (Avaya Holdings Corp.)
Affirmative Commitments. Except as set forth in Section 77 of this Agreement, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions and the Settlement in accordance with this Agreement, including by complying with Section 4 and Section 5 the applicable milestones set forth on Schedule 1 to this Agreement (collectively, the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class“PSA Milestones”);
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory governmental, regulatory, environmental, and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions and the Settlement as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions and the Settlement from their other material stakeholders to the extent reasonably prudentprudent and to the extent the Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders of such Joinders and Transfer Agreements;
(f) to the extent reasonably practicable, provide counsel to any Consenting Stakeholders (each in their capacity as such) materially affected by such filing draft copies of documents that the Company Parties intend to file with Bankruptcy Court at least two (2) Business Days prior to the filing of such documents, as applicable;
(g) consult take commercially reasonable efforts to complete the preparation of and negotiate in good faith regarding, as soon as reasonably practicable after the date hereof (and in any case, in compliance with the advisors applicable PSA Milestones) and other Definitive Documents that are necessary to the Consenting Stakeholders regarding the implementation of consummate the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) timely file a formal objection to any motion filed with the Bankruptcy Court by any party seeking (i) the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting the Chapter 11 Cases to case under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, or (D) directing the appointment of an equity committee, whether pursuant to section 1102(a)(2) of the Bankruptcy Code or otherwise, in the Chapter 11 Cases (subject to Sections 7.01 and 7.02 of this Agreement); or (ii) the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization.
(i) provide to the Consenting Agent Advisors and the Ad Hoc Senior Noteholder Group Advisors, subject to the confidentiality restrictions set forth in the DIP Credit Agreement, reasonable information with respect to all Material Executory Contracts or Unexpired Leases of the Company Parties for the purposes of concluding which such Material Executory Contracts or Unexpired Leases the Company Parties intend (with the sole consent of the Required Consenting Revolving Lenders, the Required Ad Hoc Term Loan Lender Group, and the Required Consenting Term Loan Lenders, not to be unreasonably withheld or delayed, and in consultation with the Ad Hoc Senior Noteholder Group) to assume, assume and assign, or reject in the Chapter 11 Cases (to the extent applicable);
(j) subject to any applicable Bankruptcy Court orders regarding the review and payment of fees, pay the Consenting Stakeholder Fees and Expenses in accordance with Section 13.20 of this Agreement;
(k) support the mutual release and exculpation provisions to be provided in the Plan;
(l) take commercially reasonable efforts to negotiate and enter into any amendments or modifications of any Material Agreement or Material Executory Contract or Unexpired Lease upon the written direction of the Required Consenting Revolving Lenders, in a manner that is reasonably satisfactory to the Required Consenting Revolving Lenders as soon as reasonably practicable after receipt of such direction;
(m) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(in) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: :
(i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (iiA) any matter or circumstance which that they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiB) any occurrence, or failure to occur, of any event that would be likely to cause (1) any representation or warranty of the Company Parties contained in this Agreement, the Plan, the DIP Facility, or the Plan Documents being untrue or inaccurate in any material respect, (2) any covenant of any of the Company Parties contained in this Agreement, the Plan, the DIP Facility, or the Plan Documents not to be satisfied in any material respect, or (3) any condition precedent contained in this Agreement, the Plan, the DIP Facility, or the Plan Documents not occurring or becoming impossible to satisfy; (C) any notice of any commencement of any material involuntary insolvency proceedingsInsolvency Proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (ivD) a breach of this Agreement (including a breach by any Company Party); and (vE) any representation or statement made or deemed to be made by them under this Agreement which that is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;; and
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the receipt by the Company Parties receive of any written notice (1) from any third party alleging that the consent of such party is or may be required in connection with the Term Loan/PGN Group and/or transactions contemplated by the Term Loan/PGN Group Representatives unless Restructuring Transactions; (B) from any governmental body in connection with this Agreement, the proponent Plan, the DIP Facility, or the Plan Documents or the transactions contemplated by the Restructuring Transactions; (C) of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with any proceeding commenced, or, to the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress knowledge of the Company Parties’ efforts with , threatened against the Company Parties, relating to or involving or otherwise affecting in any material respect to the development transactions contemplated by the Restructuring Transactions; or (D) of any Alternative Restructuring Proposals;alleged default, breach, waiver, or termination of this Agreement, the Plan, the DIP Facility, or the Plan Documents.
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(mo) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(np) use commercially reasonable efforts to not (i) operate their business in outside the ordinary course, taking into account the Restructuring Transactions; and
, without the consent of the Required Consenting Revolving Lenders or (oii) refrain from taking Transfer any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, asset or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) right of the Company Parties and or any asset or right used in the Consenting Senior Creditors each hereby agree to immediately seek an extension business of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay any person or Entity outside the Texas Litigationordinary course of business, which motions shall not be opposed by except in each case with the Consenting Senior Creditors; and (z) solely to consent of the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayedRequired Ad Hoc Term Loan Lender Group, the Company Parties may take Required Consenting Revolving Lenders, and the Required Consenting Term Loan Lenders and in consultation with the Ad Hoc Senior Noteholder Group;
(q) on or after the date hereof, not engage in any action necessary to preserve and protect their rights in such proceedingmaterial merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside of the ordinary course of business other than the Restructuring Transactions.
Appears in 1 contract
Samples: Plan Support Agreement (Vanguard Natural Resources, Inc.)
Affirmative Commitments. Except as set forth in Section 75.03, during the Agreement Effective Period, the Company Parties agree agrees to use commercially reasonable efforts to:
(a) support and take all steps reasonably necessary and or desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with the terms of this Agreement (including the Milestones);
(b) support and take all steps reasonably necessary or desirable to consummate the I Squared Infrastructure Sale and effect the I Squared Infrastructure Sale Proceeds Paydown prior to commencing the Chapter 11 Cases (to the extent the RSA Holdings Condition is satisfied) and in accordance with this Agreement (including the Milestones) and the I Squared Infrastructure Sale Agreement, including (i) entering into the I Squared Infrastructure Sale Agreement Amendment, (ii) filing the I Squared Infrastructure Sale Assumption Motion, if applicable, and obtaining the entry of either the I Squared Infrastructure Sale Assumption Order or the Confirmation Order, as applicable, by complying the Bankruptcy Court approving assumption of all I Squared Infrastructure Sale Transaction Documents by the applicable Debtor(s) party to each I Squared Infrastructure Sale Transaction Document and (iii) obtaining entry of the Confirmation Order approving the I Squared Release consistent with Section 4 14.02 of this Agreement;
(c) support and Section 5 take all steps reasonably necessary or desirable to propose, prosecute, and consummate the Plan, which to the extent they hold or otherwise control any Company Claims/Interests and that an I Squared Infrastructure Sale Approval Motion is not filed, shall (i) provide for the assumption of all I Squared Infrastructure Sale Transaction Documents by electing the applicable Debtor(s) party to seek and prosecute confirmation each I Squared Infrastructure Sale Transaction Document, consistent with the terms of the Plan over any non-accepting classI Squared Infrastructure Sale Agreement and consistent with this Agreement, and (ii) provide for the I Squared Release as set forth more fully in Section 14.02 of this Agreement;
(bd) support and take all steps reasonably necessary and desirable to obtain entry of the Cash Collateral Orders, the Disclosure Statement Order, and the Confirmation Order;
(e) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinor the I Squared Infrastructure Sale, support and take all steps reasonably necessary and or desirable to address any such impediment;
(cf) use commercially reasonable efforts to obtain any and all required regulatory governmental, regulatory, and/or third-party approvals for the Restructuring Transactionsand the I Squared Infrastructure Sale, including FCC Approval, Antitrust/FDI Approval, the Governmental Approvals, and any and all approvals required of any other U.S. or foreign regulatory agencies (in each case, if and as required, or otherwise reasonably deemed advisable by the Company and the Required Consenting Creditors after good faith discussions), including, as applicable, (i) promptly commence any required regulatory approval processes, including (x) cooperate in the preparation, filing and prosecution of any FCC Applications (including the FCC Pro Forma Notices), and any required notices, filings and applications with any relevant Governmental Regulatory Authority or Antitrust/FDI Authority, including by providing the Consenting Creditors’ Advisors with advance copies of any such notices, filings and applications within a reasonable amount of time to allow for the provision of comments, and (y) oppose any petitions to deny or other pleadings or objections filed or any request, attempt, or offer to impose any such conditions or limitations on any approvals with respect to such notices and applications, (ii) evaluate in cooperation and coordination with the Consenting Creditors’ Advisors, the path to approval by each jurisdiction, (iii) where prior approval is not required, provide any required notifications to the FCC or any applicable Governmental Regulatory Authority or Antitrust/FDI Authority with respect to the Restructuring and the I Squared Infrastructure Sale, (iv) promptly respond to any reasonable request by the FCC, any Governmental Regulatory Authority, or Antitrust/FDI Authority for any additional information, filing, documents, or other submissions, (v) take, or assist in the taking of, any and all commercially reasonable steps to obtain the required Governmental Approval, Antitrust/FDI Approvals, or FCC Approval without undue delay, and (vi) provide the Consenting Creditors’ Advisors with regular progress reports with respect to regulatory approval processes and, at the reasonable request of the Consenting Creditors’ Advisors, make any informal inquiry regarding expediting such regulatory approval processes, provided, that any agreements with or commitments to the FCC, or any applicable Governmental Regulatory Authority or Antitrust/FDI Authority, including any decision to accept and/or not to oppose any proposed material conditions or limitations on any such required approvals shall require the prior approval of the Required Consenting Creditors, not to be unreasonably withheld, conditioned or delayed;
(dg) use commercially reasonable efforts to actively oppose and object subject to the efforts terms and conditions of any person seeking to object tothis Agreement, delay, impede, or take any other action to interfere cooperate with the acceptanceConsenting Creditors, implementationas necessary, in connection with any filing or other submission to the Defense Counterintelligence and Security Agency to effectuate continuance of the Company’s facility and personnel security clearances after consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsRestructuring;
(eh) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions and the I Squared Infrastructure Sale as contemplated by this Agreement and the I Squared Infrastructure Sale Agreement;
(fi) use commercially reasonable efforts to seek additional support for the Restructuring, the I Squared Infrastructure Sale, and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement from their its other material stakeholders to the extent reasonably prudentstakeholders;
(gj) consult with the advisors to promptly provide the Consenting Stakeholders regarding the implementation Creditors’ Advisors and I Squared’s advisors with notice of satisfaction of the Restructuring Transactions RSA Holdings Condition, and in any event no later than one (1) calendar day following the development of Alternative Restructuring Proposalssatisfaction thereof;
(hi) provide the Consenting Creditors’ Advisors with draft copies of (x) all First Day Pleadings at least three (3) Business Days in advance of the Petition Date and (y) any other material motions, documents, and other pleadings materially affecting any Consenting Creditor (including, but not limited to, all second-day pleadings, the Plan, the Disclosure Statement, ballots and other Solicitation Materials, any proposed amended version of the Plan or the Disclosure Statement, a proposed Disclosure Statement Order, a proposed Confirmation Order, and any other Definitive Document) that the Company intends to file with the Bankruptcy Court, promptly but in no event later than three (3) Business Days in advance of the filing thereof and (ii) without limiting any approval rights set forth in this Agreement, consult in good faith with the Consenting Creditors’ Advisors regarding any comments to draft copies provided pursuant to sub-clause (i);
(l) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or (iv) subject to the facts known to the Company as of the Agreement Effective Date remaining unchanged, and subject to the Company’s fiduciary duties, challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the Consenting Creditor Claims or the liens securing the Consenting Creditor Claims (as applicable);
(m) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a chapter 11 plan, as applicable;
(n) provide the Consenting Creditors’ Advisors with (i) regular updates as to the status of the Internal Review, the Restatement, and the Restated Financial Statements, reasonable access to the Parent’s interim Chief Financial Officer, and (ii) two (2) days in advance drafts of any press releases and filings with the SEC relating to the Internal Review, Restatement, or Restated Financial Statements;
(o) upon reasonable request of any of the Consenting StakeholdersCreditors’ Advisors, inform the applicable advisors as to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Company, (ii) the status and progress of the Restructuring TransactionsRestructuring, including (iii) the status and progress in relation to of the negotiations of the Definitive Documents; , (iv) the status and progress of the I Squared Infrastructure Sale, (v) the status of the Company’s negotiations with other material stakeholders, including, to the extent applicable, any official committee appointed in the Chapter 11 Cases, and (iivi) the status of obtaining any necessary or desirable authorizations (including any authorizations, consents) , or approvals from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangebody, provided, that notwithstanding this Section 5.01(o)(vi), the Company Parties shall provide regular process updates regarding the FCC Approval and Governmental Approvals, as applicable;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(jp) (i) consult operate the business of the Company Parties in the ordinary course of business in a manner that is consistent with this Agreement and coordinate in good faith with the Term Loan/PGN Group past practices, and the Term Loan/PGN Group Representatives regarding preserve intact the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals business organization and relationships with third parties (including with respect to suppliers, distributors, customers, and governmental and regulatory authorities (including the Term Loan/PGN Group’s FCC)) and Term Loan/PGN Group Representatives’ involvement and participation in such activities); employees, (ii) promptly share subject to entry into commercially reasonable Confidentiality Agreements with the Company Parties, keep the Consenting Creditors reasonably informed about the operations of the Company Parties, (iii) subject to entry into commercially reasonable Confidentiality Agreements with the Company Parties, provide the Consenting Creditors any Alternative Restructuring Proposal that information reasonably requested regarding the Company Parties receive with and provide, and direct the Term Loan/PGN Group and/or Company Parties’ employees, officers, advisors, and other representatives to provide, to the Term Loan/PGN Group Representatives unless Consenting Creditors (A) reasonable access during normal business hours on reasonable advance notice to the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with Company Parties’ representatives and without disruption to the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress operation of the Company Parties’ efforts business, (B) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business for the purposes of evaluating the Company Parties’ assets, liabilities, operations, businesses, finances, strategies, prospects, and affairs and (C) such other information as reasonably requested by the Consenting Creditors’ Advisors, (iv) promptly notify the Consenting Creditors’ Advisors of any material governmental or third party complaints, litigations, inquires, orders to show cause, cease and desist orders, notices of violation, notice of apparent liability, orders of forfeiture, investigations, or hearings (or communications indicating that any of the foregoing is contemplated or threatened) (the parties acknowledge and agree that any written filings by, before, or with the FCC in which the Company Parties are seeking regulatory approval to emerge from bankruptcy is deemed material for purposes of this Section 5.01(p)(iv)), and (v) cooperate in good faith to structure the Restructuring Transactions in a tax efficient manner, and analyze additional asset-level information and, as appropriate, evaluate potential alternative value-maximizing structures; provided, that notwithstanding the foregoing, the Company shall not be required to (1) permit any inspection, or to disclose any information, that in the reasonable judgment of the Company, would cause the Company to violate its respective obligations with respect to confidentiality to a third party if the development of any Alternative Restructuring Proposals;
(k) use Company used its commercially reasonable efforts to provide obtain, but failed to obtain, the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access consent of such third party to such inspection or disclosure, (2) to disclose any legally privileged information regarding of the operations of CCOHCompany, or (3) to violate applicable Law;
(lq) use commercially reasonable efforts reasonably consult with the Consenting Creditors’ Advisors regarding the assumption or rejection of any executory contracts or unexpired leases prior to keep confirmation of the 2021 Noteholder GroupPlan;
(r) after the entry of the Confirmation Order, if requested by the Term Ad Hoc Lender Group, (i) cause Xxxxxxx X. Xxxxx and/or Xxxxxxx Xxxxxxxx III to resign from the Board of Directors of the Parent and Consenting Sponsors informed the Strategic Planning Committee and (ii) cause up to two additional directors selected by the Ad Hoc Lender Group and who have been designated to serve on the New Board by the Ad Hoc Lender Group, as set forth in the Plan Supplement, to be appointed to the Board of any discussions regarding Directors of the development Parent and the Strategic Planning Committee to replace Xxxxxxx X. Xxxxx and/or Xxxxxxx Xxxxxxxx III, as applicable; provided, that, if the Ad Hoc Noteholder Group selects Xxxxxxx Xxxxxxxx III to serve on the New Board as set forth in the Plan Supplement, then the Ad Hoc Lender Group shall not be able to request the removal of any Alternative Restructuring ProposalXxxxxxx Xxxxxxxx III without the consent of the Ad Hoc Noteholder Group;
(ms) use commercially reasonable efforts (i) substantially complete the Internal Review, and (ii) publicly file the Restated Financial Statements, in addition to maintain their good standing under all other outstanding financial statements (i.e. for the Laws of quarters ended June 30, 2020, September 30, 2020, March 31, 2021, and June 30, 2021 and for the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in year ended December 31, 2020), with the ordinary course, taking into account the Restructuring TransactionsSEC; and
(ot) refrain from taking promptly (and in any action whatsoeverevent, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during no later than five (5) Business Days after the Agreement Effective Period; providedDate, howeverso long as the Stock Transfer Agreement has been executed by the applicable parties) (i) file and diligently pursue all commercially reasonable steps within its control that are reasonably necessary to obtain, that from any Governmental Regulatory Authority or court to the extent required under applicable law, authorization or approval of the Spruce House Transfer as expeditiously as practicable (with the costs with respect thereto paid by Spruce House), including (A) replying to any deadline, order, inquiries or proceeding requires any party requests from such Governmental Regulatory Authority or court relating to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension processing of such deadlineapplications, order, and (B) opposing any objections to such application filed with any Governmental Regulatory Authority or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditorscourt; and (zii) solely cooperating with Spruce House in causing the Spruce House Transfer to the extent such deadlineoccur, order, and obtaining any required authorization or proceeding has not been extended approvals from any Governmental Regulatory Authority or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights court in such proceedingconnection therewith.
Appears in 1 contract
Samples: Restructuring Support Agreement (GTT Communications, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, each Consenting Stakeholder agrees, in respect of all of its Company Claims/Interests, severally, and not jointly, to the Company Parties agree extent permitted by Law and subject to the other terms hereof, to:
(a) support use commercially reasonable efforts to timely and take all steps reasonably necessary in good faith negotiate, support, implement and desirable to confirm the Plan perform its respective obligations under, deliver, and consummate the Restructuring Transactions on the terms contemplated in this Agreement, the Transaction Term Sheet, and the Definitive Documents, and, without limitation of the foregoing, in each case to the extent applicable to such Consenting Stakeholder: (i) consenting to the DIP Facility Documents, the Exit Facilities Documents and the Plan; (ii) voting all Company Claims/Interests owned or held by such Consenting Stakeholder and using commercially reasonable efforts to exercise any powers or rights available to it (including in any board, shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate), in each case in favor of any matter requiring approval to the extent necessary to implement the Transactions or reasonably requested by the Company Parties to implement the Transactions; and (iii) use commercially reasonable efforts to cooperate with and assist the Company Parties in obtaining additional support for the Transactions from the Company Parties’ other stakeholders;
(b) use commercially reasonable efforts to support and not oppose or object to the Transactions, and use commercially reasonable efforts to take any reasonable action necessary or reasonably requested by the Company Parties in a timely manner to effectuate the Transactions in accordance a manner consistent with this Agreement, including by complying the timelines set forth herein; provided that the foregoing shall not require any Consenting Stakeholder to file any pleadings with Section 4 and Section 5 to respect thereto;
(c) waive, as applicable, the extent they hold or otherwise control any rights it may have as a holder of Company Claims/Interests and Interests, or provide any consents reasonably required under, the Term Loan Credit Agreement, or the Company Parties’ (or their direct or indirect parent Entities’) Organizational Documents, or provide any notices, orders, instructions, or directions to the applicable Agents that, in each case, are reasonably necessary or reasonably requested by electing the Company Parties to seek and prosecute confirmation facilitate the consummation of the Plan over any non-accepting classTransactions in accordance with the terms, conditions, and applicable timelines set forth in this Agreement and the Transaction Term Sheet;
(bd) use commercially reasonable efforts to direct its respective advisors to cooperate with and assist the Company Parties in obtaining additional support for the Transactions from the Company Parties’ other stakeholders;
(e) to the extent any legal or structural impediment arises that would prevent, hinder, hinder or delay the consummation of the Restructuring Transactions contemplated hereinTransactions, support negotiate in good faith with the Company Parties and take all steps reasonably necessary and desirable the other Consenting Stakeholders appropriate additional or alternative provisions to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object legal or structural impediment to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts give any notice, order, instruction, or direction to seek additional support for the Restructuring Transactions from their other material stakeholders any applicable Agents reasonably necessary to give effect to the extent reasonably prudentTransactions;
(g) consult with forbear from the advisors to the Consenting Stakeholders regarding the implementation exercise of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations rights (including any consentsright of set-off) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if remedies it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them may have under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender GroupLoan Credit Agreement, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing agreement contemplated thereby or executed in connection therewith, as applicable, and under the Laws of the state applicable U.S. or other jurisdiction non-U.S. Law or otherwise, in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o)each case, with respect to the Texas Litigation following (each of this (i)-(ii), a “Specified Default”):
(i) any defaults, or potential defaults, resulting from entry into this Agreement or the Transaction, entry into or compliance with the DIP Credit Documents, or any maturities, including springing maturities, occurring during the Agreement Effective PeriodPeriod by any Loan Party; providedor
(ii) any actual or potential breach or default arising from the failure to satisfy or otherwise comply with, howeverin part or in full, that to the extent any deadline, order, or proceeding requires any party to take any action affirmative covenants set forth in the Texas Litigation during Term Loan Credit Agreement. Each Consenting Stakeholder specifically agrees that this Agreement constitutes a direction to each of the Agreement Effective Period, (x) Agents to refrain from exercising any remedy available or power conferred to any of the Agents against the Company Parties or any of their assets, in each case, solely as a result of the existence of any Specified Default. For the avoidance of doubt, nothing in this Section 5.01(g) shall restrict or limit the Consenting Stakeholders or any of Agents from taking any action permitted or required to be taken hereunder for the purposes of consummating the Transactions, including pursuant to any Definitive Document.
(h) each Consenting Stakeholder hereby authorizes (and is hereby deemed to have authorized for all purposes under the Term Loan Credit Agreement, the Existing Intercreditor Agreement, and otherwise, without requirement for any further action or agreement) the execution and entry into the DIP Facility Documents and the Consenting Senior Creditors Exit Facilities Documents and any documents related thereto or necessary therefor, as applicable, each hereby agree in accordance with the terms set forth the Definitive Documents; and
(i) subject to immediately seek an extension of the terms and conditions hereof, take such deadline, order, action as may be reasonably necessary or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed reasonably requested by the other Consenting Senior Creditors; Stakeholders to carry out the purposes and (z) solely to the extent such deadlineintent of this Agreement, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take including making and filing any action necessary to preserve and protect their rights in such proceedingrequired regulatory filings.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Subject to Section 76.03, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support support, act in good faith and take all steps actions reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all necessary or required regulatory and/or third-party approvals and consents for the consummation and implementation of any part of the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to finalize, execute and deliver the Definitive Documents, any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) use commercially reasonable efforts to obtain any and all necessary or required third-party approvals, consents and court orders for the consummation and implementation of the Royalty Class Action Settlement on the terms set forth in the Royalty Class Action Settlement Agreement;
(f) to the extent practicable and known by the Debtors (i) notify counsel for the Initial Consenting Noteholders and counsel to the Agent as soon as reasonably practicable if members of the Royalty Class Action Class who have Royalty Class Action Claims which, in the aggregate, exceed ten percent (10%) of the Settlement Cash Proceeds elect to opt-out of the Royalty Class Action Settlement, and (ii) provide counsel for the Initial Consenting Noteholders and counsel to the Agent, as soon as reasonably practicable upon request, with an update regarding the status of the responses from the members of the Royalty Class Action Class; and
(g) provide counsel for the Initial Consenting Noteholders and the Agent two (2) Business Days (or such time as is reasonably practicable) to review draft copies of all material pleadings, motions, and proposed orders (including without limitation the Plan, the Solicitation Materials, the First Day Pleadings, and all “second day” motions and proposed orders) that may affect the Consenting Creditors prior to any filing or execution thereof;
(h) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(ei) consult and negotiate in good faith with the Consenting Creditors and use commercially reasonable efforts to execute their advisors regarding the preparation and deliver execution of the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(hj) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) promptly inform counsel to the Initial Consenting Stakeholders Noteholders and the Agent in writing (email being sufficient) as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, believe to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iviii) a any breach of any of the terms, conditions, representations, warranties or covenants set forth in this Agreement (including a breach by any Company Party); and (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made; (v) the initiation, institution or commencement of any material proceeding by a Governmental Authority or other Person (or communications indicating that the same may be contemplated or threatened) (x) involving any of the Company Parties or any of their respective current officers, employees, managers, directors, members or equity holders (in their capacities as such), or (y) challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby; (vi) the occurrence of any Material Adverse Effect (as defined in the Backstop Commitment Agreement); (vii) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or to be set forth in) the Restructuring Term Sheet, the Plan or any of the other Definitive Documents, incapable of being satisfied so as to permit consummation of the Restructuring Transactions prior to the Outside Date; or (viii) the occurrence of a Termination Event;
(jk) if Company Party receives an Alternative Restructuring Proposal in the form of a term sheet or other written offer or proposal, the Company Parties shall (i) consult and coordinate in good faith with inform counsel to each of the Term Loan/PGN Group Initial Consenting Noteholders and the Term Loan/PGN Group Representatives regarding Agent in writing (email being sufficient) within five (5) Business Days of receiving such proposal, with such notice to include the material terms thereof (including the identity of the Person(s) involved) and the action taken or proposed to be taken by the Company Parties’ process to solicitParties in response thereto, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that provide counsel to each of the Company Parties receive Initial Consenting Noteholders and the Agent with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding regular updates as to the status and progress of the Company Parties’ efforts with respect to the development of any such Alternative Restructuring Proposals;
Proposal, and (kiii) use commercially reasonable efforts to provide respond promptly to reasonable information requests and questions from counsel to the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access Consenting Creditors relating to information regarding the operations of CCOHsuch Alternative Restructuring Proposal;
(l) operate their business and conduct their operations in the ordinary course in a manner consistent with past practices and in compliance with Law (taking into account the Restructuring Transactions and the pendency of the Chapter 11 Cases) and use commercially reasonable efforts to keep the 2021 Noteholder Grouppreserve intact their current business organizations and preserve their relationships with employees, the Term Lender Groupcustomers, suppliers, and Consenting Sponsors informed of any discussions regarding others having business dealings with the development of any Alternative Restructuring Proposal;Company Parties
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated incorporated, organized or organizedformed;
(n) timely file a formal objection (in consultation with counsel to the Initial Consenting Noteholders and the Agent) to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers), (ii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing any of the Chapter 11 Cases; (iv) seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a chapter 11 plan;
(o) use commercially reasonable efforts to operate their business in the ordinary course, taking into account seek additional support for the Restructuring TransactionsTransactions from their other material stakeholders to the extent reasonably prudent;
(p) use commercially reasonable efforts to comply with the Milestones set forth in this Agreement; and
(oq) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect provide counsel to the Texas Litigation during Initial Consenting Noteholders the Agreement Effective Period; provided, however, that estimated Professional Fee Escrow Amount no later than two (2) days prior to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement anticipated Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingDate.
Appears in 1 contract
Samples: Restructuring Support Agreement (Chaparral Energy, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the each Consenting Stakeholder severally, and not jointly and severally, agrees in respect of all of its Company Parties agree Claims/Interests (subject to Section 5.04) to:
(a) support and consummate the Plan in accordance with the terms and conditions set forth in this Agreement, and timely take all steps actions contemplated thereby and as necessary to support and achieve consummation of the Restructuring Transactions, including with respect to providing information as may be reasonably requested and necessary and desirable to confirm the Plan and obtain any necessary regulatory approvals to consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classTransactions;
(b) act in good faith and support the Restructuring Transactions, subject to finalization of the Definitive Documents in accordance with the terms and conditions set forth in this Agreement, including to vote and exercise any powers or rights available to it (including in any creditors’ meeting or in any process requiring voting or approval to which such Consenting Stakeholder is legally entitled to participate), in each case in favor of any matter requiring approval to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of necessary to implement the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary within the timeframe outlined herein and desirable in the Definitive Documents and not change or withdraw (or cause to address be changed or withdrawn) any such impedimentvote;
(c) use commercially reasonable efforts with respect to obtain any and all required regulatory and/or third-party approvals for the Restructuring TransactionsConsenting Senior Secured Noteholders, provide consent in accordance with the Consent Solicitation in order to effectuate the Proposed Amendments;
(d) use commercially reasonable efforts to actively oppose cooperate with and object assist the Company, as may be reasonably requested by the Company in obtaining additional support for the Restructuring Transactions from the Company Party’s other stakeholders;
(e) use commercially reasonable efforts to the efforts of give any person seeking to object tonotice, delayorder, impedeinstruction, or take direction to any other action applicable agent reasonably necessary to interfere with the acceptance, implementation, or consummation of give effect to the Restructuring Transactions (including, if applicablefor the avoidance of doubt, any notice, order, instruction, or direction required in connection with the timely filing execution and delivery of objections or written responses in a Chapter 11 Case) the Definitive Documents), on the terms and subject to the extent conditions of this Agreement; provided that no Consenting Stakeholder shall be required to provide an indemnity or incur any potential expense or liability in connection therewith, other than expenses that the Company parties have agreed in writing to reimburse or indemnify on terms satisfactory to such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsConsenting Stakeholder;
(ef) negotiate in good faith and use commercially reasonable efforts to finalize, execute and deliver the Definitive Documents and any other to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts be a party or to seek additional support for the Restructuring Transactions from their other material stakeholders which it has a consent right pursuant to the extent reasonably prudentSection 3.02;
(g) consult with consider in good faith any appropriate additional or alternative provisions or agreement necessary to address any legal, financial, or structural impediment that may arise that would prevent, hinder, impede, delay or are necessary to effectuate the advisors to the Consenting Stakeholders regarding the implementation consummation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, accordance with this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (Spirit Airlines, Inc.)
Affirmative Commitments. Except as set forth in Subject to Section 77 of this Agreement, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm consummate and complete the Plan Recapitalization Transactions and consummate implement the Restructuring Transactions terms of the Recapitalization Term Sheet in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Recapitalization Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals that are necessary or advisable for the Restructuring Recapitalization Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith with the other Parties and, where applicable, execute, deliver, and use commercially reasonable efforts to execute and deliver implement the Definitive Documents in accordance with the terms of this Agreement and any other required agreements to effectuate and consummate the Restructuring Recapitalization Transactions;
(e) except with respect to any actions related to the Recapitalization Transactions (or otherwise as contemplated by specifically provided for under this Agreement), use commercially reasonable efforts to (i) preserve intact in all material respects the current business operations of each Company Party, and (ii) preserve in all material respects its business organization and relationships with customers, vendors, suppliers, distributors, and others, in each case, having material business dealings with the Company Parties;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent they become aware of same, reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform promptly notify counsel to the Consenting Stakeholders as soon as reasonably practicable Term Loan Steering Committee and counsel to the Ad Hoc Committee of Unsecured Noteholders of (and in any event within two (2) Business Days after becoming aware of: obtaining actual knowledge thereof) (i) any event Governmental Body or circumstance that has occurredany other third party complaints, litigations, investigations, or that is reasonably likely hearings with respect to occur (and if it did so occur), that would permit any Party to terminate, this Agreement or would result in the termination of, this AgreementRecapitalization Transactions; (ii) any matter or circumstance which they knowmaterial breach by any Company Party in any respect of any of its obligations, representations, warranties, or suspect is likelycovenants set forth in this Agreement; (iii) the occurrence of, to or circumstances that render reasonably foreseeable the occurrence of, any Material Adverse Effect; or (iv) any threat or taking of any action by any Entity that would, or would reasonably be a material impediment to expected to, prevent, interfere with, delay, or impede the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person Recapitalization Transactions in respect of any Company Party; (iv) a breach of manner materially consistent with this Agreement and/or the Recapitalization Term Sheet;
(including g) maintain good standing and legal existence under the laws of the state or non-U.S. jurisdiction in which such Company Party is incorporated, organized or formed;
(h) pay and reimburse, on a breach by reasonably prompt basis, all Creditor Fees and Expenses;
(i) pay when due the Noteholder Cash Joinder Payment, and otherwise pay all fees payable under any Company Party); and (v) Definitive Document in accordance with the terms thereof, without setoff, deduction, or withholding for any representation taxes or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madeotherwise;
(j) (i) consult pay in cash all accrued and coordinate unpaid interest accrued through the Effective Date on all Unsecured Notes that are tendered and exchanged in good faith connection with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Recapitalization Transactions; and
(ok) refrain from taking any action whatsoever, except as agree to pay when due the fees set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action under “Fees” in the Texas Litigation during the Agreement Effective PeriodAmended Term Loan Term Sheet without setoff, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, deduction or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, withholding for any taxes or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingotherwise.
Appears in 1 contract
Samples: Transaction Support Agreement (Neiman Marcus Group LTD LLC)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support support, approve, implement, reasonably cooperate with each of SoftBank and each Consenting Noteholder, and take all commercially reasonable steps reasonably necessary and desirable necessary, or reasonably requested by SoftBank or the Required Consenting Noteholders to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 Agreement and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classTerm Sheet;
(b) use best efforts to promptly obtain any and all regulatory, governmental, and third-party approvals that are necessary or advisable to effectuate and consummate the extent any legal or structural impediment arises that would preventTransactions, hinder, or delay including making timely filings in order to preserve the consummation eligibility of the Restructuring Transactions contemplated hereinCompany to use Form S-3 for registration under the Securities Act, support as reasonably determined by the Company Parties, SoftBank, and take all steps reasonably necessary and desirable to address any such impedimentthe Required Consenting Noteholders;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals seek additional support for the Restructuring Transactions from their other material stakeholders, and the issuing creditors, letter of credit participants, and other applicable parties under the Credit Agreement, to the extent the Company Parties deem it reasonably prudent to consummate the Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute execute, deliver, implement, and deliver effectuate the Definitive Documents and any other required agreements that are necessary or advisable to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) on or prior to the Commencement Date, distribute the documents for the Consent Solicitations and Exchange Offers to eligible holders of the Unsecured Notes and file a preliminary proxy statement seeking WeWork shareholders’ approval of the Transactions, in accordance with the provisions of this Agreement (including the Term Sheet) and applicable requirements of the Securities Act, the Exchange Act, and the rules and regulations of the SEC thereunder;
(f) use commercially reasonable efforts to seek additional support for promptly pay in full, in cash, when due all reasonable, documented, and invoiced fees, costs, and out-of-pocket expenses of the Restructuring Transactions from Ad Hoc Group Advisors in accordance with their other material stakeholders to respective engagement letters or fee letters with the extent reasonably prudentCompany Parties;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation promptly pay in full, in cash, when due all reasonable, documented, and invoiced fees, costs, and out-of-pocket expenses of the Restructuring Transactions and the development of Alternative Restructuring ProposalsSoftBank Advisors in accordance with their respective engagement letters or fee letters;
(h) upon reasonable request if the Company Parties receive an unsolicited proposal or expression of interest in writing with respect to an Alternative Transaction, within twenty-four hours of the Consenting Stakeholdersreceipt of such proposal or expression of interest, inform notify the advisors Advisors of the receipt thereof, with such notice to include the material terms thereof to the Consenting Stakeholders as to: (i) the status and progress extent in accordance with any applicable confidentiality obligations of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangeCompany Parties;
(i) conduct its business in the ordinary course substantially consistent with past practice and in light of then-current market conditions, and use its commercially reasonable efforts to (i) preserve intact its material business organization, (ii) maintain in effect all of its material foreign, federal, state, and local licenses, permits, consents, franchises, approvals, and authorizations required to operate its business, and (iii) preserve relationships with its material landlords, customers, suppliers, and others having material business relationships with it to the extent practicable (it being understood that the Company Parties may modify or end any such relationships in the ordinary course of business as necessary); provided that, for the avoidance of doubt, the Company Parties may amend agreements in the ordinary course of business or in connection with, or as contemplated by, the Transactions;
(j) maintain its good standing under the Laws of the state or other jurisdictions in which they are incorporated or organized;
(k) inform counsel to SoftBank and counsel to the Consenting Stakeholders Noteholders as soon as reasonably practicable (and in any event within two (2) Business Days of such actual knowledge) after becoming aware of: of the following (to the extent not previously disclosed to counsel to SoftBank and counsel to the Consenting Noteholders prior to the Execution Date): (i) the occurrence, or failure to occur, of any event of which any Company Party has knowledge which the occurrence or circumstance that has occurred, or that is failure to occur of any such event would be reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance that exists which they knowit knows, or suspect reasonably believes is likely, to be a material impediment to the implementation of or preclude consummation of the Restructuring Transaction, (iii) receipt of any written notice from any governmental, judicial, or regulatory body or any stock exchange regarding any approval necessary or advisable to consummate the Transactions; (iiiiv) any notice or written threat of any commencement of any material voluntary or involuntary insolvency proceedings, legal suit for payment of debt material debt, or securement of material security from or by any person Person in respect of any Company Party; (ivv) a breach any notice or written threat of this Agreement any commencement of any proceeding commenced relating to the Transactions, including notifying the Advisors of any material governmental or third-party complaints, litigations, investigations, or hearings related to the Transactions; and (vi) provide the Advisors, SoftBank, or the Consenting Noteholders, as applicable, upon reasonable advance written notice to the Company Parties, timely and reasonable responses to all reasonable diligence requests and other information reasonably requested or reasonably necessary to consummate the Transactions, including “know your customer” and like materials, which documentation and information shall be subject to any applicable confidentiality restrictions to which SoftBank or any Consenting Noteholder may be subject; provided that the Company Parties shall not be required to distribute or share any portion of any document that is subject to work-product or other attorney-client privilege, where applicable Law prohibits such distribution, or is subject to confidentiality obligations of the Company Parties that prevent distribution;
(l) if any Company Party has actual knowledge of a breach by any Company Party of such Company Party); and (v) any representation ’s obligations, undertakings, representations, warranties, or statement made or deemed to be made by them under covenants set forth in this Agreement which is or proves to have been materially incorrect or misleading any other Definitive Document, furnish prompt written notice (and in any respect when made or deemed event within two (2) Business Days of such actual knowledge) to be madethe other Parties hereto;
(jm) upon reasonable request of SoftBank or any Consenting Noteholder, inform the SoftBank Advisors or the Ad Hoc Group Advisors, respectively, as to (i) consult and coordinate any material change in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding business or financial (including liquidity) performance of the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals Parties (including with respect to the Term Loan/PGN Group’s taken as a whole) and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of Transactions, including any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organizedmaterial changes thereto;
(n) use commercially reasonable efforts on and subject to operate their business the terms and conditions of the Backstop Commitment Agreement, conduct the Exchange Offers and Consent Solicitations pursuant to, and in accordance with, the ordinary courseOffering Memorandum, taking into account this Agreement, the Restructuring TransactionsTerm Sheet, and the Backstop Commitment Agreement; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadlinelegal or structural impediments arise that would prevent, orderhinder, or proceeding requires delay the consummation of the Transactions, (i) take all commercially reasonable steps necessary to eliminate any such impediment, including notifying the Advisors of any material governmental or third-party complaints, litigations, investigations, or hearings related to take the Transactions, and (ii) negotiate, subject to applicable Laws and regulations, in good faith appropriate additional or alternative provisions to eliminate any action such impediments; provided that (A) the material terms of the Transactions as contemplated herein and in the Texas Litigation during the Agreement Effective Period, Term Sheet shall be substantially preserved and (xB) the Company Parties additional or alternative provisions cannot have a material and adverse impact on the consideration or economic treatment of SoftBank or the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that Noteholders in the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingTransactions.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, subject to the terms and conditions of this Agreement, the Company Parties agree to:
(a) use commercially reasonable efforts to support and the Restructuring Transactions, act in good faith, take all steps actions, to the extent practicable and subject to the terms hereof, reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with the terms, conditions, and applicable deadlines set forth in this AgreementAgreement and the Definitive Documents, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classas applicable;
(b) comply with each Milestone;
(c) prepare materials necessary to market and sell substantially all of their assets (including by populating a data room, preparing teaser materials, and preparing outreach target lists) in a manner reasonably acceptable to the Required Consenting Noteholders and the Company Parties; provided that, upon the occurrence of a Toggle Event, the Debtors shall initiate a process to market and sell substantially all of their assets, which process shall be acceptable to the Required Consenting Noteholders and the Debtors;
(d) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts , including to obtain negotiate in good faith appropriate additional or alternative provisions to address any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object such impediment, in each case, in a manner reasonably acceptable to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsRequired Consenting Noteholders;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and, upon request, consult with the Required Consenting Noteholders (including through the Ad Hoc Group Advisors) regarding the status and the material terms of any negotiations with any such stakeholders;
(f) use commercially reasonable efforts to obtain any and all required governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
(g) consult with negotiate in good faith and use commercially reasonable efforts to execute (where applicable) and implement the advisors Definitive Documents and any other agreements required to the Consenting Stakeholders regarding the implementation of effectuate and consummate the Restructuring Transactions and the development of Alternative Restructuring Proposalsas contemplated by this Agreement;
(h) upon reasonable request operate the business of each of the Consenting Stakeholders, inform Debtors in the advisors ordinary course (other than changes in the operations resulting from or relating to the Restructuring Transactions or the filing of the Chapter 11 Cases) and in accordance with their business judgment and in a manner that is materially consistent with this Agreement and the business plan of the Debtors;
(i) as reasonably requested by the Required Consenting Stakeholders Noteholders (which, in each case, may be through the Ad Hoc Group Advisors), cause management and advisors of the Company Parties to inform and/or confer with the Ad Hoc Group Advisors as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and , (ii) the status of obtaining any necessary or desirable authorizations (including any consents) with respect to the Restructuring Transactions from each Consenting StakeholderNoteholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange, (iii) operational and financial performance matters (including liquidity), collateral matters, contract and lease matters, and the general status of ongoing operations and, in each of the foregoing cases (i)-(iii), provide timely and reasonable responses to all reasonable diligence requests with respect to the foregoing, subject to any applicable restrictions and limitations set forth in any Confidentiality Agreements then in effect;
(ij) inform provide to counsel to the Consenting Stakeholders Ad Hoc Noteholder Group drafts of all Definitive Documents and declarations related thereto (other than declarations in support of, or related to, retention applications, fee applications, or fee statements) that the Company Parties intend to file with the Bankruptcy Court as soon as reasonably practicable after becoming aware of: practicable, but in no event less than two (2) days (or such shorter period as may be necessary in light of exigent circumstances) prior to such filing;
(k) timely file a formal written reply to any objection filed with the Bankruptcy Court by any person with respect to the Definitive Documents;
(l) timely file a formal objection to any motion filed with the Bankruptcy Court by any person seeking the entry of an order (i) any event directing the appointment of a trustee or circumstance that has occurred, or that is reasonably likely to occur examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and if it did so occur(4) of the Bankruptcy Code), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they knowconverting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or suspect (iv) for relief that (y) is likelyinconsistent with this Agreement in any material respect or (z) would reasonably be expected to frustrate the purposes of this Agreement, to be a material impediment to the implementation or including by preventing consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts timely file a formal objection to maintain their good standing under any motion filed with the Laws Bankruptcy Court by any person seeking the entry of an order modifying or terminating the state or other jurisdiction in which they are incorporated or organizedCompany Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(n) use commercially reasonable efforts promptly (but in any event within three (3) Business Days) notify counsel to operate their business the Consenting Noteholders in writing of the occurrence, or failure to occur, of any event of which the Debtors have actual knowledge and which such occurrence or failure would likely cause (x) any representation of the Debtors contained in this Agreement to be untrue or inaccurate in any material respect, (y) any covenant of the Debtors contained in this Agreement not to be satisfied in any material respect, or (z) any condition precedent contained in the ordinary coursePlan related to the obligations of the Debtors not to occur or become impossible to satisfy;
(o) promptly (but in any event within three (3) Business Days) notify counsel to the Consenting Noteholders in writing of the issuance by any governmental authority, taking into account including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that would reasonably be expected to prevent the consummation of a material portion of the Restructuring Transactions;
(p) negotiate in good faith upon reasonable request of any other Party any modifications to the Restructuring Transactions that improve the tax efficiency of the Restructuring Transactions or are otherwise necessary to address any legal, financial, or structural impediment that may prevent the consummation of the Restructuring Transactions, in each case to the extent such modifications can be implemented without any adverse effect on such Company Party; and
(oq) refrain from taking pay the Transaction Expenses as and when due; provided, that, with respect to any action whatsoeverTransaction Expenses that were due and payable as of the Agreement Effective Date, except as set the Company Parties shall pay any such Transaction Expense not later than 3 Business Days after the Petition Date; provided, further, that failure to satisfy the obligation forth in this Section 6.01(o), with respect 7.01(q) shall give rise to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties a Termination Event and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely subject to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights cure period set forth in such proceedingSection 12.01(a).
Appears in 1 contract
Samples: Restructuring Support Agreement (Party City Holdco Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the each Consenting Stakeholder agrees, severally, and not jointly, in respect of all of its Company Parties agree Claims, to:
(ai) support vote and take all steps reasonably necessary and desirable exercise any powers or rights available to confirm the Plan and consummate the Restructuring Transactions it (including in accordance with this Agreementany board, including by complying with Section 4 and Section 5 shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case, in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests consistent with and by electing necessary to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for implement the Restructuring Transactions;
(dii) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object torefrain from changing, delayrevoking, impedeamending, or take any other action to interfere with the acceptancewithdrawing (or causing such change, implementationrevocation, amendment, or consummation withdrawal of) any vote or election referred to in clause (i) above except as otherwise permitted pursuant to this Agreement (including upon the occurrence of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsConsenting Stakeholder Termination Event);
(eiii) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required appropriate additional or alternative provisions or agreements to address any legal, financial, or structural impediment that may arise that would prevent, hinder, impede, delay, or are necessary to effectuate and consummate the consummation of, the Restructuring Transactions as contemplated by this AgreementTransactions;
(fiv) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders give any required notice, order, instruction, or direction to the extent reasonably prudent;
(g) consult with applicable Agents that, in the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request view of the Consenting Stakeholders, inform the advisors is necessary to the Consenting Stakeholders as to: (i) the status and progress of give effect to the Restructuring Transactions, including progress provided that in relation no event shall the Consenting Stakeholders be required to the negotiations of the Definitive Documents; and (ii) the status of obtaining provide an indemnity or bear responsibility for any necessary or desirable authorizations (including out-of-pocket costs related to any consents) from each Consenting Stakeholdersuch notice, any competent judicial bodyorder, governmental authority, banking, taxation, supervisoryinstruction, or regulatory body or any stock exchangedirection;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide obtain any Permits and Consents that are necessary for the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access Consenting RBL Lenders or Consenting Noteholders to information regarding the operations obtain, as applicable, to implement or consummate any part of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(ovi) refrain from taking any action whatsoever, except as set forth negotiate in good faith and use commercially reasonable efforts to execute and implement the Definitive Documents that are consistent with this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that (to the extent any deadline, order, or proceeding requires any party applicable) and to take any action in coordinate its activities with the Texas Litigation during the Agreement Effective Period, other Parties (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or practicable and subject to the applicable proceeding has not been abated or stayed, terms hereof) in respect of all matters concerning the Company Parties may take any action necessary to preserve implementation and protect their rights in such proceedingconsummation of the Restructuring Transactions.
Appears in 1 contract
Samples: Restructuring Support Agreement (Gulfport Energy Corp)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the Company Parties Filing Entities agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and timely consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use make commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use make commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 CaseBrazilian RJ Proceeding or Ancillary Proceeding) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Restructuring Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement, including the structuring and creation of intermediary holding companies in connection with the collateral and guarantee arrangements as described in the Term Sheet;
(f) pay and reimburse the Consenting Stakeholder advisors in accordance with the terms set forth in the Term Sheet;
(g) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders not already party hereto to the extent reasonably prudent, and to the extent the Company Parties receive any Joinders, notify the other Parties hereto of such Joinders;
(gh) pursue and take all steps reasonably necessary to (A) as soon as reasonably practicable, obtain orders of the Brazilian RJ Court in respect of the Restructuring Transactions, including obtaining entry of the Confirmation Order (including, if necessary, pursuant to Article 58 of the Brazilian Bankruptcy Law (an “Article 58 Approval”)), and the Recognition Orders in the Ancillary Proceedings, (B) prosecute and defend any appeals related to the order accepting the PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT RJ filing, Confirmation Order or any Recognition Orders, (C) support and consummate the Restructuring Transactions in accordance with this Agreement, including the good-faith negotiation, preparation and filing of the Restructuring Documents; (D) execute and deliver any other required agreements to effectuate and consummate the Restructuring Transactions; and (E) complete the Restructuring Transactions;
(i) consult with the advisors to the Consenting Stakeholders and Shareholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to timely file the negotiations of Plan with the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madeBrazilian RJ Court;
(j) subject to any applicable confidentiality agreements, provide to counsel for the Consenting Stakeholders and Shareholders draft copies of all documents any Filing Entities intend to file with the Brazilian RJ Court or any court pursuant to any Ancillary Proceedings, at least five (i5) Business Days (or, if such period is not practicably possible given unforeseen developments in the Brazilian RJ Proceeding or any Ancillary Proceedings, as early as practically possible) prior to making such filing, and to consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives such counsel regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s form and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development substance of any Alternative Restructuring Proposalssuch proposed filing;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Plan Support and Lock Up Agreement
Affirmative Commitments. Except as set forth in Subject to Section 78, during the Agreement Effective Period, subject to the terms and conditions hereof, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gf) consult with the advisors to provide counsel for the Consenting Stakeholders regarding a reasonable opportunity under applicable circumstances to review draft copies of all substantive pleadings and proposed orders, including, the implementation First Day Pleadings and all Definitive Documents;
(g) continue ordinary course practices to maintain good standing under the jurisdiction in which each Company Party and each of its subsidiaries is incorporated or organized and continue to operate the business in the ordinary course of business customary in the normal course of ordinary operations consistent with past practice taking into account the Chapter 11 Cases and Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to cooperate in good faith and coordinate with the Consenting Stakeholders as to: (i) to structure and implement the status Restructuring Transactions in a tax efficient manner and progress take all reasonable actions necessary or reasonably requested by the Consenting Stakeholders to facilitate the consummation of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel negotiate in good faith and use commercially reasonable efforts to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) execute and deliver any event appropriate additional or circumstance alternative provisions or agreements to address any legal, financial, strategic or structural impediment that has occurredmay arise that would prevent, hinder, impede, delay, or that is be reasonably likely necessary to occur (and if it did so occur), that would permit any Party to terminate, or would result in effectuate the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide oppose any party or person taking or seeking to take any actions contemplated in Section 7.02 of this Agreement;
(k) pay in full and in cash all fees, costs, and expenses in accordance with Section 16.21 of this Agreement and the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOHCash Collateral Order(s);
(l) use commercially reasonable efforts timely file a formal objection to keep any motion filed with the 2021 Noteholder Group, Bankruptcy Court by a third party seeking the Term Lender Group, entry of an order: (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and Consenting Sponsors informed (4) of the Bankruptcy Code); (ii) converting any discussions regarding of the development Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; or (iii) dismissing any Alternative Restructuring Proposalof the Chapter 11 Cases;
(m) use commercially reasonable efforts timely file a formal objection to maintain their good standing under any motion filed with the Laws Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the state or other jurisdiction in which they are incorporated or organized;Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable; and
(n) use commercially reasonable efforts to operate their business in comply with the ordinary courseterms, taking into account conditions, and obligations of the Restructuring Transactions; and
(oCash Collateral Order(s) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed once entered by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingBankruptcy Court.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during (a) During the Agreement Effective PeriodPeriod as to each Consenting Creditor Party, such Consenting Creditor Party agrees, (in the case of each Consenting Creditor Party, in respect of all of its Company Parties agree Claims/Interests presently owned and hereafter acquired (for so long as it remains the beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial holders thereof)), to:
(ai) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation and implementation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(dii) [reserved;]
(iii) negotiate in good faith and use commercially reasonable efforts to actively oppose execute and object implement the Definitive Documents to which it is required to be a party;
(iv) with respect to each Consenting Lender, prior to the date by which the Consenting Lender shall be required to vote on the Plan, vote each of its Company Claims/Interests (including, with respect to any unsettled trades by using commercially reasonable efforts to exercise all rights it has under the related trade confirmation to cause and direct the applicable holder of such Company Claims/Interests to vote) to accept the Plan by delivering its duly executed and completed ballot accepting the Plan in accordance with the Solicitation Materials;
(v) with respect to each Consenting Lender, to the extent it is permitted to opt out of the releases set forth in the Plan, elect not to opt out of the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(vi) with respect to each Consenting Lender, to the extent that it is permitted to opt in to the releases set forth in the Plan, elect to opt in to the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(vii) with respect to each Consenting Lender, not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any person seeking vote or election referred to in clause (ii), (iv), (v), or (vi) above;
(viii) support, and not directly or indirectly object to, delay, impede, or take any other action to interfere with the acceptancewith, implementation, Confirmation or consummation of the Plan;
(ix) support, and not directly or indirectly object to, delay, impede, or take any other action to interfere with, any motion or other pleading or document filed by a Debtor in the Bankruptcy Court or any other court that is consistent in all respects with this Agreement and the Restructuring Transactions Transactions;
(includingx) with respect to each Cash-Out Backstop Lender, not make the Class 4 Equity Election in respect of the treatment under the Plan for such Consenting 2016 Xxxxxx’s 2016 Term Loan Claims; provided that the Cash-Out Backstop Lenders, other than the Specified Cash-Out Backstop Lenders, may be deemed to make the Class 4 Equity Election in accordance with the Plan in the event the Class 4 Equity Election is made for less than $543 million of Allowed OpCo Term Loan Claims in the aggregate;
(xi) with respect to the Consenting Lenders, if reasonably requested by counsel to the Ad Hoc Group of BrandCo Lenders, execute and deliver any documentation reasonably requested by counsel to the Ad Hoc Group of BrandCo Lenders necessary to evidence such Consenting Lender’s election under section 1111(b)(2) of the Bankruptcy Code for such Consenting Lender’s 2020 Term B-1 Loan Claims, 2020 Term B-2 Loan Claims, and/or OpCo Term Loan Claims, as applicable; and
(b) In addition to the commitments set forth in Section 5.01(a), during the Agreement Effective Period as to the Creditors’ Committee, the Creditors’ Committee agrees to:
(i) upon the written request of the Debtors, timely filing file a formal objection, or joinder to any such objection, to any motion, application, or other pleading filed with the Bankruptcy Court or any other court seeking the entry of objections an order for relief that: (A) is inconsistent with this Agreement in any material respect; or written responses in a Chapter 11 Case(B) to would, or would be reasonably expected to, frustrate the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions;
(eii) negotiate provide, for inclusion in good faith the Solicitation Materials, a letter recommending that all holders of General Unsecured Claims and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation Unsecured Notes Claims vote in favor of the Restructuring Transactions Plan and grant the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result releases contained in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring TransactionsPlan; and
(oiii) refrain from taking upon the written request of the Debtors, timely file a formal objection or opposition to any action whatsoevermotion, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, orderapplication, or adversary proceeding requires any party to take any or other action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take asserting any action necessary to preserve and protect their rights in such proceedingSettled Litigation.
Appears in 1 contract
Samples: Chapter 11 Restructuring Support Agreement (Revlon Consumer Products Corp)
Affirmative Commitments. Except as set forth in Section 76.3 hereof, during the Agreement Effective Period, the Company Parties agree Debtor agrees to:
(a) support the Restructuring Transactions, act in good faith, take all actions reasonably necessary and desirable to implement and consummate the Restructuring Transactions in accordance with the terms, conditions, and Milestones set forth in this Agreement and the Definitive Documents, as applicable;
(b) support and take all steps reasonably necessary and desirable to confirm facilitate solicitation of the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 Agreement and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classMilestones set forth herein;
(bc) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case in a manner reasonably acceptable to the Required Ad Hoc Senior Noteholder Parties and the Official Committee;
(cd) provide, and direct its employees, officers, advisors, and other representatives to provide to the Ad Hoc Group of Senior Noteholders and the Official Committee and their respective professionals, subject in each case to applicable confidentiality agreements with the Debtor, (i) reasonable access to the Debtor’s books and records on reasonable advance notice to the Debtor’s representatives and without disruption to the operation of the Debtor’s business, (ii) reasonable access to the management and advisors of the Debtor on reasonable advance notice to such persons and without disruption to the operation of the Debtor’s business, and (iii) timely and reasonable responses to all diligence requests;
(e) use commercially reasonable reasonably efforts to obtain any and all required regulatory governmental, regulatory, and/or third-party approvals or consents that are necessary or advisable for the implementation or consummation of the Restructuring Transactions;
(df) negotiate in good faith and use commercially reasonable efforts to execute and deliver, and perform its obligations under, the Definitive Documents and any other agreements required to effectuate and consummate the Restructuring Transactions, as contemplated by this Agreement;
(g) operate the businesses of the Debtor in the ordinary course (other than changes in the operations resulting from or relating to the Restructuring Transactions) and consistent with past practice and in a manner that is consistent in every material respect with this Agreement and the business plan of the Debtor;
(h) provide counsel to each of the Ad Hoc Group of Senior Noteholders and the Official Committee draft copies of all Definitive Documents that the Debtor intends to file with the Bankruptcy Court as soon as reasonably practicable, but in no event less than three (3) Business Days prior to such filing;
(i) actively oppose and object to the efforts of any person Person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(ej) timely file a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Case to a case under chapter 7 of the Bankruptcy Code; (iii) dismissing the Chapter 11 Case; (iv) modifying or terminating the Debtor’s exclusive right to file and solicit acceptances of a plan of reorganization; or (v) for relief that (A) is inconsistent with this Agreement in any respect or (B) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions;
(k) take all actions reasonably necessary and proper to prosecute and defend any appeals of the Confirmation Order;
(l) comply with all Milestones;
(m) promptly (but in any event within two (2) Business Days) notify counsel to each of the Ad Hoc Group of Senior Noteholders and the Official Committee in writing of the occurrence, or failure to occur, of any event of which the Debtor has actual knowledge and which such occurrence or failure would likely cause (x) any representation of the Debtor contained in this Agreement to be untrue or inaccurate in any material respect, (y) any covenant of the Debtor contained in this Agreement not to be satisfied in any material respect, or (z) any condition precedent contained in the Plan related to the obligations of the Debtor not to occur or become impossible to satisfy;
(n) promptly (but in any event within three (3) Business Days) notify counsel to each of the Ad Hoc Group of Senior Noteholders and the Official Committee in writing of the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that would reasonably be expected to prevent the consummation of a material portion of the Restructuring Transactions;
(o) maintain its and its subsidiaries’ good standing under the Laws of each state or other jurisdiction in which each is incorporated or organized to the extent required in connection with the Restructuring Transactions;
(p) following entry of the Professional Fee Reimbursement Order, promptly pay any reasonable Professional Fees and Expenses, Senior Note Trustee Expenses and Subordinated Note Trustee Expenses upon receipt of invoice(s) therefor; provided, that the Senior Noteholder Professionals, the Senior Note Trustee and the Subordinated Note Trustee shall submit copies of invoices for such fees and expenses to counsel to the Debtor and counsel to the Official Committee;
(q) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of counsel to each of the Consenting Stakeholders, inform Ad Hoc Group of Senior Noteholders and the advisors Official Committee any modifications to the Consenting Stakeholders as to: (i) Restructuring Transactions that are necessary to address any legal, financial, or structural impediment that may prevent the status and progress consummation of the Restructuring Transactions, including progress in relation each case to the negotiations of extent such modifications can be implemented without any adverse effect on the Definitive Documents; Debtor;
(r) provide the Supporting Parties with any documentation or information they may reasonably request to facilitate the Restructuring Transactions, including regarding the Debtor’s business operations and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholderthe Restructuring Transactions, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;subject in all cases to applicable confidentiality agreements with the Debtor; and
(is) inform counsel to the Consenting Stakeholders Supporting Parties as soon as reasonably practicable after becoming aware of: of (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Partythe Debtor); and (viv) any representation or statement made or deemed to be made by them the Debtor under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (SVB Financial Group)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support commence Solicitation on or before the date set forth in Section 4.01(a);
(b) commence the Chapter 11 Cases on or before the date set forth in Section 4.01(b);
(c) support, act in good faith, and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 including: (i) commencing Solicitation pursuant to the extent they hold or otherwise control any Company Claims/Interests Disclosure Statement and by electing to seek the related Solicitation Materials; and prosecute confirmation (ii) obtaining entry of the Plan over any non-accepting classConfirmation Order, approval of the applicable Definitive Documents, and consummation of the Restructuring Transactions pursuant to the Prepackaged Plan, in each case, in accordance with the applicable Milestones unless waived or modified in accordance with the terms hereof;
(bd) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case, in a manner acceptable to the Required Consenting Creditors;
(ce) use commercially reasonable efforts to oppose any party or person from taking any actions contemplated in Section 7.02(b);
(f) (i) stipulate to the allowance and amounts of Prepetition Term Loan Claims and Prepetition Convertible Notes Claims in accordance with the Prepackaged Plan and to the validity of the liens securing any such Claims and (ii) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party challenging the validity, enforceability, perfection or priority of, or seeking avoidance, disallowance or subordination of, any portion of the Prepetition Term Loan Claims or the Prepetition Convertible Notes Claims or the liens securing such Claims (as applicable);
(g) use best efforts to obtain any and all required regulatory governmental, regulatory, licensing, Bankruptcy Court, and/or third-party approvals for (including any necessary third-party consents) necessary to implement and/or consummate the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eh) negotiate in good faith and use commercially reasonable best efforts to execute and deliver implement the Definitive Documents (which shall be consistent with the requirements contained herein and in the Prepackaged Plan) and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fi) use commercially reasonable best efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentnecessary and coordinate their activities with the Consenting Creditors (subject to the terms hereof) in respect of all matters concerning the implementation and consummation of the Restructuring Transactions, and take any and all appropriate actions in furtherance of this Agreement;
(gj) consult provide the Consenting Creditors with any documentation or information they may reasonably request to facilitate the Restructuring Transactions, including regarding the Company Parties’ business operations and the status of the Restructuring Transactions, subject to any confidentiality restrictions the Company Parties may be subject to;
(k) provide the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsCreditors with reasonably timely responses to all reasonable diligence requests provided by any such advisors;
(hl) upon reasonable request of the Consenting Stakeholdersprosecute and defend any objections, inform the advisors oppositions, or appeals relating to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of First Day Pleadings, the Definitive Solicitation Procedures Motion, the DIP Facility Documents; and (ii) , the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderDisclosure Statement, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring ProposalConfirmation Order;
(m) use commercially reasonable efforts to maintain their good standing under oppose the Laws formation of an official committee of unsecured creditors in the state or other jurisdiction in which they are incorporated or organizedChapter 11 Cases;
(n) use commercially oppose the formation of an official committee of equity security holders in the Chapter 11 Cases;
(o) promptly pay the Restructuring Expenses and the reasonable efforts and documented fees and expenses of the Agents/Trustees as and when due; provided that, for the avoidance of doubt, to the extent that this Agreement is terminated in accordance with Section 13, the Company Parties’ reimbursement obligations under this Section 7.01(o) shall survive with respect to any and all such fees and expenses earned or incurred on or before the Termination Date, and such termination shall not automatically terminate any applicable fee or engagement letters, if any, between the Company Parties and the applicable party or professional;
(p) timely file a formal objection (in form and substance acceptable to the Required Consenting Creditors) to any motion filed with the Bankruptcy Court by any Entity seeking the entry of an order (i) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; (ii) dismissing the Chapter 11 Cases; (iii) modifying or terminating the Debtors’ exclusive right to file and solicit acceptances of a plan of reorganization; (iv) seeking the appointment of an official committee of unsecured creditors; (v) seeking the appointment of an official committee of equity security holders; (vi) seeking the appointment of a chapter 11 trustee; or (vii) for relief that (A) is inconsistent with this Agreement in any respect or (B) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of any Restructuring Transaction;
(q) comply with all Milestones;
(r) from the date hereof until the Effective Date, (i) operate their business in the ordinary coursecourse in a manner that is consistent with this Agreement and any Approved Budget, and use reasonable efforts to preserve intact the Company Parties’ business organization and relationships with third parties and employees (which shall not prohibit the Company Parties from taking actions outside of the ordinary course of business with the consent of the Required Consenting Creditors), taking into account the Restructuring Transactions; and(ii) operate the business in accordance with this Agreement and the Approved Budget, in a manner consistent with applicable Law and actions taken by similarly situated companies in the industry in which the Company Parties operate, and maintain good standing (or equivalent status under the Laws of its incorporation or organization) under the Laws of the jurisdiction in which the Company Parties are incorporated or organized, taking into account the Restructuring Transactions; (iii) consult in good faith with counsel for the Required Consenting Creditors prior to the Company Parties’ entry into, termination of, or modification of any Material Contracts, leases, or other arrangements; and (iv) subject to Section 8.01, refrain from entry into any transaction involving the direct or indirect sale, purchase, transfer, or other disposition of a material portion of the Company Parties’ assets without the prior written consent of the Required Consenting Creditors;
(os) refrain from taking the date hereof until the Effective Date, if any action whatsoeverCompany Party receives an Alternative Restructuring Proposal, except as set forth in this Section 6.01(osuch Company Party shall (a) within one (1) calendar day after the receipt of such Alternative Restructuring Proposal, notify the Consenting Creditor Advisors of the Receipt thereof, with such notice to include the material terms thereof (including the identity of the Person(s) involved), and thereafter promptly provide the Consenting Creditor Advisors with any amendments, supplements, or modifications to such Alternative Restructuring Proposal that are received by any Company Party and (b) consult with the Consenting Creditor Advisors with respect to such Alternative Restructuring Proposal (or any amendments, supplements or modifications thereto) upon the Texas Litigation during reasonable request of the Agreement Consenting Creditor Advisors;
(t) except with the prior written consent of the Required Consenting Creditors, from the date hereof until the Effective Period; providedDate, however(A) increase in any manner the base compensation, that to the extent any deadlinecash incentive or bonus opportunity, orderseverance, reward, award, or proceeding requires termination pay of any party to take employee or any action in the Texas Litigation during the Agreement Effective Period, (x) “insider” of the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadlineor their Affiliates, order(B) grant any new awards, or proceeding; (y) that amend or modify the terms of any outstanding awards for any employee or any “insider” of the Company Parties may file motions to xxxxx and/or stay the Texas Litigationor their Affiliates, which motions shall not be opposed by the Consenting Senior Creditors; and (z) it being agreed that, solely to the extent such deadlineof amounts and on terms that have been previously approved and authorized by the Required Consenting Lenders, orderthe payments contemplated by the View, Inc. Employee Cash Incentive Plan shall be permitted, (C) take any action to accelerate the vesting or lapsing of restrictions or payment, or proceeding has not been extended fund or stayed in any other way secure the payment, of material compensation or the applicable proceeding has not been abated benefits for any employee or stayed, any “insider” of the Company Parties or their Affiliates, (D) forgive any loans or issue any loans to any employee or any “insider” of the Company Parties or their Affiliates, (E) hire any employee or engage any individual independent contractor with annual base compensation in excess of $100,000, (F) terminate the employment of any employee (other than terminations for cause or terminations of employees with annual base compensation of less than $100,000 for any reason), or (G) amend or terminate any existing compensation or benefit plans or arrangements (including employment agreements);
(u) notify counsel to the Consenting Creditors within two (2) Business Days after obtaining knowledge of the happening or existence of any event that could prevent, hinder, delay, or make any part of the Restructuring Transactions (including the Prepackaged Plan) incapable of being consummated on or prior to the Outside Date;
(v) notify counsel to the Consenting Creditors within two (2) Business Days after obtaining knowledge of any (i) occurrence, or failure to occur, of any event which occurrence or failure would cause any covenant of the Company Parties not to be satisfied in any respect; (ii) receipt of any written notice by the Company Parties from any governmental body in connection with this Agreement or the Restructuring Transactions; (iii) receipt of any written notice by the Company Parties of any proceeding commenced or threatened against any Company Party relating to, involving, or otherwise affecting the Restructuring Transactions; or (iv) receipt of any notice from any party alleging that the consent of such party is or may be required in connection with the Restructuring Transactions; and
(w) (i) take all actions reasonably necessary or desirable to delist Existing Equity Interests from the Nasdaq Stock Market (“Nasdaq”) and to deregister under the Exchange Act as promptly as practicable in compliance with Securities and Exchange Commission (“SEC”) rules, (ii) file a Form 25 with the SEC to delist the Existing Equity Interests from Nasdaq and to deregister the Existing Equity Interests from Section 12(b) of the Exchange Act (unless Nasdaq has already filed a Form 25 with the SEC providing for such delisting and deregistration), (iii) file post-effective amendments (the “Post-Effective Amendments”) to terminate all of Parent’s currently effective registration statements under the Securities Act, (iv) file a Form 15 notifying the SEC of the suspension of Parent’s duty to file reports under Section 15(d) of the Exchange Act, and (v) take all actions reasonably necessary or desirable to ensure (A) that the New Common Interests (including the Tranche C Commitment Equity) shall not be listed on a public securities exchange and that the New Common Interests shall not be required to be listed on a recognized securities exchange, except, in each case, as otherwise may be required pursuant to the New Corporate Governance Documents, and (B) that the Reorganized Debtors shall not be voluntarily subjected to any action necessary to preserve and protect their rights in such proceedingreporting requirements promulgated by the SEC.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the each Consenting Creditor agrees, severally, and not jointly, in respect of all of its Company Parties agree Claims presently owned and hereafter acquired to:
(ai) support the Restructuring, and take all steps reasonably necessary vote and desirable exercise any powers or rights available to confirm the Plan and consummate the Restructuring Transactions it (including in accordance with this Agreementany board, including by complying with Section 4 and Section 5 shareholders’, or creditors’ meeting or in any process requiring voting or approval to which it is legally entitled to participate) in each case in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests and by electing necessary to seek and prosecute confirmation of implement the Plan over any non-accepting classRestructuring;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cii) use commercially reasonable efforts to obtain any cooperate with and all required regulatory and/or third-party approvals assist the Company Parties in obtaining additional support for the Agreement and Restructuring Transactionsfrom (1) in the case of the Consenting RBL Lenders, the other RBL Lenders, (2) in the case of the Consenting Second Lien Noteholders, the other Second Lien Noteholders, and (3) in the case of the Consenting Convertible Noteholders, the other Convertible Noteholders;
(diii) use commercially reasonable efforts take all steps reasonably necessary to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of consummate the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactionsaccordance with this Agreement;
(eiv) subject to Section 3, support, and not oppose, entry of the DIP Orders;
(v) give any notice, order, instruction, or direction to the applicable trustee(s) or agent(s) reasonably necessary to consummate the Restructuring, provided that in no event shall the Consenting Creditors be required to provide an indemnity or bear responsibility for any out of pocket costs related to any such notice, order, instruction, or direction;
(vi) negotiate in good faith and use commercially reasonable efforts to execute and deliver implement the Definitive Documents and any other to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment party or to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed which it has consent rights pursuant to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring TransactionsSection 3.02; and
(ovii) refrain from taking negotiate in good faith any action whatsoeveradditional or alternative provisions or agreements to address any legal, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, orderfinancial, or proceeding requires any party structural impediment that may arise that would reasonably be expected to take any action in the Texas Litigation during the Agreement Effective Periodprevent, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadlinehinder, orderimpede, delay, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action are necessary to preserve and protect their rights in such proceedingeffectuate the consummation of the Restructuring.
Appears in 1 contract
Samples: Restructuring Support Agreement (Denbury Resources Inc)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case, in a manner reasonably acceptable to the Required Consenting Creditors;
(c) use commercially reasonable efforts to (1) obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
Transactions and (d2) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation obtain orders of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses Bankruptcy Court in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation respect of the Restructuring Transactions;
(ed) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentnecessary and coordinate its activities with the other Parties hereto (subject to the terms hereof) in respect of all matters concerning the implementation and consummation of the Restructuring Transactions, and take any and all appropriate actions in furtherance of this Agreement;
(f) timely file a formal objection to any motion filed with the Bankruptcy Court by any person seeking the entry of an order (i) directing the appointment of an examiner with expanded powers or a trustee, (ii) converting the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Bankruptcy Cases, or (iv) for relief that (x) is inconsistent with this Agreement in any material respect or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement in any material respect, including by preventing the consummation of the Restructuring;
(g) consult with timely file a formal objection to any motion, application, or adversary proceeding challenging the advisors to validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the claims of the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsCreditors;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors provide written notice within two (2) Business Days (in accordance with Section 16.10 hereof) to the Consenting Stakeholders as to: Creditors between the date hereof and the Effective Date of (i1) the status and progress occurrence, or failure to occur, of any event of which the Company Parties have actual knowledge which occurrence or failure would be likely to cause (A) any covenant of the Restructuring TransactionsCompany Parties contained in this Agreement not to be satisfied in any material respect or (B) any condition precedent contained in the Plan not to timely occur or become impossible to satisfy, (2) receipt of any notice from any third party of which the Company Parties are aware alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring, and (3) receipt of any material notice of which the Company Parties are aware, including progress in relation from any governmental unit with jurisdiction, of any proceeding commenced, or, to the negotiations actual knowledge of the Definitive Documents; Company Parties, threatened against the Company Parties, relating to or involving or otherwise affecting in any respect the transactions contemplated by the Restructuring and (ii4) any failure of the status of obtaining Company Parties to comply, in any necessary material respect, with or desirable authorizations (including satisfy any consents) from each Consenting Stakeholdercovenant, any competent judicial body, governmental authority, banking, taxation, supervisorycondition, or regulatory body agreement to be complied with or any stock exchangesatisfied by it hereunder;
(i) inform provide draft copies of all material motions or applications, Definitive Documents and other documents (including, without limitation, all First Day Pleadings, the Plan, the Disclosure Statement, Solicitation Materials, any proposed amended version of the Plan or the Disclosure Statement, a proposed disclosure statement order and a proposed confirmation order) the Company Parties intend to file with the Bankruptcy Court to the counsel to the Consenting Stakeholders Creditors at least two (2) Business Days prior to the date when the Company Parties intend to file any such pleading or other document (provided that if delivery of such motions, orders or materials (other than the Plan, the Disclosure Statement, a disclosure statement order, a confirmation order or cash collateral order) at least two (2) Business Days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely prior to occur (and if it did so occurfiling), that would permit any Party to terminate, or would result and shall consult in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment good faith with such counsel to the implementation or consummation of Consenting Creditors regarding the Restructuring Transactions; (iii) any notice form and substance of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madesuch proposed filing with the Bankruptcy Court;
(j) subject to compliance with all applicable confidentiality agreements or obligations, provide to the Consenting Creditors and/or their respective professionals, upon reasonable advance notice to the Company Parties, (i1) consult reasonable access to the respective management and coordinate in good faith with advisors of the Term Loan/PGN Group and Company Parties for the Term Loan/PGN Group Representatives regarding purposes of evaluating the Company Parties’ finances and operations and participating in the planning process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); Restructuring, (ii2) promptly share prompt access to any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; information provided to any existing or prospective financing sources (including lenders under any exit financing) and (iii3) participate in no less than weekly (timely and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect reasonable responses to the development of any Alternative Restructuring Proposalsall diligence requests;
(k) use commercially reasonable good faith efforts to provide the Term Loan/PGN Group Representatives develop and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account structure the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth Transactions in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) a tax efficient manner for the Company Parties and the Consenting Senior Creditors;
(l) comply with all Milestones;
(m) pay the RSA Premium to the Consenting Creditors each hereby agree on the RSA Premium Payment Date; and
(n) pay all the reasonable and documented fees and expenses of the Ad Hoc Group of Secured Noteholders Advisors incurred on or prior to immediately seek an extension the date of such deadlinetermination of this Agreement, ordersubject to the terms of any applicable engagement letter or reimbursement letter, or proceedingas the case may be; (y) provided that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions any invoices shall not be opposed by the Consenting Senior Creditors; and (z) solely required to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingcontain individual time detail.
Appears in 1 contract
Samples: Restructuring Support Agreement (FTS International, Inc.)
Affirmative Commitments. Except Subject to Section 7, except as set forth in this Section 76, during the Agreement Effective Period, the Company Parties agree to:
(a) support support, act in good faith, and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 (i) commencing solicitation on the Plan pursuant to the extent they hold or otherwise control any Company Claims/Interests Disclosure Statement and by electing to seek related Solicitation Materials and prosecute confirmation (ii) obtaining entry of the Plan over any non-accepting classConfirmation Order, approval of the applicable Definitive Documents, and consummation of the Restructuring Transactions pursuant to the Plan, in each case, in accordance with the applicable Milestones unless waived or modified in accordance with the terms hereof;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable negotiate in good faith with the Required Consenting Lenders appropriate additional or alternative provisions or alternative implementation mechanics to address any such impediment;
(c) use commercially reasonable efforts to obtain any actively and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively timely oppose and object to the efforts of any person seeking in any manner to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the Debtors’ timely filing of objections or written responses in a the Chapter 11 CaseCases) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions after consultation with the Required Consenting Lenders;
(i) stipulate to the allowance and amounts of Term Loan Claims and Secured Notes Claims in accordance with the Restructuring Term Sheet and to the validity of the liens securing any such Claims and (ii) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party challenging the validity, enforceability, perfection, or priority of, or seeking avoidance, disallowance or subordination of, any portion of the Term Loan Claims or the Secured Notes Claims or the liens securing such Claims;
(e) timely file a formal objection to (in consultation with counsel to the Required Consenting Lenders) any motion, application, or proceeding filed with the Bankruptcy Court by any person seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers), (ii) converting any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (iii) dismissing any of the Chapter 11 Cases, (iv) seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of the Plan or (v) for relief that (A) is inconsistent with this Agreement, or (B) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of one or more of the Restructuring Transactions;
(ef) use commercially reasonable efforts to obtain any and all consents and third-party approvals that are necessary and/or advisable for the implementation or consummation of any part of the Restructuring Transactions;
(g) negotiate in good faith and use commercially reasonable efforts to execute execute, deliver, and deliver implement the Definitive Documents and any other necessary agreements that are consistent with this Agreement to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreementbe a party;
(fh) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gi) consult use commercially reasonable efforts to provide the Consenting Lenders with any documentation or information they may reasonably request to facilitate the Restructuring Transactions, including regarding the Company Parties’ business operations and the status of the Restructuring Transactions, subject to any confidentiality restrictions the Company Parties may be subject to;
(j) use commercially reasonable efforts to provide the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: Lenders with (i) reasonable access to, during regular business hours, the non-privileged, non-confidential books, work papers, records and materials of any Company Party, (ii) reasonable access to, during regular business hours, the personnel and applicable advisors of any Company Party to discuss the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) timely responses to all reasonable diligence requests provided by any such advisors; it being understood that the status foregoing cannot, and should not be construed to, (A) require the disclosure of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholderwork papers, any competent judicial bodymaterials, governmental authorityreports, banking, taxation, supervisorystatements, or regulatory body other information intended to be subject to attorney-client or work-product privilege or any stock exchangeother applicable privilege doctrines available under applicable law, or (B) override any existing confidentiality or other applicable obligations owed with respect to any such information;
(i) provide counsel for the Required Consenting Lenders draft copies of all Definitive Documents, including, but not limited to, all material motions or pleadings, and any drafts or proposed amended version of the Plan and Disclosure Statement that the Debtors intend to file with the Bankruptcy Court, to the extent practicable, no less than three (3) Business Days before the date of filing any such pleading or other document (or such shorter period as is necessary or appropriate under the circumstances), (ii) without limiting any approval or consent rights set forth in this Agreement, consult in good faith with counsel to the Required Consenting Lenders regarding the form and substance of any such proposed filing, (iii) not file, execute, distribute, or use (as applicable) any of the Definitive Documents unless each document is consistent with this Agreement and otherwise in form and substance acceptable to the Required Consenting Lenders, in their sole discretion, and (iv) provide draft copies of any motion or pleading (other than the Definitive Documents subject to clause (i) herein) that materially affects any Consenting Lender to the counsel of such Consenting Lender in no event less than three (3) Business Days prior to the date when the Debtors intend to file such motion or pleading with the Bankruptcy Court; provided, that in the event that not less than three (3) Business Days’ notice is impossible or impracticable under the circumstances, the Debtors shall provide such draft copies to the applicable Consenting Lenders as soon as otherwise practicable before the date when the Debtors intend to file any such motion or other pleading;
(l) inform counsel to the Required Consenting Stakeholders Lenders as soon as reasonably practicable after becoming aware of: (iA) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (iiB) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiC) any notice of any commencement of any material involuntary insolvency proceedingsbankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect, except as provided for in this Agreement, or of any legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (ivD) a breach of this Agreement (including a breach by any Company Party); and (vE) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their the good standing and legal existence of each Company Party under the Laws of the state or other jurisdiction in which they are incorporated it is incorporated, organized or organizedformed;
(n) use commercially reasonable efforts to operate their business conduct its businesses and operations in the ordinary course, taking into account course and in compliance with Law in a manner that is otherwise in compliance in all respects with all of the provisions of the Prepetition Facilities Documents;
(o) regardless of whether the Restructuring TransactionsTransactions are consummated, pay in full and in cash all of the Restructuring Fees and Expenses; and
(oi) refrain take all actions reasonably necessary or desirable to delist the Existing Equity Interests from taking any action whatsoeverthe Nasdaq Stock Market (“Nasdaq”) and to deregister under the Exchange Act as promptly as practicable in compliance with Securities and Exchange Commission (“SEC”) rules, except as set forth in this (ii) file a Form 25 with the SEC to delist the Existing Equity Interests from Nasdaq and to deregister the Existing Equity Interests from Section 6.01(o12(b) of the Exchange Act (unless Nasdaq has already filed a Form 25 with the SEC providing for such delisting and deregistration), with respect (iii) file post-effective amendments to terminate all of CalAmp’s currently effective registration statements under the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective PeriodSecurities Act, (xiv) file a Form 15 notifying the Company Parties SEC of the suspension of CalAmp’s duty to file reports under Section 15(d) of the Exchange Act, and the Consenting Senior Creditors each hereby agree (v) take all actions reasonably necessary or desirable to immediately seek an extension of such deadline, order, or proceeding; ensure (yA) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions New Equity Interests shall not be opposed listed on a public securities exchange and that Reorganized CalAmp shall not be required to list the New Equity Interests on a recognized securities exchange, except, in each case, as otherwise may be required pursuant to the New Corporate Governance Documents and (B) that Reorganized CalAmp and/or the Reorganized Debtors shall not be voluntarily subjected to any reporting requirements promulgated by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingSEC.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 the applicable Milestones as defined and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classset forth herein;
(b) take action in order to effectuate, if applicable, or otherwise not object to (x) a stay of the Adversary Proceeding, and (y) the dismissal with prejudice of the Adversary Proceeding and all Causes of Action asserted therein upon the Confirmation Order becoming a Final Order;
(c) support and take all steps reasonably necessary and desirable to facilitate solicitation of the Amended Plan in accordance with this Agreement, the Milestones, and any orders entered by the Bankruptcy Court;
(d) use commercially reasonable efforts to obtain entry of the Confirmation Order and to cause the Confirmation Order to become a Final Order;
(e) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Amended Plan or the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable use commercially reasonable efforts to negotiate in good faith with the Consenting Creditors in an effort to agree to appropriate additional or alternative provisions or alternative implementation mechanics to address any such impediment;
(cf) use commercially reasonable efforts to obtain any and all required regulatory (including self-regulatory) and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eg) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents Documentation and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fh) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders regarding the implementation Creditors of the Restructuring Transactions such Joinders and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders Transfer Agreements as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary soon as practicable after receiving such Joinders or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangeTransfer Agreements;
(i) provide draft copies of all substantive motions, documents, and other pleadings to be filed in the Chapter 11 Cases to counsel to each of the Consenting Noteholders, Bank Agent, and Consenting Crossholders if reasonably practicable at least two (2) Business Days prior to the date when the Company Parties intend to file such documents, and, without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to each of the Consenting Creditors regarding the form and substance of any such proposed filing; notwithstanding the foregoing, in the event that not less than two (2) Business Days’ notice is not reasonably practicable under the circumstances, the Company Parties shall provide draft copies of any such motions, documents, or other pleadings to counsel to the applicable Consenting Creditors as soon as otherwise reasonably practicable before the date when the Company intends to file any such motion, documents, or other pleading;
(j) subject to any confidentiality agreements between the Company and the Consenting Creditors and their advisors, provide, and direct their employees, officers, advisors, and other representatives to provide, to each of the Consenting Creditors, and each of their respective legal and financial advisors, (i) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (ii) such other information as reasonably requested by the Consenting Creditors or their respective legal and financial advisors;
(k) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order, (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases;
(l) inform counsel to each of the Consenting Stakeholders Creditors as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company PartyParty or its Affiliates; (ivii) a breach of this Agreement (including a breach by any Company Party); and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(jm) upon the reasonable request of the Required Consenting Noteholders or the Required Consenting Bank Lenders, inform Akin Gump, White & Case, and PJT Partners or Xxxxx Day and Ducera, as applicable, as to: (i) consult the material business and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding financial performance of the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s Parties and Term Loan/PGN Group Representatives’ involvement each of their direct and participation in such activities)indirect subsidiaries; (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect Restructuring Transactions, including progress in relation to negotiations of the development Definitive Documentation and the status of any Alternative Restructuring Proposalsnegotiations with other stakeholders; and (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any stakeholder or joint venture partner, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory or self-regulatory) body or any stock exchange;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(mn) use commercially reasonable efforts to maintain their the good standing of all Company Parties and any joint ventures or other entity in which any Company Party has an equity interest in under the Laws of the state or other jurisdiction in which they are incorporated or organized, provided, however, that the Company Parties’ obligations pursuant to this Section 6.01(n) shall only apply if, and to the extent, a Company Party has authority to maintain such status per the terms of the joint venture or entity agreement;
(no) timely pay all fees and expenses as set forth in Section 13.23 of this Agreement; provided that the Company Parties shall not be responsible for any fees incurred after the termination of this Agreement as to all Parties (other than with respect to fees and expenses incurred after the termination of this Agreement due to the consummation of the Amended Plan on the Effective Date);
(p) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable; and
(q) use commercially reasonable efforts to operate their business in obtain signature pages to this Agreement, a Joinder or a Transfer Agreement such that the ordinary course, taking into account aggregate outstanding principal amount of Notes held by Consenting Noteholders shall exceed 66 2/3% of the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), aggregate outstanding principal amount of all Notes and to timely update the Consenting Creditors with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingefforts.
Appears in 1 contract
Samples: Restructuring Support Agreement (CBL & Associates Limited Partnership)
Affirmative Commitments. Except as set forth in this Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support (i) use commercially reasonable efforts to support, act in good faith, and take all steps reasonable actions necessary, or reasonably necessary and desirable requested by the applicable Required Consenting Stakeholders, to confirm the Plan implement and consummate the Restructuring Transactions in accordance with through the Out-of-Court Restructuring within the Out-of-Court Restructuring Period as contemplated by this Agreement, Agreement and the Out-of-Court Term Sheet (including by complying with Section 4 and Section 5 using commercially reasonable efforts to satisfy the conditions to the Out-of-Court Restructuring); (ii) to the extent they hold the Consent Threshold has not been obtained by the Out-of-Court Toggle Date, or otherwise control any the other conditions of the Out-of-Court Restructuring have not been satisfied so as to permit consummation of the Out-of-Court Restructuring prior to the Out-of-Court Restructuring Outside Date (as determined in good faith by the Company Claims/Interests and the Required Consenting Stakeholders), timely take all reasonable actions necessary to support, implement and consummate the Restructuring Transactions through the In-Court Restructuring, including promptly commencing solicitation on the Plan pursuant to the Disclosure Statement and related Solicitation Materials and thereafter commencing Chapter 11 Cases in order to implement the Plan; and (iii) in the event the Chapter 11 Cases are commenced, obtaining the Bankruptcy Court’s approval of the Definitive Documents (as applicable), the solicitation on the Plan by electing to seek means of the Disclosure Statement and prosecute related Solicitation Materials, confirmation of the Plan over any non-accepting classPlan, and the consummation of the Restructuring Transactions pursuant to the Plan;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable or requested by the Required Consenting Lenders to address any such impediment, including, if the Restructuring Transactions are implemented through the In-Court Restructuring: (i) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, (D) approving an Alternative Restructuring, or (E) for relief that (x) is inconsistent with this Agreement in any material respect, or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions; (ii) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order modifying or terminating any Debtor’s exclusive right to file and/or solicit acceptances of a plan of reorganization; (iii) timely filing a formal objection to any motion, application or proceeding challenging (A) the amount, validity, allowance, character, enforceability, or priority of any Company Claims/Interests of any of the Consenting Lenders, or (B) the validity, enforceability or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Lenders; (iv) timely filing a formal objection to any motion, application, or proceeding filed with the Bankruptcy Court seeking standing to pursue claims or causes of action of the Debtors against any Consenting Stakeholder or any director, manager, officer or employee of, or lender to, or any consultant or advisor that is retained or engaged by, any of the Consenting Stakeholders; and (v) timely filing a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the DIP Facility (or motion filed by such Person that seeks to interfere with the DIP Facility) or any proposed adequate protection to the Consenting Lenders pursuant to the Interim DIP Order, the Final DIP Order, or otherwise;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or Permits, Consents, and third-party approvals that are necessary and/or advisable for the implementation or consummation of any part of the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute execute, deliver, perform their obligations under, and deliver consummate the transactions contemplated by this Agreement; the Definitive Documents Documents, and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreementeffectuate;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders stakeholders;
(f) (i) complete the preparation, (A) as soon as practicable after the Agreement Effective Date, of each of the Definitive Documents necessary to implement the Out-of-Court Restructuring under Section 3.01(a) and (B) as soon as practicable after the Out-of-Court Toggle Date, of each of the Definitive Documents necessary to implement the Chapter 11 Cases under Section 3.01(b) (including all motions, applications, orders, agreements, and other documents, each of which, for the avoidance of doubt, shall contain terms and conditions consistent in all material respects with this Agreement and shall otherwise be in form and substance reasonably acceptable to the Required Consenting Lenders and, solely to the extent reasonably prudentof the Consenting Shareholders’ In-Court Consent Right, the Consenting Shareholders), (ii) provide each of the Definitive Documents to, and afford reasonable opportunity for comment and review of each of the Definitive Documents by, counsel to the applicable Consenting Stakeholders no less than three (3) Business Days in advance of any filing, execution, distribution, or use (as applicable) thereof, and (iii) consult in good faith with the Consenting Lenders’ Advisors and, solely to the extent applicable in connection with the Consenting Shareholders’ In-Court Consent Right, the Consenting Shareholders’ Advisors regarding the form and substance of the applicable Definitive Documents in advance of the filing, execution, distribution or use (as applicable) thereof; provided, however, that the obligations under this Section 8.01(f) shall in no way alter or diminish any right expressly provided to any applicable Consenting Stakeholder under this Agreement to review, comment on, and/or consent to the form and/or substance of any document or agreement;
(g) consult with the advisors promptly notify counsel to the Consenting Stakeholders regarding Lenders and the implementation Consenting Shareholders in writing (and in any event within one (1) Business Day after obtaining knowledge thereof) of (i) the initiation, institution, or commencement of any proceeding by a Governmental Entity or other Person (or communications indicating that the same may be contemplated or threatened) (A) involving any of the Company Parties (including any assets, Permits, businesses, operations, or activities of any of the Company Parties) or any of their respective current or former officers, employees, managers, directors, members, or equity holders (in their capacities as such), or (B) challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain, or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (ii) any breach by any of the Company Parties in any respect of any of its obligations, representations, warranties, or covenants set forth in this Agreement, (iii) any Material Adverse Effect, (iv) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or to be set forth in) any of the Definitive Documents incapable of being satisfied prior to the applicable Milestones set forth herein, (v) the occurrence of a Termination Event, and/or (vi) the receipt of notice from any Governmental Entity or other Person alleging that the consent of such Person is or may be required under any Organizational Document, contract, Permit, Law or otherwise in connection with the consummation of any part of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) upon reasonable request of maintain the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing and legal existence of each Company Party under the Laws of the state or other jurisdiction in which they it is incorporated, organized or formed, except to the extent the Restructuring Transactions are incorporated or organizedto be implemented through the In-Court Restructuring and any failure to maintain such Company Party’s good standing arises solely as a result of the filing of the Chapter 11 Cases;
(ni) use commercially reasonable efforts notify counsel to operate the Consenting Lenders and the Consenting Shareholders of the receipt of any Alternative Restructuring Proposal by any Company Party, within one (1) Business Day after such receipt, with such notice to include the material terms of such Alternative Restructuring Proposal (including the identity of the Person(s) involved);
(j) provide the Consenting Lenders’ Advisors such information as reasonably necessary to evaluate each of the Debtors’ executory contracts and unexpired leases, and all ongoing discussions and negotiations related thereto, and assume or reject each executory contract (including any employment agreement or employee benefit plan) and unexpired lease in consultation with the Required Consenting Lenders;
(i) conduct their business businesses and operations only in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth course in this Section 6.01(o), a manner that is consistent with respect to the Texas Litigation during the Agreement Effective Periodpast practices and in compliance with Law; provided, however, that to if any Company Party reasonably determines in good faith that the extent any deadline, order, or proceeding requires any party to take any action operation of its business in the Texas Litigation during ordinary course is not advisable due to possible health and safety concerns related to COVID-19, such determination and any actions taken or not taken as a result of such determination that are outside the ordinary course of its business and inconsistent with its past practices shall not be a breach of this Section 8.01(k) (but such Company Party shall promptly inform the Consenting Lender Advisors of any such determination), (ii) maintain their physical assets, equipment, properties and facilities in their condition and repair as of the Agreement Effective PeriodDate, ordinary wear and tear excepted, (xiii) the Company Parties maintain their respective books and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadlinerecords on a basis consistent with prior practice, order(iv) maintain all insurance policies, or proceedingsuitable replacements therefor, in full force and effect, (v) maintain all of their respective Permits in full force and effect (including by filing all reports, notifications and filings with, and paying all fees to, the applicable Governmental Entities necessary to maintain all such Permits in full force and effect) and take all action to avoid or eliminate any event, circumstance, event, or occurrence that results, or would reasonably be expected to result, in the lapse, expiration, termination, revocation, suspension or modification of any such Permits or the imposition of any fine, penalty, or other sanctions in connection therewith, (vi) comply with, perform all of their respective material obligations under, and maintain in full force and effect, each Material Contract [*****] (and taking into account the impact of the COVID-19 pandemic), and (vii) use reasonable best efforts to preserve intact their business organizations and relationships with third parties (including creditors, lessors, licensors, physicians, suppliers, distributors and customers) and employees (and taking into account the impact of the COVID-19 pandemic);
(l) no later than two (2) Business Days following the Out-of-Court Toggle Date, provided that the necessary consents for the Out-of-Court Restructuring have not been obtained or have been waived, the board of directors of Holdings shall form a restructuring committee with the exclusive responsibility to, among other things, review, evaluate and implement the strategic alternatives, including the Restructuring Transactions. The restructuring committee shall consist of three (3) Independent Directors (defined below) who shall be appointed to the Restructuring Committee by the board of directors, and reasonably acceptable to the Required Consenting Lenders. “Independent Director” shall be defined as a natural person who is a member of the board of directors and, for the five-year period prior to his or her appointment as Independent Director has not been, and during the continuation of his or her service as Independent Director is not (i) an employee, director, stockholder, partner, officer attorney or counsel of TowerBrook or any of its Affiliates (other than his or her service as an independent member of a board or other similar capacity); (yii) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigationa customer, which motions shall not be opposed by the Consenting Senior Creditorssupplier or other Person who derives any of its purchases or revenues from its activities with Towerbrook or any of its Affiliates; and (ziii) solely to the extent a Person controlling or under common control with any other such deadline, orderPerson described above, or proceeding has not been extended (iv) any member of the immediate family of a Person described in subclauses (i), (ii) or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.(iii); and
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; [(iii) include the Term Loan/PGN Group Representatives in all substantive in-person discussions, negotiations and meetings, and scheduled telephone conferences, to the extent reasonable advance notice is available, among Company Party professionals and third parties regarding Alternative Restructuring Proposals, unless the Company Parties determine in good faith otherwise;]2 and (iiiiv) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, Group and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and or desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) support and take all steps reasonably necessary and desirable to obtain entry of the Cash Collateral Order, the DIP Financing Order, the Disclosure Statement Order, and the Confirmation Order;
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinTransactions, support and take all steps reasonably necessary and or desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gi) consult to the extent reasonably practicable, provide counsel to the Consenting Stakeholders draft copies of (x) all First Day Pleadings three (3) Business Days in advance of the Petition Date and (y) any other motions, documents and other pleadings materially affecting any Consenting Stakeholders that the Company Parties intend to file with the advisors Bankruptcy Court, as applicable, three (3) Business Days in advance of the filing thereof and, (ii) without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposalsany comments to draft copies provided pursuant to sub-clause (i);
(h) upon reasonable request pay in full and in cash all of the Consenting Stakeholdersaccrued reasonable and documented fees, inform costs, and expenses of the professionals and other advisors to retained by the Consenting Stakeholders as to: Lender Group, including such fees, costs, and expenses of (i) the status and progress of the Restructuring TransactionsGxxxxxxxx, including progress in relation to the negotiations of the Definitive Documents; and (ii) Milbank, (iii) Wxxxxxxxx Xxxxxx, and (iv) Loyens, and continue to pay such amounts as they come due and seek to pay such ongoing fees, costs, and expenses in connection with the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCash Collateral Order, any competent judicial body, governmental authority, banking, taxation, supervisoryDIP Financing Order, or regulatory body or any stock exchangeother such appropriate order;
(i) inform counsel timely file a formal objection to any motion filed with the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: Bankruptcy Court by a third party seeking the entry of an order (i) any event directing the appointment of a trustee or circumstance that has occurred, or that is reasonably likely to occur examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and if it did so occur(4) of the Bankruptcy Code), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, converting the Chapter 11 Cases to be a material impediment to the implementation or consummation cases under chapter 7 of the Restructuring Transactions; Bankruptcy Code, (iii) any notice of any commencement of any material involuntary insolvency proceedingsdismissing the Chapter 11 Cases, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of this Agreement (including a breach by the Term Loan Claims, or asserting any Company Party); and (v) any representation other cause of action against and/or with respect or statement made relating to such Term Loan Claims or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madethe prepetition liens securing such Term Loan Claims;
(j) (i) consult and coordinate in good faith timely file a formal objection to any motion filed with the Term Loan/PGN Group and Bankruptcy Court by a third party seeking the Term Loan/PGN Group Representatives regarding entry of an order modifying or terminating the Company Parties’ process exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(k) (i) solicit, initiateconsider, encouragerespond to, induce, negotiate, facilitate, continue, develop, or respond to any and facilitate Alternative Restructuring Proposals (including in consultation with respect to the Term Loan/PGN Group’s Required Consenting Stakeholders and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any pursue a Alternative Restructuring Proposal if (A) the Required Consenting Stakeholders determine that such Alternative Restructuring Proposal is a higher or better transaction than the Restructuring Transactions and (B) the Alternative Restructuring Proposal is implemented under, or without modification to the Company Parties’ and the Required Consenting Stakeholders’ obligations under this Agreement to pursue and implement, a Plan as modified to implement or allow for such Alternative Restructuring Proposal; provided that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent structure of such Alternative Restructuring Proposal requires that will not preclude any Initial Consenting Stakeholder from participating in such Alternative Restructuring Proposal not be shared on a pro rata basis on substantially the same terms as any other Initial Consenting Stakeholder; and
(l) reasonably consult with the Term Loan/PGN Group and/or Required Consenting Stakeholders regarding (i) the Term Loan/PGN Group Representatives; assumption or rejection of any executory contracts or unexpired leases, (ii) entry into any agreement, settlement, or other arrangement with any of the landlords under the Debtors’ unexpired leases waiving, deferring, or modifying the rent payments or rent structure under such leases, and (iii) participate in no less than weekly any payments of prepetition Claims (including Claims pursuant to section 503(b)(9) of the Bankruptcy Code and more frequently if the Term Loan/PGN Group Representatives determine it is appropriatelien Claims) calls of or agreements with the Term Loan/PGN Group Representatives Company Parties’ vendors and provide notice and reasonably acceptable reporting to Milbank and Gxxxxxxxx regarding any of the foregoing actions, which consultation and reporting shall include weekly calls regarding the status of the actions described in this Section 6.01(l) among the relevant employees, advisors and progress consultants of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives , Milbank, Gxxxxxxxx and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and one or more Initial Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingStakeholders.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Affirmative Commitments. Except as set forth in Section 79, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with the Milestones set forth in Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classhereof;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable or requested by the Required Consenting RBL Lenders or the Required Consenting Term Lenders to address any such impediment, including (1) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, (D) approving an Alternative Restructuring, or (E) for relief that (x) is inconsistent with this Agreement in any material respect, or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions; (2) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order modifying or terminating any Company Party’s exclusive right to file and/or solicit acceptances of a plan of reorganization; (3) timely filing a formal objection to any motion, application or proceeding challenging (A) the amount, validity, allowance, character, enforceability or priority of any Company Claims/Interests of any of the Consenting Creditor Parties, or (B) the validity, enforceability or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Creditor Parties; (4) timely filing a formal objection to any motion, application or proceeding filed with the Bankruptcy Court seeking standing to pursue claims or causes of action of the Company Parties against any Consenting Creditor Party or any director, manager, officer or employee of, or lender to, or any consultant or advisor that is retained or engaged by, any of the Consenting Creditor Parties; and (5) timely filing a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the DIP Facility (or motion filed by such Person that seeks to interfere with the DIP Facility) or any adequate protection granted to the Consenting Creditor Parties pursuant to the Interim DIP Order, the Final DIP Order or otherwise;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals Permits and Consents that are necessary or advisable for the implementation or consummation of any part of the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate execute, deliver, perform its obligations under, and consummate the Restructuring Transactions as transactions contemplated by this Agreementthe Definitive Documents;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g1) consult complete the preparation, as soon as practicable after the Agreement Effective Date, of each of the Definitive Documents (including all motions, applications, orders, agreements and other documents, each of which, for the avoidance of doubt, shall contain terms and conditions consistent in all material respects with this Agreement and shall otherwise be in form and substance reasonably acceptable to the advisors Required Parties), (2) provide each of the Definitive Documents to, and afford reasonable opportunity for comment and review of each of the Definitive Documents by, counsel to the Consenting Stakeholders Lenders no less than three (3) Business Days in advance of any filing, execution, distribution or use (as applicable) thereof (to the extent reasonably practicable), and (3) consult in good faith with counsel to the Consenting Lenders regarding the implementation form and substance of the applicable Definitive Documents in advance of the filing, execution, distribution or use (as applicable) thereof; provided that the obligations under this Section 8.01(f) shall in no way alter or diminish any right expressly provided to any applicable Consenting Creditor Party under this Agreement to review, comment on, and/or consent to the form and/or substance of any document or agreement; provided, further that the Company Parties shall not be required to perform their obligations under clauses (2) and (3) above with respect to counsel to the RBL Agent for any Definitive Documents that are not required to be in form and substance acceptable to the Consenting RBL Lenders pursuant to this Agreement;
(g) promptly notify counsel to the Consenting Creditor Parties in writing (and in any event within one (1) Business Day after obtaining knowledge thereof) of (1) the initiation, institution or commencement of any proceeding by a Governmental Entity or other Person (or communications indicating that the same may be contemplated or threatened) (x) involving any of the Company Parties (including any assets, Permits, businesses, operations or activities of any of the Company Parties) or any of their respective current or former officers, employees, managers, directors, members or equity holders (in their capacities as such), or (y) challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (2) any breach by any of the Company Parties in any respect of any of its obligations, representations, warranties or covenants set forth in this Agreement, (3) any Material Adverse Effect, (4) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or to be set forth in) any of the Definitive Documents incapable of being satisfied prior to the Outside Date, (5) the occurrence of a Termination Event and/or (6) the receipt of notice from any Governmental Entity or other Person alleging that the consent of such Person is or may be required under any Organizational Document, contract, Permit, Law or otherwise in connection with the consummation of any part of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors provide counsel to the Consenting Stakeholders as to: (i) the status Term Lenders and progress of the Restructuring Transactions, including progress in relation counsel to the RBL Agent information as reasonably requested by counsel to the Consenting Term Lenders to evaluate the Company Parties’ Material Contracts and any other executory contract or unexpired lease specifically and reasonably requested by counsel to the Consenting Term Lenders, and all ongoing discussions and negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangerelated thereto;
(i) inform counsel maintain the good standing and legal existence of each Company Party under the Laws of the state in which it is incorporated, organized or formed, except to the Consenting Stakeholders extent that any failure to maintain such Company Party’s good standing arises solely as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would a result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice filing of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madethe Chapter 11 Cases;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the if any Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Party receives an Alternative Restructuring Proposals Proposal, such Company Party shall (1) within two (2) Business Days after the receipt of such Alternative Restructuring Proposal, notify counsel to the Consenting Lenders of the receipt thereof, with such notice to include the material terms thereof (including with respect the identity of the Person(s) involved), and thereafter promptly provide counsel to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in Consenting Lenders with any amendments, supplements or modifications to such activities); (ii) promptly share any Alternative Restructuring Proposal that are received by any Company Party, and (2) consult with counsel to the Company Parties receive Consenting Lenders with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of respect to such Alternative Restructuring Proposal requires that (or any amendments, supplements or modifications thereto) upon the reasonable request of such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate counsel, in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect each case subject to the development of any Alternative Restructuring Proposalsapplicable confidentiality agreements;
(k) promptly respond to commercially reasonable diligence requests requested by the Consenting Creditor Parties’ Advisors to the Consenting Term Lenders and the Consenting RBL Lenders;
(l) maintain all existing compensation and benefit plans and other employee arrangements in the ordinary course of business unless otherwise required by Law or the terms of the benefit plans or arrangements;
(m) except (1) with the consent of the Required Consenting Term Lenders and the Required Consenting RBL Lenders or (2) as required by Law, (u) use commercially reasonable efforts to provide conduct their businesses and operations only in the Term Loan/PGN Group Representatives ordinary course in a manner that is consistent with past practices and Term Lender Group Representatives in compliance with regular access Law, except for any failure to information regarding operate their businesses and operations in the operations ordinary course in a manner that is consistent with past practice as a result of CCOH;
the preparation and implementation of the Restructuring Transactions consistent with the terms of this Agreement, (l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(mv) use commercially reasonable efforts to maintain their good standing under the Laws physical assets, equipment, properties and facilities in their condition and repair as of the state Agreement Effective Date, ordinary wear and tear excepted, (w) maintain their respective books and records on a basis consistent with prior practice, (x) maintain all material insurance policies, or suitable replacements therefor, in full force and effect, (y) use commercially reasonable efforts to maintain all of their respective material Permits in full force and effect (including by filing all reports, notifications and filings with, and paying all fees to, the applicable Governmental Entities necessary to maintain all such Permits in full force and effect) and (z) comply in all material respects with, perform all of their respective obligations under, and maintain in full force and effect, each Material Contract (other jurisdiction than any Material Contract that has expired after the Agreement Effective Date in which they are incorporated or organized;accordance with its terms); and
(n) use commercially reasonable efforts to operate their business in replace the ordinary course, taking into account letter of credit issued under the Restructuring Transactions; and
RBL Credit Agreement to American Contractors Indemnity Company and/or U.S. Specialty Insurance Company (o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(othe “ACIC Letter of Credit”), with respect cash collateralize the ACIC Letter of Credit or cause the ACIC Letter of Credit not to the Texas Litigation be drawn during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingChapter 11 Cases.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ultra Petroleum Corp)
Affirmative Commitments. Except as set forth Subject in all cases to Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and support, facilitate, implement, consummate or otherwise give effect to the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable desirable, or reasonably requested by the Creditors’ Committee or the Ad Hoc Group, to address any such impediment;
(c) use commercially consider in good faith all reasonable efforts actions necessary or reasonably requested by the Consenting Stakeholders or the Other Consenting Stakeholders to obtain any facilitate the solicitation, confirmation (if applicable), and all required regulatory and/or third-party approvals for consummation of the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person Person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (Transactions, including, if applicablebut not limited to, the timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person or Entity seeking the entry of objections an order (i) directing the appointment of a trustee or written responses examiner (with expanded powers beyond those set forth in a sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting any of the Chapter 11 CaseCases to cases under chapter 7 of the Bankruptcy Code; (iii) seeking relief from the automatic stay with respect to any material asset or assets of the extent such opposition Debtors; (iv) dismissing any of the Chapter 11 Cases; (v) providing for the Bankruptcy Court to abstain from hearing any of the Chapter 11 Cases; (vi) modifying or objection terminating any Debtor’s exclusive right to file and solicit acceptances of a plan of reorganization; or (vii) for relief that (A) is materially inconsistent with this Agreement in any respect or (B) would, or would reasonably necessary or desirable to facilitate implementation be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions;
(e) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party challenging the validity, enforceability, perfection, or priority of, or seeking avoidance, disallowance or subordination of, any portion of the Foris Prepetition Claims, or the liens securing such Claims (as applicable);
(f) use commercially reasonable efforts, and provide such assistance as may be reasonably required by the Consenting Stakeholders or the Other Consenting Stakeholders, to obtain any and all third party approvals (including, if necessary, all Regulatory Approvals) for the Restructuring Transactions;
(g) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fh) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gi) consult provide counsel to Consenting Parties with Definitive Documents that the Debtors intend to file with the advisors to the Consenting Stakeholders regarding the implementation Bankruptcy Court in a timely manner but in no event less than (3) Business Days in advance of the Restructuring Transactions and the development filing thereof, or if not reasonably practicable, as soon as reasonably practicable but in any event no less than twenty-four (24) hours in advance of Alternative Restructuring Proposalsfiling thereof;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(ij) inform counsel to the Consenting Stakeholders Parties as soon as reasonably practicable and in any event within two (2) Business Days after becoming aware of: the applicable Company Party (i) becomes aware of receipt of any event notice or circumstance that has occurred, or that other correspondence from a third party asserting its consent is reasonably likely required to occur (implement the Restructuring Transactions and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) makes any matter or circumstance which they knowdefinitive determination (by the applicable Company Party or, as applicable, its board of directors, board of managers, or suspect is likelysimilar governing body), to be a material impediment to the implementation or consummation of the Restructuring Transactions; after consulting with counsel, (iiia) that taking any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, developaction, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain refraining from taking any action whatsoever, except as set forth in this Section 6.01(o)action, with respect to the Texas Litigation during Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law or, (b) in the Agreement Effective Periodexercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal, in accordance with Section 8; providedand
(k) if any Company Party receives an Alternative Restructuring Proposal, however(i) within two (2) Business Days after the receipt of such Alternative Restructuring Proposal, that notify counsel to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties Consenting Stakeholders and the Other Consenting Senior Creditors each hereby agree Stakeholders of the receipt thereof, with such notice to immediately seek an extension include the material terms thereof (including the identity of the Person(s) involved), and thereafter promptly provide counsel to the Consenting Stakeholders and the Other Consenting Stakeholders with any amendments, supplements or modifications to such Alternative Restructuring Proposal that are received by any Company Party, and (ii) consult with counsel to the Consenting Stakeholders and the Other Consenting Stakeholders with respect to such Alternative Restructuring Proposal (or any amendments, supplements or modifications thereto) upon the reasonable request of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingcounsel.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and or desirable to confirm the Plan and consummate the Restructuring Transactions (to the extent set forth in the Plan) and the Sale Transaction in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) support and take all steps reasonably necessary and desirable to obtain entry of the Cash Collateral Order, the DIP Financing Order, the Disclosure Statement Order, the Sale Order and the Confirmation Order;
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinor the Sale Transaction, support and take all steps reasonably necessary and or desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose Transactions and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsSale Transaction;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions and the Sale Transaction as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions and the Sale Transaction from their other material stakeholders to the extent reasonably prudent;
(gi) consult to the extent reasonably practicable, provide counsel to the Consenting Stakeholders draft copies of (x) all First Day Pleadings three (3) Business Days in advance of the Petition Date and (y) any other motions, documents and other pleadings materially affecting any Consenting Stakeholders that the Company Parties intend to file with the advisors Bankruptcy Court, as applicable, three (3) Business Days in advance of the filing thereof and, (ii) without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposalsany comments to draft copies provided pursuant to sub-clause (i);
(h) upon reasonable request pay in full and in cash all of the accrued reasonable and documented fees, costs, and expenses of (A) the professionals and other advisors retained by the Lender Group, including such fees, costs, and expenses of (i) Xxxxxxxxx, (ii) Milbank, (iii) Xxxxxxxxx Xxxxxx, and (iv) Loyens, and continue to pay such amounts as they come due and (B) King & Spalding LLP and McGuireWoods LLP, as counsel to the Ad Hoc Group, solely for the period through and including the closing date of the DIP Term Agreement, and in each case seek to pay such fees, costs, and expenses in connection with the Cash Collateral Order, DIP Financing Order, or other such appropriate order;
(i) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or (iv) challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the Term Loan Claims, or asserting any other cause of action against and/or with respect or relating to such Term Loan Claims or the prepetition liens securing such Term Loan Claims;
(j) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a chapter 11 plan, as applicable;
(k) (i) solicit, consider, respond to, and facilitate Alternative Restructuring Proposals in consultation with the Required Consenting Stakeholders and (ii) pursue an Alternative Restructuring Proposal if (A) the Required Consenting Stakeholders determine that such Alternative Restructuring Proposal is a higher or better transaction than the Restructuring Transactions and (B) the Alternative Restructuring Proposal is implemented under, or without modification to the Company Parties’ and the Required Consenting Stakeholders’ obligations under this Agreement to pursue and implement, inform a Plan as modified to implement or allow for such Alternative Restructuring Proposal; provided that the advisors to structure of such Alternative Restructuring Proposal will not preclude any Initial Consenting Stakeholder from participating in such Alternative Restructuring Proposal on a pro rata basis on substantially the same terms as any other Initial Consenting Stakeholder;
(l) reasonably consult with the Required Consenting Stakeholders as to: regarding (i) the status and progress assumption or rejection of any executory contracts or unexpired leases, (ii) entry into any agreement, settlement, or other arrangement with any of the Restructuring Transactionslandlords under the Debtors’ unexpired leases waiving, deferring, or modifying the rent payments or rent structure under such leases, and (iii) any payments of prepetition Claims (including Claims pursuant to section 503(b)(9) of the Bankruptcy Code and lien Claims) of or agreements with the Company Parties’ vendors and provide notice and reasonably acceptable reporting to Milbank and Xxxxxxxxx regarding any of the foregoing actions, which consultation and reporting shall include weekly calls regarding the status of the actions described in this Section 6.01(l) among the relevant employees, advisors and consultants of the Company Parties, Milbank, Xxxxxxxxx and one or more Initial Consenting Stakeholders;
(m) as soon as is reasonably practicable after the Closing Date and the Claims Management Consultant has been selected by the Required Consenting Stakeholders, enter into an agreement to engage the Claims Management Consultant as a consultant, on terms and conditions acceptable to the Company Parties and in consultation with the Required Consenting Stakeholders, to consult with the Company Parties regarding (i) the reconciliation of unpaid administrative expense and priority Claims and (ii) distributions, in accordance with this Agreement and the Sale Order, of (x) Reserves, if any, and (y) cash of the estate, including progress in relation to cash released from the negotiations Reserves, and interface with the Initial Consenting Stakeholders on the status of the Definitive Documentsforegoing;
(n) following the engagement of the Claims Management Consultant in accordance with Section 6.01(m), consult in good faith with the Claims Management Consultant regarding the (i) filing, withdrawal, or litigation of any objections to administrative expense or priority Claims, (ii) settlement or compromise of any disputed administrative expense or priority Claim, (iii) establishment or maintenance of any Reserves other than the Reserves agreed between the Company Parties and the Required Consenting Stakeholders as of the date hereof, or (iv) making of any distribution from any Reserve;
(o) (i) file with the Bankruptcy Court motions to (x) establish January 19, 2021 as the bar date for administrative expense Claims accrued as of November 30, 2020, (y) objections to duplicate and amended filed administrative expense and priority Claims that may be included in an omnibus objection under Bankruptcy Rule 3007(d), and (z) a motion for approval of claims objections procedures, including, among other provisions, a 21-day notice period for omnibus claims objections, in each case by no later than November 26, 2020; and (ii) object to filed administrative and priority Claims or Claims otherwise required to be satisfied in full by the status Company Parties or the Buyer as soon as is reasonably practicable; and
(p) in accordance with the terms of obtaining any necessary or desirable authorizations (including any consents) the Sale Order, distribute cash from each the Reserves, as determined by the Company Parties in good faith consultation with the Claims Management Consultant and certain Initial Consenting StakeholderStakeholders, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
pro rata to holders of Term Loan Claims (i) inform counsel on January 15, 2021, (ii) on January 31, 2021, (iii) on and after the Plan Effective Date, in accordance with the Plan, and (iv) on any other date as determined by the Company Parties in good faith consultation with the Claims Management Consultant and certain Initial Consenting Stakeholders; provided that upon the release to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: Company Parties of (i) any event cash collateralizing letters of credit issued under the ABL Credit Agreement or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business cash held in the ordinary course, taking into account Escrow Account (as defined in the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(oAsset Purchase Agreement), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action such released cash shall be considered in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree following distribution of cash to immediately seek an extension holders of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingTerm Loan Claims.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) pursue the Restructuring Transactions on the terms set forth in this Agreement, including all exhibits attached hereto and not sign any agreement to pursue any auction, sale process or other restructuring transaction of any of the Company Parties or any of its Affiliates.
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(de) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of implement the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in such a Chapter 11 Case) manner that is tax-efficient and reasonably acceptable to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsConsenting Creditors;
(ef) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) complete the Restructuring Transactions in a timely and expeditious manner, and as otherwise required by this Agreement, including compliance with each Milestones contained herein;
(A) operate the business of each of the Company Parties (and their Affiliates) in the ordinary course and materially consistent with past practice and in a manner that is materially consistent with this Agreement and the business plan of the Company Parties and their Affiliates and confer with the Consenting Creditors and their respective representatives, as reasonably requested, on operational matters and the general status of ongoing operations, and (B) provide the Consenting Creditors with any information reasonably requested regarding the Company Parties (and their Affiliates) and reasonable access to management and advisors of the Company Parties (and their Affiliates) for the purposes of evaluating the Company Parties’ (and their Affiliates) assets, liabilities, operations, businesses, finances, strategies, prospects and affairs. Notwithstanding the generality of the foregoing, the Company Parties (and their Affiliates, if applicable) shall, except as expressly contemplated by this Agreement or with the prior written consent of the Required Consenting Creditors, not to be unreasonably withheld or delayed, and, subject to applicable bankruptcy law, use commercially reasonable efforts consistent with the Restructuring Transactions to (1) maintain their physical assets, properties and facilities in their current working order, condition and repair as of the date hereof, ordinary wear and tear excepted, (2) perform all obligations required to be performed by the Company Parties under any executory contracts or unexpired leases that have not been rejected by order of the Bankruptcy Court, (3) maintain their books and records on a basis consistent with prior practice, (4) bill for products sold or services rendered and pay accounts payable in a manner generally consistent with past practice, but taking into account the Restructuring Transactions, (5) maintain all insurance policies, or suitable replacements therefor, in full force and effect through the close of business on the Plan Effective Date, and (6) neither encumber nor enter into any material new leases, licenses or other use or occupancy agreements for real property or any part thereof;
(i) provide prompt written notice to the Consenting Creditors between the date hereof and the Plan Effective Date of (A) the occurrence, or failure to occur, of any event of which the Company Parties (or their Affiliates) have actual knowledge and which such occurrence or failure would likely cause (1) any representation of the Company Parties contained in this Agreement to be untrue or inaccurate in any material respect, (2) any covenant of the Company Parties contained in this Agreement not to be satisfied in any material respect or (3) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy, (B) receipt of any written notice from any third party alleging that the consent of such party is or may be required in connection with the Restructuring Transactions, (C) receipt of any written notice from any governmental body that threatens to impede, frustrate, or delay in a material respect the implementation of the Restructuring Transactions, (D) receipt of any written notice of any proceeding commenced, or, to the actual knowledge of the Company Parties, threatened against the Company Parties (or their Affiliates), to impede, frustrate, or delay in a material respect the implementation of the Restructuring Transactions, and (E) any failure of the Company Parties to comply with or satisfy in a material respect any covenant, condition, or agreement to be complied with or satisfied hereunder;
(j) promptly notify the Consenting Creditors in writing of any governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) against the Company Parties;
(k) comply in all material respects with the terms and conditions of the DIP Term Sheet, the DIP Credit Agreement and the DIP Orders and any amendments related thereto;
(l) pay in full all fees, costs, and expenses (i) in cash in accordance with Section 14.01 of this Agreement, and (ii) in cash or in kind, as applicable, in accordance with the DIP Orders;
(m) cause the Confirmation Order to become effective and enforceable immediately upon its entry and to have the period in which an appeal thereto must be filed commence immediately upon its entry;
(n) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(go) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform provide counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: Creditors with at least three (i3) any event calendar days (or circumstance that has occurredsuch shorter review period if necessary in light of exigent circumstances) with draft copies of all material motions, proposed orders, or amended versions thereof that is reasonably likely the Company Parties intend to occur file with the Bankruptcy Court and, at least five (and 5) calendar days (or such shorter review period if it did so occur), that would permit any Party to terminate, or would result necessary in the termination of, this Agreement; (iilight of exigent circumstances) any matter or circumstance which they know, or suspect is likely, to be a material impediment prior to the implementation or consummation of date when the Restructuring Transactions; (iii) any notice applicable Company Party intends to file, provide draft copies of any commencement of Definitive Documents and related motions, the Confirmation Order, and any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any supplements to the Plan. The Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) Parties shall consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect counsel to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities)Consenting Creditors regarding all material proposed filings with the Bankruptcy Court; (ii) promptly share any Alternative Restructuring Proposal provided that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as consent requirements set forth in this Section 6.01(o), 7.01(o) shall apply with respect to any motions, declarations, proposed orders or other filings with the Texas Litigation during Bankruptcy Court; and
(p) promptly notify the Consenting Creditors in writing if the ABL Forbearance Agreement Effective Period; providedor the Term Lender Group Forbearance Agreement are terminated for any reason, howeveror are adversely modified, that amended, or waived without the prior written consent of the Required Consenting Creditors, at any time prior to the extent any deadline, order, or proceeding requires any party to take any action in commencement of the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingChapter 11 Cases.
Appears in 1 contract
Samples: Restructuring Support Agreement (Venator Materials PLC)
Affirmative Commitments. Except as set forth in Section 77 of this Agreement, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 the applicable milestones set forth on Schedule 1 to this Agreement (collectively, the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class“PSA Milestones”);
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory governmental, regulatory, environmental, and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and to the extent the Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders of such Joinders and Transfer Agreements;
(f) to the extent reasonably practicable, provide counsel to any Consenting Stakeholders (each in their capacity as such) materially affected by such filing draft copies of documents that the Company Parties intend to file with Bankruptcy Court at least two (2) Business Days prior to the filing of such documents, as applicable;
(g) consult take commercially reasonable efforts to complete the preparation of and negotiate in good faith regarding, as soon as reasonably practicable after the date hereof (and in any case, in compliance with the advisors applicable PSA Milestones) and other Definitive Documents that are necessary to the Consenting Stakeholders regarding the implementation of consummate the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) timely file a formal objection to any motion filed with the Bankruptcy Court by any party seeking (i) the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting the Chapter 11 Cases to case under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, or (D) directing the appointment of an equity committee, whether pursuant to section 1102(a)(2) of the Bankruptcy Code or otherwise, in the Chapter 11 Cases (subject to Sections 7.01 and 7.02 of this Agreement); or (ii) the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization.
(i) provide to the Consenting Agent Advisors, subject to the confidentiality restrictions set forth in the DIP Credit Agreement, reasonable information with respect to all Material Executory Contracts or Unexpired Leases of the Company Parties for the purposes of concluding which such Material Executory Contracts or Unexpired Leases the Company Parties intend (with the consent of the Required Consenting Revolving Lenders, the Required Ad Hoc Term Loan Lender Group, and the Required Consenting Term Loan Lenders, not to be unreasonably withheld or delayed) to assume, assume and assign, or reject in the Chapter 11 Cases (to the extent applicable);
(j) subject to any applicable Bankruptcy Court orders regarding the review and payment of fees, pay the Consenting Stakeholder Fees and Expenses in accordance with Section 13.20 of this Agreement;
(k) support the mutual release and exculpation provisions to be provided in the Plan;
(l) take commercially reasonable efforts to negotiate and enter into any amendments or modifications of any Material Agreement or Material Executory Contract or Unexpired Lease upon the written direction of the Required Consenting Revolving Lenders, in a manner that is reasonably satisfactory to the Required Consenting Revolving Lenders as soon as reasonably practicable after receipt of such direction;
(m) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(in) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: :
(i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (iiA) any matter or circumstance which that they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiB) any occurrence, or failure to occur, of any event that would be likely to cause (1) any representation or warranty of the Company Parties contained in this Agreement, the Plan, the DIP Facility, or the Plan Documents being untrue or inaccurate in any material respect, (2) any covenant of any of the Company Parties contained in this Agreement, the Plan, the DIP Facility, or the Plan Documents not to be satisfied in any material respect, or (3) any condition precedent contained in this Agreement, the Plan, the DIP Facility, or the Plan Documents not occurring or becoming impossible to satisfy; (C) any notice of any commencement of any material involuntary insolvency proceedingsInsolvency Proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (ivD) a breach of this Agreement (including a breach by any Company Party); and (vE) any representation or statement made or deemed to be made by them under this Agreement which that is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;; and
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the receipt by the Company Parties receive of any written notice (1) from any third party alleging that the consent of such party is or may be required in connection with the Term Loan/PGN Group and/or transactions contemplated by the Term Loan/PGN Group Representatives unless Restructuring Transactions; (B) from any governmental body in connection with this Agreement, the proponent Plan, the DIP Facility, or the Plan Documents or the transactions contemplated by the Restructuring Transactions; (C) of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with any proceeding commenced, or, to the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress knowledge of the Company Parties’ efforts with , threatened against the Company Parties, relating to or involving or otherwise affecting in any material respect to the development transactions contemplated by the Restructuring Transactions; or (D) of any Alternative Restructuring Proposals;alleged default, breach, waiver, or termination of this Agreement, the Plan, the DIP Facility, or the Plan Documents.
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(mo) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(np) use commercially reasonable efforts to not (i) operate their business in outside the ordinary course, taking into account the Restructuring Transactions; and
, without the consent of the Required Consenting Revolving Lenders or (oii) refrain from taking Transfer any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, asset or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) right of the Company Parties and or any asset or right used in the Consenting Senior Creditors each hereby agree to immediately seek an extension business of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay any person or Entity outside the Texas Litigation, which motions shall not be opposed by ordinary course of business without the Consenting Senior Creditors; and (z) solely to consent of the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayedRequired Ad Hoc Term Loan Lender Group, the Company Parties may take Required Consenting Revolving Lenders and Required Consenting Term Loan Lenders;
(q) on or after the date hereof, not engage in any action necessary to preserve and protect their rights in such proceedingmaterial merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside of the ordinary course of business other than the Restructuring Transactions.
Appears in 1 contract
Samples: Plan Support Agreement (Vanguard Natural Resources, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) support and seek approval of the Releases;
(d) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals for the Restructuring Transactions;
(de) use commercially reasonable efforts to actively oppose and object promptly pay all Restructuring Expenses of the Ad Hoc Term Lender Group, in each case for which an invoice has been received by the Company Parties;
(f) inform counsel to the efforts Consenting Stakeholders as soon as reasonably practicable (i) the occurrence, or failure to occur, of any person seeking event of which any Company Party has actual knowledge which occurrence or failure would be likely to object to, delay, impedecause or likely to result in, or take has caused or resulted in (A) any other action representation or warranty of the Company Parties contained in this Agreement to interfere be false in any material respect, (B) any covenant of any Company Party contained in this Agreement not to be satisfied in any material respect, or (C) any applicable condition precedent contained in the Plan or this Agreement, not to occur or become impossible to satisfy, (ii) receipt of any written notice from any third party alleging that the consent of such party is or may be required in connection with the acceptancetransactions contemplated by the Restructuring Transactions, implementation(iii) receipt of any written notice from any governmental or regulatory body in connection with this Agreement or the Restructuring Transactions, (iv) receipt of any written notice of any proceeding (including any insolvency proceeding) commenced, or, to the actual knowledge of the Company Parties, threatened against the Company, relating to or involving or otherwise affecting in any material respect the Restructuring Transactions, and (v) any matter or circumstance which is likely to be a material impediment to the implementation or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(g) provide to the Consenting Stakeholders, the Ad Hoc Term Lender Group, Xxxx, Xxxxx and Centerview: (i) reasonable access during normal business hours to the books, records, and facilities of the Company Parties, (ii) reasonable access to the management of and advisors to the Company Parties for the purpose of evaluating the Company Parties’ finances and operations and participating in the planning process with respect to the Restructuring Transactions, (iii) timely updates regarding the Restructuring Transactions, including any material developments or any material conversations with parties in interest, (iv) status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body, and (v) any other reasonable information related to the Restructuring Transactions reasonably requested by the Consenting Stakeholders in writing (e-mail shall suffice);
(h) to the extent applicable, object to any motion filed with the Bankruptcy Court by any person (i) seeking the entry of an order terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization or (ii) seeking the entry of an order terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any material asset that, to the extent such relief was granted, would have an adverse effect on the consummation of the Restructuring Transactions;
(i) use its commercially reasonable efforts to (i) operate the business of the Company Parties in the ordinary course and in a manner consistent with past practices and this Agreement and (ii) preserve its material relationships with customers, suppliers, licensors, licensees, distributors, and others having material business dealings with the Company Parties, in each case, taking into account the effect of filing for chapter 11 and the Company Parties’ status as debtors-in-possession;
(j) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fk) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;; and
(gl) consult to the extent practicable, provide to Xxxx, Xxxxx draft copies of all Definitive Documents and any other documents that the Company Parties intend to file with the advisors to Bankruptcy Court that may affect the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
at least two (h2) upon reasonable request of the Consenting Stakeholders, inform the advisors Business Days prior to the Consenting Stakeholders as to: (i) the status date when such Company Party intends to file or execute such document and progress of the Restructuring Transactionsshall, including progress without limiting any approval rights set forth in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives Xxxx, Xxxxx regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s form and Term Loan/PGN Group Representatives’ involvement and participation in substance of such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive proposed filing with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingBankruptcy Court.
Appears in 1 contract
Samples: Restructuring Support Agreement (Covia Holdings Corp)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 the applicable milestones set forth in the Restructuring Term Sheet (the “Milestones”), provided that, notwithstanding anything to the extent they hold or otherwise control any contrary in this Agreement, nothing herein shall be deemed an approval by the Company Claims/Interests and by electing to seek and prosecute confirmation of commence the Plan over any non-accepting classChapter 11 Cases, for which separate board approval shall be required;
(b) support and take all steps reasonably necessary and desirable to facilitate solicitation of the Plan in accordance with this Agreement and the Milestones;
(c) use commercially reasonable efforts to obtain entry of the Confirmation Order and to cause the Confirmation Order to become a Final Order;
(d) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Plan or the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable use commercially reasonable efforts to negotiate in good faith with the Required Consenting Noteholders in an effort to agree to appropriate additional or alternative provisions or alternative implementation mechanics to address any such impediment;
(ce) use commercially reasonable efforts to obtain any and all required regulatory (including self-regulatory) and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(ef) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents Documentation and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders regarding the implementation Noteholders of the Restructuring Transactions such Joinders and the development of Alternative Restructuring ProposalsTransfer Agreements as soon as practicable after receiving such Joinders or Transfer Agreements;
(h) upon reasonable request provide draft copies of all substantive motions, documents, and other pleadings to be filed in the Chapter 11 Cases to counsel to the Consenting Noteholders if reasonably practicable at least two (2) Business Days prior to the date when the Company Parties intend to file such documents, and, without limiting any approval rights set forth in this Agreement, consult in good faith with counsel to the Consenting Noteholders regarding the form and substance of any such proposed filing; notwithstanding the foregoing, in the event that not less than two (2) Business Days’ notice is not reasonably practicable under the circumstances, the Company Parties shall provide draft copies of any such motions, documents, or other pleadings to counsel to the applicable Consenting Noteholders as soon as otherwise reasonably practicable before the date when the Company intends to file any such motion, documents, or other pleading;
(i) subject to any confidentiality agreements between the Company and the Consenting Noteholders and their advisors, provide, and direct their employees, officers, advisors, and other representatives to provide, to each of the Consenting StakeholdersNoteholders, inform the advisors to the Consenting Stakeholders as to: and each of their respective legal and financial advisors, (i) reasonable access to the status management and progress advisors of the Restructuring Transactions, including progress in relation Company Parties on reasonable advance notice to such persons and without disruption to the negotiations operation of the Definitive Documents; Company Parties’ business, and (ii) such other information as reasonably requested by the status of obtaining any necessary Consenting Noteholders or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangetheir respective legal and financial advisors;
(j) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order, (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases;
(k) inform counsel to the Consenting Stakeholders Noteholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (ivii) a breach of this Agreement (including a breach by any Company Party); and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(jl) upon request of the Required Consenting Noteholders, inform Akin Gump and PJT Partners as to: (i) consult the material business and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding financial performance of the Company Parties’ process to solicitParties and each of its and their direct and indirect subsidiaries, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect Restructuring Transactions, including progress in relation to negotiations of the development Definitive Documents and the status of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives negotiations with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Groupother stakeholders, and Consenting Sponsors informed (iii) the status of obtaining any discussions regarding the development of necessary or desirable authorizations (including any Alternative Restructuring Proposalconsents) from any stakeholder or joint venture partner, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory or self-regulatory) body or any stock exchange;
(m) use commercially reasonable efforts to maintain their the good standing of all Company Parties and any joint ventures or other entity in which any Company Party has an equity interest in under the Laws of the state or other jurisdiction in which they are incorporated or organized, provided, however, that the Company Parties’ obligations pursuant to this section 6.01(l) shall only apply if, and to the extent, a Company Party has authority to maintain such status per the terms of the joint venture or entity agreement;
(n) use commercially reasonable efforts timely pay all fees and expenses as set forth in Section 13.23 of this Agreement; provided that the Company Parties shall not be responsible for any fees incurred after the termination of this Agreement (other than with respect to operate their business in fees and expenses incurred after the ordinary course, taking into account termination of this Agreement due to the Restructuring Transactionsconsummation of the Plan on the Plan Effective Date); and
(o) refrain from taking timely file a formal objection to any action whatsoever, except as set forth in this Section 6.01(o), motion filed with respect to the Texas Litigation during Bankruptcy Court by a third party seeking the Agreement Effective Period; provided, however, that to the extent any deadline, order, entry of an order modifying or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) terminating the Company Parties and the Consenting Senior Creditors each hereby agree Parties’ exclusive right to immediately seek an extension file and/or solicit acceptances of such deadlinea plan of reorganization, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingas applicable.
Appears in 1 contract
Samples: Restructuring Support Agreement (CBL & Associates Limited Partnership)
Affirmative Commitments. Except as set forth in Section 79, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable (including in any board, or creditors’, or shareholders’ meeting (including any Special Meeting), including by proxy vote or otherwise, or in any other process requiring voting or approval to confirm the Plan and which they are legally entitled to participate) to (i) consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 (ii) obtain entry of the Disclosure Statement Order and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing Confirmation Order, (iii) elect to seek and prosecute confirmation of the Plan (and the Non-TopCo Plan, as applicable) over any non-accepting class, (iv) prosecute and defend any appeals relating to the Confirmation Order, and (v) comply with each Milestone set forth in this Agreement;
(b) support the Secured Creditor Settlement, including (i) file the Secured Creditor Settlement Motion within fourteen (14) days of the Agreement Effective Date (which Secured Creditor Settlement Motion shall be in form and substance reasonably acceptable to the Required Consenting First Lien Noteholders), seek approval of the Secured Creditor Settlement Motion at the Confirmation Hearing, object to any request not to have the Secured Creditor Settlement Motion approved at the Confirmation Hearing, object to or defend against any Secured Creditor Claims Litigation, defend any approval by the Bankruptcy Court of the Secured Creditor Settlement in the event of any appeal from such approval, appeal and support the reversal on appeal of any order denying approval of the Secured Creditor Settlement, and (ii) seek approval of the Term Loan Facility Claims Settlement in connection with Confirmation of the Plan;
(c) support and take all steps reasonably necessary and desirable to obtain entry of the Guarantee Litigation Scheduling Order; provided that nothing in Section 8 shall prevent any Company Parties from complying with the terms of the Initial Guarantee Litigation Scheduling Stipulated Order pending entry of the Guarantee Litigation Scheduling Order;
(d) to the extent any legal legal, tax, or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable desirable, and consistent with the Definitive Documents, to address any such impediment;
(ce) use commercially reasonable efforts to obtain any and all required regulatory or advisable governmental, regulatory, and/or third-party approvals for the Restructuring TransactionsTransactions (including, as applicable, Bankruptcy Court approvals);
(df) use commercially reasonable efforts negotiate in good faith and, where applicable, execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(g) actively oppose and object to the efforts of any person or Entity seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions or the Secured Creditor Settlement (including, if applicable, the timely filing of timely objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactionsresponses);
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fh) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and to the extent the Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Creditors of such Joinders and Transfer Agreements; but in any event, without making any changes to the Plan (or the Non-TopCo Plan, as applicable) that are not approved in accordance with this Agreement;
(gi) operate their business in the ordinary course, taking into account the Restructuring Transactions and the Chapter 11 Cases, including continuing to perform their obligations under the DIP Order;
(j) timely file a formal objection, after consultation in good faith with counsel to the Consenting Creditors, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable, (ii) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (iii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iv) dismissing any of the Chapter 11 Cases;
(k) promptly pay any and all Restructuring Expenses, in each case for which an invoice has been received by the Company Parties; provided that this obligation shall not alter the allocation of Restructuring Expenses and Professional Fee Claims set forth in the Plan (and the Non-TopCo Plan, as applicable) and shall not be construed to permit or require any Debtor to advance funds to or for the benefit of any other Debtor that is unable to promptly repay the payor Debtor; provided, further, that any Restructuring Expenses of the Required Consenting First Lien Noteholders that are incurred, invoiced, and unpaid on the date the Confirmation Order is entered shall be satisfied in accordance with this Agreement substantially contemporaneously with the entry of the Confirmation Order; provided, further, that the Company Parties agree that the applicable Company Parties’ obligations under the Xxxxxxxx Engagement Letter are administrative expenses of the Company Parties;
(l) provide the HoldCo Creditor Ad Hoc Group and Xxxxxxx Crossover Ad Hoc Group access to all reporting (including, without limitation, reporting related to financial performance and progress related to C-Band clearing) provided to any other creditors, including, without limitation, the DIP Lenders, in the Chapter 11 Cases;
(m) consult with the Consenting Creditors (including using commercially reasonable efforts to provide advance drafts of material documents) with respect to the regulatory approvals required or advisable to consummate the Restructuring Transactions, and keep the Consenting Creditors reasonably updated of the status of the regulatory approval process;
(n) notify the advisors to the Consenting Creditors of any material governmental or third-party complaints, litigations, inquiries, orders to show cause, cease and desist orders, notices of violation, notice of apparent inability, orders of forfeiture, investigations, or hearings (or communications indicating that any of the foregoing is contemplated or threatened) that are reasonably likely to impede the consummation of the Restructuring Transactions;
(o) consult with the advisors to the Consenting Stakeholders Creditors regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(hp) if this Agreement is validly terminated by either the Xxxxxxx Crossover Ad Hoc Group or the HoldCo Creditor Ad Hoc Group in accordance with Section 13.01, to (i) not object to any effort by the Xxxxxxx Crossover Ad Hoc Group or the HoldCo Creditor Ad Hoc Group to withdraw its votes for the Plan, (ii) adjourn the Confirmation Hearing for no less than 14 days following such valid termination, and (iii) comply with the provisions set forth in Section 7.05(h);
(q) upon reasonable request of the a Consenting StakeholdersCreditor, inform the advisors to the such Consenting Stakeholders Creditors as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangebody;
(ir) inform counsel to the Consenting Stakeholders Creditors as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), occurred that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, proceedings of the Company Parties or their Affiliates; (iv) any notice of any legal suit for payment of debt or securement of security from or by any person in respect of any Company Party, in each case, which they know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ivv) a material breach of this Agreement (including a breach by any Company Party); and (vvi) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (iis) promptly share upon receipt, but in all events, no later than 24 hours after such receipt, provide a copy of any Alternative Restructuring Proposal that received by any Company Party to counsel to the Company Parties receive with Consenting Creditors;
(t) keep the Term Loan/PGN advisors to the Xxxxxxx Crossover Ad Hoc Group and/or the Term Loan/PGN and Xxxxxxx Ad Hoc Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives reasonably informed regarding the status of the litigation, and progress any settlement negotiations, concerning the claims and causes of action asserted by SES Americom, Inc. in connection with the Chapter 11 Cases (including promptly informing the advisors to the Xxxxxxx Crossover Ad Hoc Group and Xxxxxxx Ad Hoc Group of any settlement received, or proposed to be made, by the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals);
(ku) use commercially reasonable efforts to provide (i) ensure that the Debtors receive the maximum amount of Accelerated Relocation Payments made available through the C-Band Order; and (ii) obtain Further Acceleration Payments; provided that nothing in this covenant shall alter the requirement that no Further Acceleration Payments shall exist until the Applicable Intelsat Recipients receive the Minimum Payment (as defined in the CVR Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOHSheet);
(lv) take all actions necessary or desirable to ensure that the Reorganized Debtors (i) shall emerge from the Chapter 11 Cases as a private company on the Effective Date and the New Common Stock shall not be listed on a public stock exchange, (ii) shall not be voluntarily subjected to any reporting requirements promulgated by the SEC, and (iii) shall not be required to list the New Common Stock on a recognized U.S. stock exchange, except, in each case, as otherwise may be required pursuant to the New Corporate Governance Documents;
(w) use best efforts to take all actions necessary or desirable to ensure that the Company Parties qualify at all times, for the benefits of the U.S.-Luxembourg Tax Treaty, including any actions necessary or desirable to ensure that the Company Parties qualify for benefits under Art. 24(3) of the U.S.-Luxembourg Tax Treaty; provided that, for the avoidance of doubt, the Company Parties shall emerge as private companies on the Effective Date and shall not, except as required pursuant to the New Corporate Governance Documents, be required to list equity on any public stock exchange or otherwise qualify as publicly traded pursuant to Art. 24(2)(d) of the U.S.-Luxembourg Tax Treaty;
(x) use commercially reasonable efforts to keep obtain Bankruptcy Court approval of the 2021 Noteholder GroupReplacement/Incremental DIP Facility on substantially the same terms as the Replacement/Incremental DIP Facility Term Sheet and the existing DIP Credit Agreement and DIP Order, and entry of the Replacement/Incremental DIP Facility Order; provided, however¸ that for the avoidance of doubt, the Term Lender GroupCompany Parties shall retain the right to pursue, consider, evaluate, and Consenting Sponsors informed prosecute any higher or otherwise better alternative debtor-in-possession financing proposals in an exercise of any discussions regarding their business judgment. The Company Parties and the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws members of the state or other jurisdiction Xxxxxxx Ad Hoc Group and Xxxxxxx Crossover Ad Hoc Group shall cooperate and in which they are incorporated or organized;
(n) use commercially reasonable efforts good faith negotiate final documentation for the Replacement/Incremental DIP Facility contemplated by the Replacement/Incremental DIP Facility Term Sheet and to operate their business seek Bankruptcy Court approval of such Replacement/Incremental DIP Facility. Additionally, the Company Parties, the Xxxxxxx Ad Hoc Group and the Xxxxxxx Crossover Ad Hoc Group shall cooperate in good faith to amend the ordinary course, taking into account Plan as may be necessary to incorporate the Restructuring TransactionsReplacement/Incremental DIP Facility; and
(oy) refrain from taking ensure that any action whatsoeverdebtor-in-possession financing facility that is authorized by the Bankruptcy Court reflects the highest or otherwise best terms available under the circumstances in an exercise of the applicable Company Parties’ reasonable business judgment and as required by section 364(d) of the Bankruptcy Code and is not otherwise materially inconsistent with the Restructuring Transactions, except as set forth in contemplated by this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective PeriodAgreement; provided, however, that for the avoidance of doubt, nothing in this Agreement shall in any way limit the rights of any Consenting Creditor to object to any debtor-in-possession financing proposed by the extent Debtors (other than the Replacement/Incremental DIP Facility) or in any deadlineway limit the ability of any Party, orderincluding the Xxxxxxx Ad Hoc Group and the Xxxxxxx Crossover Ad Hoc Group, or proceeding requires to propose any party to take any action alternative debtor-in-possession financing in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) event that the Company Parties may file motions to xxxxx and/or stay the Texas LitigationReplacement/Incremental DIP Facility is not consummated, which motions shall not be even if such alternative financing is opposed by the Consenting Senior Creditors; and (z) solely another Party to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingthis Agreement.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) provided, further, that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the Company Parties Filing Entities agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and timely consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use make commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use make commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 CaseBrazilian RJ Proceeding or any Ancillary Proceeding) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Restructuring Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement, including the structuring and creation of intermediary holding companies in connection with the collateral and guarantee arrangements as described in the RJ Plan Term Sheet;
(f) pay and reimburse the Consenting Stakeholders’ and Existing 2024 Notes indenture trustee’s advisors in accordance with the terms set forth in the RJ Plan Term Sheet;
(g) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders not already party hereto to the extent reasonably prudent, and to the extent the Company Parties receive any Joinders, notify the other Parties hereto of such Xxxxxxxx;
(gh) pursue and take all steps reasonably necessary to (A) as soon as reasonably practicable, obtain orders of the Brazilian RJ Court in respect of the Restructuring Transactions, including obtaining entry of the RJ Confirmation Order (including, if necessary, pursuant to Article 58 of the Brazilian Bankruptcy Law (an “Article 58 Approval”)) and obtain the Recognition Orders in the Ancillary Proceedings, (B) prosecute and defend any appeals related to the order accepting the RJ filing, RJ Confirmation Order, or any Recognition Orders, (C) support and consummate the Restructuring Transactions in accordance with this Agreement, including the good-faith negotiation, preparation and filing of the Restructuring Documents; (D) execute and deliver any other required agreements to effectuate and consummate the Restructuring Transactions; and (E) complete the Restructuring Transactions;
(i) consult with the advisors to the Consenting Stakeholders and Shareholders regarding the implementation of the Restructuring Transactions Transactions, including to timely file the RJ Plan, and any amendments thereto, with the development of Alternative Restructuring ProposalsBrazilian RJ Court;
(hj) upon reasonable request subject to any applicable confidentiality agreements, provide to counsel for the Consenting Stakeholders and Shareholders draft copies of all documents any Filing Entities intend to file with the Brazilian RJ Court, or any court pursuant to any Ancillary Proceedings, at least five (5) Business Days (or, if such period is not practicably possible given unforeseen developments in the Brazilian XX Xxxxxxxxxx, or any other Restructuring Proceedings, as early as practically possible) prior to making such filing, and to consult in good faith with such counsel regarding the form and substance of any such proposed filing;
(A) timely file a formal appeal to any decision issued by the Brazilian RJ Court (and/or a formal objection to any motion filed with the Brazilian RJ Court by a third party seeking such a decision) (1) directing the appointment of any person with expanded powers to operate the Filing Entities’ businesses or a trustee, (2) converting the Brazilian RJ Proceeding to a falência proceeding or (3) dismissing the Brazilian RJ Proceeding, and (B) vigorously prosecute such appeals and/or objections (including taking action to timely lift any stay motions), including in courts of appeal as may be needed;
(l) subject to any applicable confidentiality agreements, participate in weekly (or as may otherwise be agreed to between the Filing Entities and counsel to the Consenting Stakeholders, inform ) calls with the advisors to the Consenting Stakeholders and Shareholders regarding the status and progress of the implementation of the Restructuring Transactions, including the Brazilian XX Xxxxxxxxxx, any Ancillary Proceedings and the Filing Entities’ efforts with respect to confirmation of either of the RJ Plan and the Olinda Restructuring (if any), and upon request of the Consenting Stakeholders and Shareholders, provide detailed information to the advisors to the Consenting Stakeholders and Shareholders as to: (i) the material business and financial (including liquidity) performance of the Filing Entities, (ii) the status of the Company’s participation in tenders with Petróleo Brasileiro S.A. — Petrobras (“Petrobras”), including, on an advisors-eyes- only basis if necessary under any applicable confidentiality agreement, regular updates on all communications with Petrobras regarding the terms and conditions of any proposed bids; (iii) the status of the Company’s efforts to sell the assets of Arazi S.à x.x.; (iv) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Restructuring Documents; and (iiv) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholderany stakeholders, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange. The Filing Entities and their respective advisors shall notify counsel to the Consenting Stakeholders in advance which, if any, information and/or materials to be received in connection with such calls is being provided on an advisors-eyes-only, confidential, public or other basis;
(m) make commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions;
(n) without limitation of any other obligations hereunder, (i) cause the General Security Agreements and the Subordination and Assignment Agreements (as defined in each of the Credit Agreements) and any other applicable Financing Documents (as defined in the Credit Agreements), to be amended (and take all other actions reasonably required) to ensure that the security and other rights that the Lenders have as of the date hereof in respect of the Charter Agreements and the Bareboat Charter Agreements (as defined in each of the Credit Agreements) with Petrobras, also apply to any new charter agreement to which the Borrower is or becomes party (each, an “ALB Charter Agreement”) as of commencement of the effective period under any such new ALB Charter Agreement and in any event, no later than the RJ Plan Submission Date, in accordance with applicable law;
(o) maintain in effect (unless otherwise agreed in writing by each party thereto) and comply with the terms and conditions of the Corporate Governance Agreement; provided that, without limitation of the foregoing, the Filing Entities shall deliver to the Consenting Stakeholders written notice of the occurrence of any breach, or any event that could reasonably be expected to result in a breach, under the Corporate Governance Agreement;4
(p) comply with the terms and conditions of the ancillary proceedings support letter, dated as of November 29, 2018, by and among the Company Parties and the Consenting Lenders, which shall at all times remain in full force and effect in accordance with its terms;
(q) subject to any applicable confidentiality agreements, inform counsel to the Consenting Stakeholders and Shareholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would could reasonably be expected to result in the termination of, this Agreement; (ii) any matter or circumstance which they know, that constitutes or suspect is likely, could reasonably be excepted to be constitute a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedingsproceedings of any Filing Entity or any of their Affiliates, or legal suit for payment of debt or securement of security from or by any person in respect of any Filing Entity or any Company Party; (iv) delivery of any notice of termination, suspension or delays in commencement of any of the Filing Entities’ charter agreements by a counterparty; (v) any breach of this Agreement (including a breach by any Company Party); Filing Entity) and (v) any representation or statement 4 The conditions set forth in the Corporate Governance Agreement have been satisfied. made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(jr) cause (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect Deed of Quiet Enjoyment relating to the Term Loan/PGN Group’s Brava Star rig (the “Shell Deed of Quiet Enjoyment”) and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development extent a deed of any Alternative Restructuring Proposals;quiet enjoyment is required pursuant to the QGEP charter agreement, the Deed of Quiet Enjoyment relating to the Laguna Star rig (the “QGEP Deed of Quiet Enjoyment”) to be signed and duly effective on terms satisfactory to the applicable lenders under the Brava Credit Agreement and the A&L Credit Agreement, respectively, by not later than February 25, 2019;
(ks) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use make commercially reasonable efforts to maintain their good standing under the Laws laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(ot) refrain from taking provide the Consenting 2024 Noteholders with prior written notice of any action whatsoever2024 Notes Charter Agreement, except as set forth in this Section 6.01(o), together with respect to company representations and a certificate of a duly authorized officer of the Texas Litigation during the Agreement Effective Period; provided, however, Company that to the extent any deadline, order, or proceeding requires any party to take any action such transaction was negotiated on an arm’s-length basis and is in the Texas Litigation during best interests of each entity owning the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.2024 Collateral Rigs.
Appears in 1 contract
Samples: Plan Support and Lock Up Agreement
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, Agreement (including by complying with Section 4 the Restructuring Term Sheet and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classMilestones);
(b) support and take all steps reasonably necessary and desirable to obtain entry of the Interim DIP Order, the Final DIP Order, the Disclosure Statement Order and the Confirmation Order;
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals (including, as applicable, Bankruptcy Court approvals and approvals of the FCC and, as applicable, PUCs) for the Restructuring Transactions;
, including (di) use commercially reasonable efforts to actively oppose promptly commence any required regulatory approval processes, including (x) cooperate in the preparation and object to the efforts prosecution of any person seeking to object to, delay, impede, or take any other action to interfere required notices and applications with the acceptanceFCC and PUCs and (y) oppose any petitions to deny or other pleadings or objections filed with respect to such notices and applications, implementation, or consummation of (ii) evaluate in cooperation and coordination with the Restructuring Transactions (including, if applicableConsenting Noteholders’ advisors, the timely filing of objections or written responses in a Chapter 11 Casepath to approval by jurisdiction, (iii) seek any required approvals from the FCC, public utilities commissions, and other applicable regulatory bodies with respect to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions, and, where prior approval is not required, provide any required notifications to the FCC, public utilities commissions, and other applicable regulatory bodies with respect to the Restructuring Transactions, and (iv) provide regular progress reports with respect to regulatory approval processes; provided, that any agreements with or commitments to the FCC or any PUCs, including any decision to accept and/or not to oppose any proposed material conditions or limitations on any such required approvals, shall require the prior approval of the Required Consenting Noteholders, not to be unreasonably withheld;
(e) confer and consult with the Required Consenting Noteholders with regard to material decisions in respect of negotiations with the IRS, the PBGC, or any labor union;
(f) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gi) provide the Noteholder Groups Counsels draft copies of (x) all First Day Pleadings three (3) days in advance of the Petition Date and (y) any other motions, documents and other pleadings materially affecting any Consenting Noteholder that the Company Parties intend to file with the Bankruptcy Court, as applicable, three (3) days in advance of the filing thereof to the extent reasonably practicable and, if not reasonably practicable, as soon as reasonably practicable but in any event in advance of filing thereof, and (ii) without limiting any approval rights set forth in this Agreement, consult in good faith with the Noteholder Groups Counsels, as applicable, regarding any comments to draft copies provided pursuant to sub-clause (i);
(i) pay in full and in cash all of the accrued reasonable and documented fees, costs, and expenses of the professionals and other advisors retained by the Noteholder Groups, including such fees, costs, and expenses of (i) Akin, (ii) Xxxxxx, (iii) Ducera, (iv) Xxxxxxxx, (v) Milbank, (vi) October Three and (vii) the Compensation Consultant, and continue to pay such amounts as they come due and seek to pay such ongoing fees, costs, and expenses in connection with the Final DIP Order or other such appropriate order;
(i) operate the business of the Company Parties in the ordinary course of business in a manner that is consistent with this Agreement and past practices, and use commercially reasonable efforts to preserve intact the Company Parties’ business organization and relationships with third parties (including lessors, licensors, content providers, suppliers, distributors, customers and governmental and regulatory authorities (including the FCC and PUCs) and employees, (ii) keep the Consenting Noteholders and the Noteholder Representatives reasonably informed about the operations of the Company Parties, (iii) provide the Consenting Noteholders and the Noteholder Representatives any information reasonably requested regarding the Company Parties and provide, and direct the Company Parties’ employees, officers, advisors and other representatives to provide, to the Noteholder Representatives (A) reasonable access during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business, (B) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business for the purposes of evaluating the Company Parties’ assets, liabilities, operations, businesses, finances, strategies, prospects and affairs and (C) such other information as reasonably requested by the Consenting Noteholders or the Noteholder Representatives, (iv) promptly notify the Consenting Noteholders of any material governmental or third party complaints, litigations, inquires, orders to show cause, cease and desist orders, notices of violation, notice of apparent liability, orders of forfeiture, investigations, or hearings (or communications indicating that any of the foregoing is contemplated or threatened) (the parties acknowledge and agree that any written filings by, before, or with the FCC or any PUC in which the Company Parties are seeking regulatory approval to emerge from bankruptcy is deemed material for purposes of this Section 7.01(j)(iv)), and (v) cooperate in good faith to structure the Restructuring Transactions in a tax efficient manner, including as a “Bruno’s transaction” in accordance with Restructuring Term Sheet, and use commercially reasonable efforts to analyze additional asset-level information, and, as appropriate, evaluate potential alternative value-maximizing structures, including REIT structures; provided, that, notwithstanding the foregoing, the Company shall not be required to (1) permit any inspection, or to disclose any information, that in the reasonable judgment of the Company, would cause the Company to violate its respective obligations with respect to confidentiality to a third party if the Company used its commercially reasonable efforts to obtain, but failed to obtain, the consent of such third party to such inspection or disclosure, (2) to disclose any legally privileged information of the Company, or (3) to violate applicable Law;
(k) cooperate and consult with the advisors Consenting Noteholders with respect to the development and adoption of the Company Parties’ RDOF bidding framework and strategy (including the terms of and submission of any RDOF bid);
(l) cooperate and consult with the Consenting Stakeholders Noteholders with respect to the development and adoption of the Company Parties’ business plan, including any business plans contemplated by the Restructuring Term Sheet and with respect to the Virtual Separation; provided, that (x) the Company Parties’ business plan shall be acceptable to the Company Parties and reasonably acceptable to the Required Consenting Noteholders, (y) the allocations of state operations with respect to the Virtual Separation shall be reasonably acceptable to the Required Consenting Noteholders and (z) the contents of the Disclosure Statement regarding the implementation preparatory work for each business plan and scenario shall be reasonably acceptable to the Required Consenting Noteholders; provided, further, that the Debtors shall bear no obligation to attest to the Debtors’ management team’s view of reasonableness for either sensitivity case if sufficient preparatory work has not been conducted as of the date on which the Disclosure Statement is filed;
(m) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases;
(n) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(o) provide responsive information to, and confer with, the Consenting Noteholders regarding potential cost savings and concessions with respect to the Company Parties’ pension/OPEB plans on the terms and subject to the conditions set forth in the Restructuring Term Sheet; and
(p) the Board shall not alter or amend its prior determination that the Restructuring Transactions, the entry into this Agreement, the approval of the Plan, the entry into the Definitive Documents, and the consummation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of other transactions contemplated by the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status Plan and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders Documents are “Exempt Transactions” as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result defined in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingNOL Rights Plan.
Appears in 1 contract
Samples: Restructuring Support Agreement (Frontier Communications Corp)
Affirmative Commitments. Except as set forth in Section 77.03, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals for the implementation or consummation for the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions, as contemplated by this Agreement;
(e) provide counsel for the Consenting Creditors and counsel for Ares a reasonable opportunity (which, to the extent reasonably practicable, shall be no less than two (2) Business Days) to review draft copies of all Definitive Documents that the Company Parties intend to file with the Bankruptcy Court;
(f) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eg) negotiate timely file a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (i) directing the appointment of an examiner (with expanded powers beyond those set forth in good faith sections 1106(a)(3) and use commercially reasonable efforts (4) of the Bankruptcy Code) or a trustee, (ii) converting the Chapter 11 Cases to execute cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, (iv) modifying or terminating the Company Parties’ exclusive right to file and deliver solicit acceptances of a plan of reorganization or (v) for relief that (A) is inconsistent with this Agreement in any respect or (B) would, or would reasonably be expected to, frustrate the Definitive Documents and any other required agreements to effectuate and consummate purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions as contemplated by this AgreementTransactions;
(fh) timely file a formal objection to any motion, application, or adversary proceeding challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the claims of the Consenting Creditors;
(i) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentcomply with all Milestones;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(hj) upon reasonable request of the Consenting StakeholdersCreditors and Ares (which, in each case, may be through the Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors), as applicable, use commercially reasonable efforts to inform the advisors to Ad Hoc Group Advisors, the Consenting Stakeholders Crossover Ad Hoc Group Advisors and the Ares Advisors as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(ik) inform counsel to the Consenting Stakeholders Ad Hoc Group Advisors, the Crossover Ad Hoc Group Advisors and the Ares Advisors as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iviii) a breach of this Agreement (including a breach by any Company Party); and (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(nm) use commercially reasonable efforts to operate seek additional support for the Restructuring Transactions from their business other material stakeholders to the extent reasonably prudent and, to the extent the Company Parties receive any Joinders or Transfer Agreements, to notify the Consenting Creditors of such Joinders and Transfer Agreements;
(n) promptly pay the Consenting Parties Fees and Expenses in accordance with this Agreement and the applicable fee letters on a monthly basis and within ten (10) Business Days of receipt of invoices thereof;
(o) not seek application of the equitable doctrine of marshaling, section 506(c) of the Bankruptcy Code or section 552(b) of the Bankruptcy Code with respect to any of the Senior DIP Facility, Junior DIP Facility, 2017 Term Loan adequate protection liens and claims, or the existing 2017 Term Loan Claims without the consent of the Required Consenting Creditors; provided that, solely in the ordinary courseevent that this Agreement has been terminated by (1) Consenting Creditors constituting Required Consenting Creditors, taking into account (2) a Party due to the material breach by Consenting Creditors constituting Required Consenting Creditors or (3) the Company pursuant to Section 12.03(a), (b), (d), (e), (g) or (h) hereof, then in each case the Crossover Ad Hoc Group’s ability to assert (solely to the extent that they are not contractually prohibited from doing so) section 506(c) of the Bankruptcy Code or section 552(b) of the Bankruptcy Code with respect to any of the Senior DIP Facility, Junior DIP Facility, 2017 Term Loan adequate protection liens and claims, or the existing 2017 Term Loan Claims without the consent of the Required Consenting Creditors and the equitable doctrine of “marshaling” or any similar doctrine with respect to any of the DIP Collateral (as defined in the Interim DIP Order) shall be preserved until the Plan Effective Date and the rights of all Parties to oppose such assertions on any grounds are hereby expressly preserved;
(p) negotiate in good faith upon reasonable request of any other Party any modifications to the Restructuring Transactions that improve the tax efficiency of the Restructuring Transactions or are otherwise necessary to address any legal, financial, or structural impediment that may prevent the consummation of the Restructuring Transactions, in each case to the extent such modifications can be implemented without any adverse effect on such Company Party; and
(oq) refrain from taking provide any action whatsoeverinquiry, except as set forth in this Section 6.01(o)proposal, with respect offer, bid or term sheet that solely seeks to refinance the Second Lien Exit Facility or the Eligible Notes to the Texas Litigation during Ad Hoc Group Advisors, the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties Crossover Ad Hoc Group Advisors and the Consenting Senior Creditors each hereby agree to immediately seek an extension Ares Advisors within two (2) Business Days of receiving such deadlineinquiry, orderproposal, offer, bid or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingterm sheet.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory (including self-regulatory) and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and, to the extent the Company Parties receive any Joinder Agreements or Transfer Agreements, notify counsel to the Ad Hoc Group of such Joinder Agreements and Transfer Agreements;
(i) provide counsel to the Ad Hoc Group a reasonable opportunity to review draft copies of all First Day Pleadings and all application materials to be filed with the Canadian Court and (ii) to the extent reasonably practicable, provide a reasonable opportunity to counsel to the Ad Hoc Group to review draft copies of all other documents that the Company Parties intend to file with the Bankruptcy Court or Canadian Court, as applicable (including all Definitive Documents and any motions, pleadings, declarations, exhibits, and proposed orders related thereto (each of which shall contain terms and conditions consistent with the terms of this Agreement)), and, in each case, consider any such comments in good faith and consistent with their obligations under this Agreement;
(g) consult with the advisors provide prompt written notice to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders other Parties hereto (email being sufficient) as soon as reasonably practicable after becoming aware of: (iand in any event within two (2) Business Days after becoming so aware) of (A) the occurrence of any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result described in the termination of, this AgreementSection 11.01; (iiB) any matter or circumstance which they know, or suspect that is likely, likely to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiC) any notice of any commencement of any material involuntary insolvency proceedingsproceeding or legal suit, legal suit for payment of debt or securement of security enforcement action from or by any person or entity in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party)Debtor or subsidiary thereof, in each case to the extent that it would materially impede or frustrate the Restructuring Transactions; and (vD) any representation written notice, including from any governmental authority, of any material proceeding commenced or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in of any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicitmaterial complaints, initiatelitigations, encourage, induce, negotiate, facilitate, continue, developinvestigations, or respond to any Alternative Restructuring Proposals (including with respect hearings, or, to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress knowledge of the Company Parties’ efforts with respect , threatened in writing against the Company Parties, relating to or involving the development of Company Parties (or any Alternative Restructuring Proposalscommunications regarding the same that may be contemplated or threatened);
(kh) use commercially reasonable efforts to provide (A) operate the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws business of the state or other jurisdiction Company Parties and their direct and indirect subsidiaries in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business all material respects in the ordinary coursecourse in a manner that is consistent with this Agreement, past practices, and in compliance with applicable law, and (B) preserve intact the Company’s business organization and relationships with material third parties (including material lessors, licensors, suppliers, distributors and customers) and employees, in each case of (A) and (B), taking into account the Restructuring TransactionsTransactions and the pendency of the Chapter 11 Cases; and
(oi) refrain from taking any action whatsoever, except maintain good standing (or a normal status or its equivalent) under the laws of the jurisdiction or state in which each Company Party is incorporated or organized (other than as set forth in this Section 6.01(oa result of the Chapter 11 Cases), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (CURO Group Holdings Corp.)
Affirmative Commitments. Except as set forth in Subject to Section 76.03, during the Agreement Effective Period, the Company Parties Parties, jointly and severally, agree to:
(a) support support, act in good faith, and take all steps actions reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with this Agreement, including by complying and the applicable Milestones unless waived or modified in accordance with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classterms hereof;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, negotiate in good faith with the Required Consenting Stakeholders appropriate additional or alternative provisions or alternative implementation mechanics to address any such impediment, and support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals and consents for the consummation and implementation of the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to finalize, execute and implement the Definitive Documents, any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) at least three (3) days prior to the filing (or such shorter period as may be necessary or practicable), provide concurrently to the respective counsels for the Consenting Stakeholders draft copies of all material pleadings, motions, and proposed orders (including without limitation the Plan, the Disclosure Statement, the First Day Pleadings, and all “second day motions and proposed orders); that affect the Consenting Stakeholders;
(f) actively and timely oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eg) consult and negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders and their advisors regarding the implementation of the Restructuring Transactions Transactions, and the development execution of Alternative Restructuring Proposalsthe Definitive Documents to which such Consenting Stakeholder is required to be a party or to which it has a consent right pursuant to Section 3.02;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders in writing (email being sufficient) as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they knowit knows, or suspect is likely, believes to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect the Company or any of its direct or indirect subsidiaries; (iii) any material breach of any Company Party; (iv) a breach of the terms, conditions, representations, warranties or covenants set forth in this Agreement (including a breach by any the Company PartyParties); and or (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that if the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such any bona fide proposal or offer to effect an Alternative Restructuring Proposal requires that Proposal, the Company shall (i) inform counsel to each of the Consenting Stakeholders in writing (email being sufficient) within one (1) Business Day of receiving such Alternative Restructuring Proposal not proposal, with such notice to include the material terms thereof, including the identity of the Person(s) involved, and the action taken or proposed to be shared taken by the Company in response thereto, (ii) provide counsel and advisors to each of the Consenting Stakeholders with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding regular updates as to the status and progress of such Alternative Restructuring Proposal, and (iii) respond promptly to reasonable information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Restructuring Proposal;
(j) from the date hereof until the Plan Effective Date, other than (a) as required by contracts existing on the date hereof or applicable Law, (b) with the consent of the Consenting Senior Secured Noteholders (not to be unreasonably withheld, conditioned, or delayed) and in consultation with the Consenting Convertible Noteholders, or (c) except as expressly contemplated, allowed, or required by the Plan or this Agreement, (i) operate their business in the ordinary course consistent with past practices; (ii) use commercially reasonable efforts (x) to preserve intact the Company Parties’ efforts business organization and relationships with respect third parties and employees, taking into account the Restructuring Transactions; and (y) maintain good standing (or equivalent status under the Laws of its incorporation or organization) under the Laws of the jurisdiction in which the Company Parties are incorporated or organized, taking into account the Restructuring Transactions; (iii) consult in good faith with counsel for the Consenting Stakeholders prior to the development Company Parties’ entry into, termination of, or modification of any Alternative Restructuring Proposalsmaterial operational contracts, leases, or other binding agreements, other than in the ordinary course of business; (iv) refrain from increasing the compensation payable to any “Insiders” (as defined in the Bankruptcy Code) of the Company Parties, except, with advance notice to the Consenting Stakeholders, annual base salary compensation increases and merit-based adjustments in the ordinary course of business and consistent with past practice or as required by the terms of and in accordance with any written employment or engagement agreement currently in effect between the Company Parties and such person; (v) refrain from granting any long term cash incentive awards payable to any “Insiders” (as defined in the Bankruptcy Code) of the Company Parties not existing as of the date of this Agreement or implementing a short term incentive plan for 2025 payable to any “Insiders” (as defined in the Bankruptcy Code) of the Company Parties; and (vi) refrain from entry into any binding transaction involving the direct or indirect sale, purchase, transfer, or other disposition of a material portion of the Company Parties’ assets;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives advisors to the Consenting Stakeholders with (i) reasonable access to, during regular business hours, the non-privileged, non-confidential books, work papers, records and Term Lender Group Representatives materials of any Company Party, (ii) reasonable access to, during regular business hours, the personnel and applicable advisors of any Company Party to discuss the status and progress of the Restructuring Transactions, and (iii) timely responses to all reasonable diligence requests provided by any such advisors; it being understood that the foregoing cannot, and should not be construed to, (A) require the disclosure of any workpapers, materials, reports, statements, or other information intended to be subject to attorney-client or work-product privilege or any other applicable privilege doctrines available under applicable law, or (B) override any existing confidentiality or other applicable obligations owed with regular access respect to any such information. In addition, the Company Parties shall cooperate with reasonable requests from any Consenting Stakeholder for information regarding or documentation relating to compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions and Ex-Im Laws (as such terms are defined in the operations of CCOH;Backstop Commitment Agreement) and the Company Parties’ associated policies and procedures.
(l) use commercially reasonable efforts to keep seek additional support for the 2021 Noteholder Group, Restructuring Transactions from their other material stakeholders to the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;extent reasonably prudent; and
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary courseevent that any information to be provided pursuant to this Agreement contains material non-public information, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect deliver such information to the Texas Litigation during the Agreement Effective Period; providedAd Hoc Group of Convertible Noteholders Advisors or Ad Hoc Group of Senior Secured Noteholders Advisors, howeveras applicable, that on a professional-eyes only basis, instead of delivering such information to the extent any deadlineConsenting Stakeholders, order, or proceeding requires any party unless and until such Consenting Stakeholder has entered into a Confidentiality Agreement in form and substance acceptable to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the such Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingStakeholder.
Appears in 1 contract
Samples: Restructuring Support Agreement (Spirit Airlines, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree agree, on behalf of themselves and their controlled affiliates, to:
(a) support support, act in good faith, and take all steps reasonable actions necessary, or reasonably necessary and desirable requested by the Requisite Consenting Lenders, to confirm the Plan implement and consummate the Restructuring Transactions in accordance with as contemplated by this AgreementAgreement and the Restructuring Term Sheet, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classMilestones;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment, including, timely filing a formal objection to any motion, application, or other proceeding filed with the Bankruptcy Court by any Person seeking the entry of an order (i) directing the appointment of an examiner with expanded powers or a trustee; (ii) converting any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code; (iii) dismissing the Chapter 11 Cases; (iv) approving an Alternative Restructuring Proposal; (v) for relief that (x) is inconsistent with this Agreement in any material respect, or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement in any material respect, including by preventing the consummation of the Restructuring Transactions; (vi) modifying or terminating any Debtor’s exclusive right to file and/or solicit acceptances of a plan of reorganization; or (vii) challenging (x) the amount, validity, allowance, character, enforceability, or priority of any Company Claims/Interests of any of the Consenting Lenders, or (y) the validity, enforceability, or perfection of any lien or other encumbrance securing (or purporting to secure) any Company Claims/Interests of any of the Consenting Lenders;
(c) use commercially reasonable efforts to obtain any and all required regulatory Permits, consents, and/or any other third-party approvals that are necessary or advisable for the implementation or consummation of any part of the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute execute, deliver, perform their obligations under, and deliver consummate the transactions contemplated by, the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gf) consult with the advisors subject to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholdersconsent rights set forth in Section 3.02, inform the advisors to the Consenting Stakeholders as to: (i) complete the status and progress of the Restructuring Transactionspreparation, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) the Execution Date, of the Plan, the Disclosure Statement, and any event or circumstance that has occurredother Solicitation Materials in order to pursue the Restructuring Transactions in accordance with the Milestones, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) provide drafts of the Disclosure Statement, the Plan, any matter or circumstance other Solicitation Materials, and each other Definitive Document to, and afford a reasonable opportunity for comment and review of such documents by, the Ad Hoc Group’s Advisors, which they knowopportunity of comment and review shall be not less than three (3) full business days in advance of any filing, execution, distribution, or suspect use (as applicable) thereof (provided, that if delivery of such document at least three (3) full business days in advance is likelyimpracticable under the circumstances, to such document shall be a material impediment to the implementation or consummation of the Restructuring Transactions; delivered as soon as otherwise practicable), (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group Ad Hoc Group’s Advisors regarding the form and substance of the Term Loan/PGN Group Representatives regarding Disclosure Statement and other Solicitation Materials, the Plan, and each other Definitive Document, sufficiently in advance of the filing, execution, distribution, or use (as applicable) thereof and not file, execute, distribute, or use (as applicable) the Disclosure Statement or other Solicitation Materials, the Plan, and each other Definitive Document unless such document is in form and substance reasonably acceptable to those parties as set forth in Section 3.02, and (iv) negotiate in good faith, execute, perform their obligations under, and consummate the transactions contemplated by, the Definitive Documents to which the respective Company Parties are (or will be) a party; provided, that the obligations of the Company Parties under this Section 6.01(f) shall in no way alter or diminish any right expressly provided to any applicable Consenting Lender under this Agreement to review, comment on, and/or consent to the form and/or substance of any document in accordance with the terms hereof;
(g) promptly notify the Ad Hoc Group’s Advisors in writing (email being sufficient) of (i) the initiation, institution, or commencement of any proceeding by a Governmental Entity (or communications indicating that the same may be contemplated or threatened) involving any of the Company Parties (including any assets, Permits, businesses, operations, or activities of any of the Company Parties) or any of their respective current or former officers, employees, managers, directors, members, or equity holders (in their capacities as such), (ii) the initiation, institution, or commencement by any Person of any proceeding involving any of the Company Parties (or communications indicating that the same may be contemplated or threatened) that could result in or is likely to have a material impact in any manner on any of the Company Parties’ process to solicitbusinesses (including any assets, initiatePermits, encouragebusinesses, induce, negotiate, facilitate, continue, developoperations, or respond activities of any of the Company Parties) or any of their respective current or former officers, employees, managers, directors, members, or equity holders (in their capacities as such), (iii) the initiation, institution, or commencement of any proceeding by a Governmental Entity or other Person challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain, or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (iv) any material breach by any of the Company Parties in any respect of any of their obligations, representations, warranties, or covenants set forth in this Agreement, (v) the happening or existence of any event that shall have made any of the conditions precedent to any Person’s obligations set forth in (or to be set forth in) any of the Definitive Documents or this Agreement (including in the section of the Restructuring Term Sheet entitled “Conditions Precedent to the Effective Date”) incapable of being satisfied so as to permit consummation of the Restructuring Transactions prior to the Outside Date, (vi) the occurrence of a “Termination Event” pursuant to Section 11, and/or (vii) the receipt of notice from any Governmental Entity or other Person alleging that the consent of such Person is or may be required under any Organizational Document, material contract, Permit, law, or otherwise in connection with the consummation of any part of the Restructuring Transactions;
(h) maintain the good standing and legal existence of each Company Party under the laws of the state or jurisdiction in which it is incorporated, organized, or formed, except to the extent that any failure to maintain such Company Party’s good standing arises solely as a result of the filing of the Chapter 11 Cases;
(i) if any Company Party receives an Alternative Restructuring Proposals Proposal, (including i) promptly notify the Ad Hoc Group’s Advisors (in each case, no later than three (3) business days after the receipt of such Alternative Restructuring Proposal), with such notification to include the material terms thereof (but not the identity of the Person(s) involved); and (ii) respond promptly to reasonable information requests and questions from the Ad Hoc Group’s Advisors with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent impact of such Alternative Restructuring Proposal requires on the Restructuring Transactions and any action taken or proposed to be taken by the Company Parties in response thereto, but not to include the identity of the Person(s) involved;
(i) conduct their businesses and operations in the ordinary course in a manner that such Alternative Restructuring Proposal not be shared is consistent with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representativespast practices and in compliance with law; and (iiiii) participate use reasonable efforts to preserve intact their business organizations and relationships with third parties (including creditors, lessors, licensors, vendors, customers, suppliers, and distributors) and employees; provided, that this Section 6.01(j) shall in no less than weekly way be construed to preclude the (A) implementation of the agreements set forth on Annex B to the Restructuring Term Sheet or (B) either (x) the negotiation and implementation of amendments to each of the five existing severance agreement amendments to the PREIT Services, LLC Severance Pay Plan for Certain Officers (each, an “Existing Severance Amendment”) on terms and conditions that are acceptable in all respects to the Requisite Consenting Lenders (and which provides severance within the first year after a change of control of 12 months and thereafter of no more frequently if than 12 months, unless in each case otherwise agreed by the Term Loan/PGN Group Representatives determine it is appropriateRequisite Consenting Lenders and the respective Certain Officer) calls with or (y) the Term Loan/PGN Group Representatives regarding rejection (without any amendment, supplement or modification thereto), including the status and progress entry of an order of the Company Parties’ efforts with respect to the development Bankruptcy Court approving such rejection, of any Alternative Restructuring Proposalssuch Existing Severance Amendment, if any such Existing Severance Amendment is not amended in accordance with clause (x);
(k) use commercially provide responses in a reasonably timely manner, whether by directing the Company Parties’ advisors to respond or otherwise, to reasonable efforts diligence requests from the Ad Hoc Group’s Advisors for purposes of the Consenting Lenders’ due diligence investigation in respect of the assets, liabilities, operations, businesses, finances, strategies, prospects, and affairs of the Company Parties; provided, that this Section 6.01(k) shall not impose any obligation on the Company Parties to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives issue any “cleansing letter” or otherwise publicly disclose material non-public information in connection with regular access to information regarding the operations of CCOH;this Agreement; and
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account implement the Restructuring Transactions; and
Transactions in accordance with the Milestones, unless waived or extended in writing by the Requisite Consenting Lenders (o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect which waiver or extension may be effected through email exchanged between counsel to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and counsel to the Consenting Senior Creditors each hereby agree Ad Hoc Group of Lenders) and subject, if applicable, to immediately seek an extension of such deadline, order, any scheduling requests or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed requirements made by the Consenting Senior Creditors; and Bankruptcy Court (z) other than scheduling requests or requirements made solely to at the extent such deadline, order, or proceeding has not been extended or stayed or request of the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingDebtors).
Appears in 1 contract
Samples: Restructuring Support Agreement (Pennsylvania Real Estate Investment Trust)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the each Consenting Creditor severally, and not jointly, agrees in respect of all of its Company Parties agree Claims to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions and vote and exercise any powers or rights available to it (including in accordance with this Agreement, including by complying with Section 4 and Section 5 any creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent they hold or otherwise control any Company Claims/Interests and by electing necessary to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for implement the Restructuring Transactions;
(db) use commercially reasonable efforts to actively oppose and object give any notice, order, instruction, or direction to the efforts of any person seeking Agents or Trustees necessary to object to, delay, impede, or take any other action give effect to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(ec) negotiate in good faith and use commercially reasonable efforts to execute and deliver implement the Definitive Documents and any other that are not inconsistent with this Agreement to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreementbe a party or to which it has consent rights pursuant to Section 3.02;
(fd) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders consent to the extent reasonably prudentuse of their cash collateral and the priming of the liens on the collateral securing the 2017 Term Loans, the 2016 Term Loans and the Second Lien Notes by the liens securing the Senior DIP Facility and Junior DIP Facility, in each case in accordance with the Budget (as defined in the DIP Credit Agreements) and the DIP Order;
(ge) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate negotiate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process any appropriate additional or alternative provisions or agreements to solicitaddress any legal, initiate, encourage, induce, negotiate, facilitate, continue, developfinancial, or respond structural impediment that may arise that would prevent, hinder, impede, delay, or are necessary to any Alternative Restructuring Proposals (including with respect to effectuate the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent consummation of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(of) refrain from taking negotiate in good faith upon reasonable request of any action whatsoever, except as set forth in this Section 6.01(o), with respect other Party any modifications to the Texas Litigation during Restructuring Transactions that improve the Agreement Effective Period; providedtax efficiency of the Restructuring Transactions or are otherwise necessary to address any legal, however, that to the extent any deadline, orderfinancial, or proceeding requires any party to take any action structural impediment that may prevent the consummation of the Restructuring Transactions, in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely case to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take modifications can be implemented without any action necessary to preserve and protect their rights in adverse effect on such proceedingConsenting Creditor.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Affirmative Commitments. Except as set forth in Section 7, during (a) During the Agreement Effective PeriodPeriod as to each Consenting Creditor Party, such Consenting Creditor Party agrees, (in the case of each Consenting Creditor Party, in respect of all of its Company Parties agree Claims/Interests presently owned and hereafter acquired (for so long as it remains the beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial holders thereof)), to:
(ai) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation and implementation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(dii) [reserved;]
(iii) negotiate in good faith and use commercially reasonable efforts to actively oppose execute and object implement the Definitive Documents to which it is required to be a party;
(iv) with respect to each Consenting BrandCo Lender, prior to the efforts date by which the Consenting BrandCo Lender shall be required to vote on the Plan, vote each of its Company Claims/Interests to accept the Plan by delivering its duly executed and completed ballot accepting the Plan in accordance with the Solicitation Materials;
(v) with respect to each Consenting BrandCo Lender, to the extent it is permitted to opt out of the releases set forth in the Plan, elect not to opt out of the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(vi) with respect to each Consenting BrandCo Lender, to the extent that it is permitted to opt in to the releases set forth in the Plan, elect to opt in to the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(vii) with respect to each Consenting BrandCo Lender, not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any person seeking vote or election referred to in clause (ii), (iv), (v), or (vi) above;
(viii) support, and not directly or indirectly object to, delay, impede, or take any other action to interfere with the acceptancewith, implementation, Confirmation or consummation of the Plan; and
(ix) support, and not directly or indirectly object to, delay, impede, or take any other action to interfere with, any motion or other pleading or document filed by a Debtor in the Bankruptcy Court or any other court that is consistent in all respects with this Agreement and the Restructuring Transactions Transactions.
(includingb) In addition to the commitments set forth in Section 5.01(a), if applicableduring the Agreement Effective Period as to the Creditors’ Committee, the Creditors’ Committee agrees to:
(i) upon the written request of the Debtors, timely filing file a formal objection, or joinder to any such objection, to any motion, application, or other pleading filed with the Bankruptcy Court or any other court seeking the entry of objections an order for relief that: (A) is inconsistent with this Agreement in any material respect; or written responses in a Chapter 11 Case(B) to would, or would be reasonably expected to, frustrate the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions;
(eii) negotiate provide, for inclusion in good faith the Solicitation Materials, a letter recommending that all holders of General Unsecured Claims and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation Unsecured Notes Claims vote in favor of the Restructuring Transactions Plan and grant the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result releases contained in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring TransactionsPlan; and
(oiii) refrain from taking upon the written request of the Debtors, timely file a formal objection or opposition to any action whatsoevermotion, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, orderapplication, or adversary proceeding requires any party to take any or other action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take asserting any action necessary to preserve and protect their rights in such proceedingSettled Litigation.
Appears in 1 contract
Samples: Chapter 11 Restructuring Support Agreement (Revlon Consumer Products Corp)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective PeriodPeriod and subject to Section 4.03, each Consenting Noteholder agrees to promptly take the Company Parties agree tofollowing actions:
(a) support consenting, voting and take all steps reasonably necessary exercising (or causing to be voted and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreementexercised, including by complying with Section 4 instructing its proxy or other relevant person, as applicable) any powers or rights available to it to vote irrevocably and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation unconditionally in favor of the Plan over any non-accepting classConsent Solicitation;
(b) instructing the Trustee to perform all actions as are reasonably necessary to support, facilitate, implement, consummate or otherwise give effect to the extent Restructuring (provided that such action is not inconsistent, in any legal or structural impediment arises that would preventmaterial respect, hinder, or delay the consummation of with the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impedimentTerm Sheet);
(c) use commercially reasonable efforts to obtain any in respect of the Brazilian RJ Proceeding, the 2026 Notes Units and all required regulatory and/or third-party approvals for the Restructuring Transactions(1) staying or suspending any litigation, appeals, requests to clarify or other challenges against the Company that are pending as of the Agreement Effective Date and (2) voluntarily dismissing any such litigations, appeals, requests to clarify or other challenges on or before the Closing Date;
(d) use to the extent required or reasonably requested by the Company to do so, entering into negotiations in good faith in order to agree to the terms of any Restructuring Documents to which it is proposed to be a party or in respect of which it will have an economic or legal interest and using commercially reasonable efforts to actively oppose execute the Restructuring Documents that are in Agreed Form and object to the efforts of any person seeking which it is required to object to, delay, impede, or take be a party and/or any other action document, notice, order or direction necessary in order to interfere with implement and consummate the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsRestructuring;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by performing all of its obligations under this Agreement;
(f) use commercially reasonable efforts with respect to seek additional support for the Restructuring Transactions from their English Scheme:
(i) so long as its vote has been properly solicited pursuant to the English Companies Act and, subject to any other material stakeholders restrictions imposed by and to the extent not prohibited by applicable law, regulation or order entered by a court of competent jurisdiction: (1) voting or causing to be voted all English Scheme Claims eligible to vote on the English Scheme at any English Scheme Creditors’ Meeting under the English Companies Act, as of the Agreement Effective Date or a later date on which any such vote occurs, which it holds, controls, or has the ability to control, to accept the English Scheme by casting its vote, including by submitting, or causing to submit, all necessary proxies, instructions, directions or consents in respect of the English Scheme Claims (including voting individually to the extent applicable) and (2) to the extent that the Company determines (acting reasonably), subject to any applicable consultation, consent and approval rights of the Parties set forth in this Agreement, that an extension of the time to seek approval of the English Scheme at any English Scheme Creditors’ Meeting is necessary, voting or causing to be voted its English Scheme Claims in favor of such extension (in each case, including voting in favor of and taking all steps necessary to vote in favor of the English Scheme and taking any action that is reasonably prudentrequired to implement any action or inaction proposed under or in connection with the English Scheme);
(ii) supporting, not opposing, and providing express approval for recognition and enforcement of the English Scheme (or other relief as reasonably requested by the Company) in the English Scheme Recognition Cases as reasonably necessary to give effect to or aid in the consummation of the Restructuring and any orders entered by the English Court in the English Scheme, including the English Scheme Sanction Order, and entry of the English Scheme Recognition Order and the English Scheme Enforcement Order;
(iii) providing all information and instructions and taking all actions which, it is reasonably requested to provide or take in respect of the English Scheme and/or the English Scheme Claims (excluding, however, providing evidence in the English Court unless specifically agreed to in writing by the relevant Consenting Noteholder);
(g) consult to the extent the English Scheme is not finally approved by the requisite majority of English Scheme Creditors at the English Scheme Meeting (provided that the English Scheme Meeting may be postponed or adjourned to a subsequent date in order to obtain requisite approval) or is not sanctioned by the English Court, for any reason, negotiate in good faith with the advisors Company Parties alternative mechanisms to receive the Consenting Stakeholders regarding the implementation of New Securities contemplated in the Restructuring Transactions and the development of Alternative Restructuring ProposalsTerm Sheet;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders Company Parties as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur)) with respect to such Party, that would permit any such Party to terminate, or would could reasonably be expected to result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party)such Consenting Noteholder; and (viii) any representation or statement made or deemed to be made by them such Consenting Noteholder under this Agreement which that is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;; and
(j) (i) consult and coordinate in good faith with provide the Term Loan/PGN Noteholder Ad Hoc Group and the Term Loan/PGN Group Representatives regarding Advisors from time to time as reasonably requested by the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to Advisors and upon any Alternative Restructuring Proposals (including change with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent amount of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress their respective holdings of the Company Parties’ efforts 2026 Notes Units, updated information with respect to the development amount of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations its respective holdings of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group2026 Notes Units, and Consenting Sponsors informed of any discussions regarding authorize the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts Noteholder Ad Hoc Group Advisors to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), share such updated information with respect to the Texas Litigation during aggregate holdings of the Agreement Effective Period; provided, however, that Noteholder Ad Hoc Group (not individual holdings) with the Company Advisors and to provide notice to the extent any deadline, order, or proceeding requires any party Company Advisors when the Noteholder Ad Hoc Group ceases to take any action in hold at least 50% of the Texas Litigation during principal amount of the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding2026 Notes Units.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 77.03, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals for the implementation or consummation for the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions, as contemplated by this Agreement;
(e) provide counsel for the Consenting Creditors and counsel for Ares a reasonable opportunity (which, to the extent reasonably practicable, shall be no less than two (2) Business Days) to review draft copies of all Definitive Documents that the Company Parties intend to file with the Bankruptcy Court;
(f) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eg) negotiate timely file a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (i) directing the appointment of an examiner (with expanded powers beyond those set forth in good faith sections 1106(a)(3) and use commercially reasonable efforts (4) of the Bankruptcy Code) or a trustee, (ii) converting the Chapter 11 Cases to execute cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, (iv) modifying or terminating the Company Parties’ exclusive right to file and deliver solicit acceptances of a plan of reorganization or (v) for relief that (A) is inconsistent with this Agreement in any respect or (B) would, or would reasonably be expected to, frustrate the Definitive Documents and any other required agreements to effectuate and consummate purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions as contemplated by this AgreementTransactions;
(fh) timely file a formal objection to any motion, application, or adversary proceeding challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the claims of the Consenting Creditors;
(i) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentcomply with all Milestones;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(hj) upon reasonable request of the Consenting StakeholdersCreditors and Ares (which, in each case, may be through the Ad Hoc Group Advisors and Ares Advisors), as applicable, use commercially reasonable efforts to inform the advisors to the Consenting Stakeholders Ad Hoc Group Advisors and Ares Advisors as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(ik) inform counsel to the Consenting Stakeholders Ad Hoc Group Advisors and Ares Advisors as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iviii) a breach of this Agreement (including a breach by any Company Party); and (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(nm) use commercially reasonable efforts to operate seek additional support for the Restructuring Transactions from their business other material stakeholders to the extent reasonably prudent and, to the extent the Company Parties receive any Joinders or Transfer Agreements, to notify the Consenting Creditors of such Joinders and Transfer Agreements;
(n) promptly pay the Consenting Parties Fees and Expenses in accordance with this Agreement and the ordinary courseapplicable fee letters on a monthly basis and within ten (10) Business Days of receipt of invoices thereof;
(o) not seek application of the equitable doctrine of marshaling, taking into account section 506(c) of the Bankruptcy Code or section 552(b) of the Bankruptcy Code with respect to any of the Senior DIP Facility, Junior DIP Facility, 2017 Term Loan adequate protection liens and claims, or the existing 2017 Term Loan Claims without the consent of the Required Consenting Creditors;
(p) negotiate in good faith upon reasonable request of any other Party any modifications to the Restructuring Transactions that improve the tax efficiency of the Restructuring Transactions or are otherwise necessary to address any legal, financial, or structural impediment that may prevent the consummation of the Restructuring Transactions, in each case to the extent such modifications can be implemented without any adverse effect on such Company Party; and
(oq) refrain from taking provide any action whatsoeverinquiry, except as set forth in this Section 6.01(o)proposal, with respect offer, bid or term sheet that solely seeks to refinance the Second Lien Exit Facility or the Eligible Notes to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties Ad Hoc Group Advisors and the Consenting Senior Creditors each hereby agree to immediately seek an extension Ares Advisors within two (2) Business Days of receiving such deadlineinquiry, orderproposal, offer, bid or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingterm sheet.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classInterests;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use make commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use make commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Scheme of Arrangement or Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentprudent and to the extent the Company Parties receive any Joinders, notify the Consenting Stakeholders of such Joinders;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions Transactions, including with respect to:
(i) the Implementation Mechanisms to be used in order to implement and consummate the development Restructuring Transactions, including whether to terminate or not initiate an Implementation Mechanism;
(ii) with respect to any Schemes of Alternative Restructuring ProposalsArrangement of the Credit Agreement Claims, the jurisdiction and steps for the launch of each such Schemes of Arrangement;
(iii) the identity of the Filing Entities in any Chapter 11 Cases; and
(iv) whether it is necessary or desirable for the Company Parties to seek any Ancillary Proceedings;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Consolidated Group; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take do all steps things reasonably necessary and desirable proper to confirm the Plan (i) support and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 (ii) prosecute and Section 5 defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests Confirmation Order and by electing to seek and prosecute confirmation of the Plan over any non-accepting class(iii) comply with each Milestone set forth in this Agreement;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory and/or third-party approvals necessary or required for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, implementation or consummation of the Restructuring Transactions (including, if applicable, or approval by the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation Bankruptcy Court of the Restructuring TransactionsDefinitive Documents;
(ed) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) not seek to amend or modify, or file a pleading seeking authority to amend or modify, the Definitive Documents in a manner that is inconsistent with this Agreement;
(f) use commercially reasonable efforts not file or seek authority to seek additional support for file any pleading materially inconsistent with the Restructuring Transactions from their other material stakeholders to or the extent reasonably prudentterms of this Agreement;
(g) consult with not conduct any transaction not in the advisors ordinary course of business (no matter whether the Company Parties have received Bankruptcy Court’s authorization to conduct such transaction), unless the Company Parties have received prior written consent from the Required Consenting Stakeholders regarding Noteholders; provided that any transaction (or a series of related transactions) in an amount exceeding $10 million is deemed to be not in the implementation ordinary course of business for the Restructuring Transactions and the development purposes of Alternative Restructuring Proposalsthis clause (g);
(h) upon reasonable request of timely file a formal written response in opposition to any objection filed with the Consenting Stakeholders, inform the advisors bankruptcy court by any person with respect to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel timely file a formal objection to any motion filed with the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: Bankruptcy Court by any person seeking the entry of an order (i) any event directing the appointment of a trustee or circumstance that has occurred, or that is reasonably likely to occur examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and if it did so occur(4) of the Bankruptcy Code), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases or (v) for relief that (y) is inconsistent with this Agreement in any matter material respect or circumstance which they know(z) would reasonably be expected to frustrate the purposes of this Agreement, or suspect is likely, to be a material impediment to the implementation or including by preventing consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith timely file a formal objection to any motion filed with the Term Loan/PGN Group and Bankruptcy Court by any person seeking the Term Loan/PGN Group Representatives regarding entry of an order modifying or terminating the Company Parties’ process exclusive right to solicitfile and/or solicit acceptances of a plan of reorganization, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities)as applicable; (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;and
(k) use commercially promptly pay the reasonable efforts to provide fees and expenses of the Term Loan/PGN Ad Hoc Group Representatives of Noteholders in accordance with this Agreement and the applicable fee letters on a monthly basis and within ten (10) Business Days of receipt of invoices thereof and pay the Consenting Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, Fees and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingExpenses.
Appears in 1 contract
Samples: Restructuring Support Agreement (Pioneer Energy Services Corp)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, each of the Company Parties agree toshall:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement or the Plan, (i) support and take all steps reasonably necessary and desirable to address any such impediment and (ii) negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in consultation with the Consenting Creditors;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a the Chapter 11 CaseCases) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult deliver draft copies of all material motions, or applications and other material documents related to the Restructuring Transactions (including the Plan, the Disclosure Statement, ballots and other Solicitation Materials and any proposed amended version of the Plan or the Disclosure Statement, and a proposed Confirmation Order, but not including any retention applications) Xxxxx intends to file with the advisors Bankruptcy Court to counsel to the Consenting Stakeholders Creditors, at least two (2) Business Days prior to the date when Xxxxx intends to file any such document (provided, that if delivery of such document at least two (2) Business Days in advance is impossible or impracticable under the circumstances, such document shall be delivered as soon as otherwise practicable prior to such filing) and shall consult in good faith with counsel to the Consenting Creditors regarding the implementation form and substance of any such proposed filing with the Restructuring Transactions and the development of Alternative Restructuring ProposalsBankruptcy Court;
(h) maintain good stranding under the laws of the states or other jurisdictions in which the Company Parties are incorporated or organized;
(i) upon reasonable request of the any Consenting StakeholdersCreditors, inform the advisors counsel to the Consenting Stakeholders Creditors as to: (i) the status and progress of the Restructuring Transactions, Transactions including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(ij) inform counsel to the Consenting Stakeholders Creditors in writing as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this AgreementAgreement or any Definitive Document; (ii) any matter or circumstance which they know, or suspect is likely, to be reasonably believe could have a material impediment to the implementation or consummation of the Restructuring Transactions, including any failure of any conditions precedent; and (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any the Company PartyParties; (iv) any third party notice alleging that such third party’s consent is required to implement the Restructuring Transactions; (v) a breach of this Agreement (including a breach by any the Company PartyParties); and (vvi) any representation or statement made or deemed to be made by them the Company Parties under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(jk) promptly notify the Consenting Creditors in writing of any material, written governmental or third party complaints, litigations, investigations, or hearings (ior written communications indicating that the same may be contemplated or threatened against any of the Company Parties, including in connection with the Restructuring Transactions);
(l) consult and coordinate operate the business in the ordinary course provided, however, if the Company Board determines in good faith with that operation of the Term Loan/PGN Group and business in the Term Loan/PGN Group Representatives regarding the Company Parties’ process ordinary course is not advisable due to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, potential health or respond to any Alternative Restructuring Proposals (including with respect safety concerns related to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in COVID-19 emergency, such activitiesdetermination shall not be a breach of this Section 6.01(n); provided, further, that Xxxxx shall provide to the Consenting Creditors written notice of such determination as soon as reasonably practicable thereafter;
(iim) promptly share pay all of the reasonable and documented fees and expenses, subject to the terms of any Alternative Restructuring Proposal applicable engagement letter or reimbursement letter as the case may be, of Weil and Xxxxxxxx as advisors to the First Lien Ad Hoc Group; provided, that the Company Parties receive with shall pay any accrued but unpaid amounts owing under such engagement and/or fee letters to the Term Loan/PGN Group and/or extent required under the Term Loan/PGN Group Representatives unless terms thereof upon the proponent termination of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal this Agreement, but shall not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representativesresponsible for any fees and expenses incurred after termination; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect provided, further that any invoices shall contain summary detail but not be required to the development of any Alternative Restructuring Proposals;contain individual time detail; and
(kA) subject to professional responsibilities, use commercially reasonable efforts to provide prosecute and defend any appeals related to the Term Loan/PGN Group Representatives Restructuring Transactions and Term Lender Group Representatives with regular access (B) execute and deliver any other required agreements to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, effectuate and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account consummate the Restructuring Transactions; and.
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect provide to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent Consenting Creditors (i) summaries of any deadline, order, or proceeding requires oral proposal and other communications regarding an Alternative Restructuring Proposal and (ii) copies of any party to take any action in the Texas Litigation during the Agreement Effective Period, written proposals regarding an Alternative Restructuring Proposal within two (x2) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension Business Days of receipt of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingAlternative Restructuring Proposal.
Appears in 1 contract
Samples: Restructuring Support Agreement (Jason Industries, Inc.)
Affirmative Commitments. Except as set forth in Subject to Section 75 of this Agreement, during the Agreement Effective Period, the each Consenting Stakeholder agrees in respect of all of its Company Parties agree Claims/Interests severally and not jointly to:
(a) support and take all steps reasonably necessary and desirable to confirm consummate and complete the Plan Recapitalization Transactions and consummate implement the Restructuring Transactions terms of the Recapitalization Term Sheet in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent such Consenting Stakeholder holds Unsecured Notes, promptly tender all of its Unsecured Notes to consummate the Recapitalization Transactions and not withdraw its tender, and execute and deliver any legal or structural impediment arises that would prevent, hinder, or delay and all documents necessary to consummate the consummation of transactions contemplated by the Restructuring Transactions contemplated herein, support New Third Lien Notes Term Sheet in accordance with this Agreement and take all steps reasonably necessary and desirable to address any such impedimentthe New Third Lien Notes Term Sheet;
(c) to the extent such Consenting Stakeholder holds Unsecured Notes, as soon as practicable, use commercially reasonable efforts to obtain any deliver executed instructions, submissions reports, or other ordinary course communications typically used for such transactions relating to the Exchange Offer to all applicable custodians or DTC participants, and all required regulatory and/or third-party approvals for the Restructuring Transactionsprovide a copy of such transmission (if available), to Lazard, Ducera, and Xxxxxxxx Xxxxx;
(d) use commercially reasonable efforts to actively oppose and object on or prior to the efforts of any person seeking to object toEffective Date, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably Consenting Stakeholder holds Claims under the Term Loan Credit Facility, promptly execute and deliver the Amended Term Loan Credit Agreement and any and all documents necessary or desirable to facilitate implementation of consummate the Restructuring Transactionstransactions contemplated by the Amended Term Loan Term Sheet, including the Amended Term Loan Credit Agreement, in accordance with this Agreement and the Amended Term Loan Term Sheet;
(e) negotiate in good faith with the other Parties and, where applicable, execute, deliver, and use commercially reasonable efforts to execute and deliver implement each Definitive Document in accordance with the Definitive Documents terms of this Agreement, and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this AgreementRecapitalization Transactions;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders give any notice, order, instruction, or direction to any applicable Agent/Trustee reasonably necessary to give effect to the extent reasonably prudent;Recapitalization Transactions; provided that nothing herein or in this Agreement obligates a Consenting Unsecured Noteholder or a Consenting Term Loan Lender to indemnify any Agent/Trustee; and
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation extent they become aware of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholderssame, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform reasonably promptly notify counsel to the Consenting Stakeholders as soon as reasonably practicable Company Parties of (and in any event within two (2) Business Days after becoming aware of: obtaining actual knowledge thereof) (i) any event Governmental Body or circumstance that has occurredany other third party complaints, litigations, investigations, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including hearings with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.Recapitalization Transactions;
Appears in 1 contract
Samples: Transaction Support Agreement
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably reasonable and necessary and desirable steps to confirm the Plan and (i) consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 (ii) prosecute and Section 5 defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests Confirmation Order, and by electing to seek and prosecute confirmation of the Plan over any non-accepting class(iii) comply with each Milestone set forth in this Agreement;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory governmental, regulatory, environmental, and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of seek additional support for the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) from their other material stakeholders to the extent reasonably prudent, and to the extent the Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders of such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsJoinders and Transfer Agreements;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable actively oppose and object to the efforts of any person seeking to seek additional support for object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions from their other material stakeholders (including, if applicable, the filing of timely objections or written responses) to the extent such opposition or objection is reasonably prudentnecessary or desirable to facilitate implementation of the Restructuring;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the their advisors to the Consenting Stakeholders as to: :
(i) the status and progress of the Restructuring Transactionscontract rejection process, including progress in relation to the negotiations of the Definitive Documents; , and discussions with shareholders;
(ii) any potential rejection, termination, breach, assumption, renegotiation, or other modification with respect to any of the Company Parties’ midstream contracts or entry into any new midstream contracts by the Company Parties;
(iii) the payment of any prepetition claims in excess of $1 million to the extent the payment of such claims is not authorized by this Agreement, the Plan, or any First Day Order other than the DIP Orders;
(iv) the business and financial (including liquidity and budget) performance of the Company Parties;
(v) hedging strategies (it being understood that so long as the required consultation or consent, as the case may be, is obtained regarding hedging strategies, then no consultation or consent is required to enter into individual hedge contracts);
(vi) strategy concerning the maximization of tax efficiencies;
(vii) the Claims reconciliation process;
(viii) changes to the compensation of management team members; and
(ix) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body body, or any stock exchange;
(h) without limiting any consent rights otherwise provided in this Agreement, obtain the consent of the Required Consenting Stakeholders prior to effecting any action, series of actions, payment, or strategy, as applicable, contemplated by Sections 7.01(g)(ii), 7.01(g)(iii), or 7.01(g)(v) above if the amount is at least $1 million;
(i) provide the Consenting Stakeholders reasonable access to the books and records of the Company Parties upon reasonable advance notice to the Company Parties and without disruption to the operation of the Company Parties’ business;
(j) provide the Consenting Stakeholders reasonable access to the management of the Company Parties upon reasonable advance notice to the Company Parties and without disruption to the operation of the Company Parties’ business;
(k) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: :
(i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; Agreement with respect to such Party;
(ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; ;
(iii) any notice of any commencement of any material involuntary insolvency proceedingsproceeding, legal suit for payment of debt material debt, or securement enforcement of a security from or interest by any person in respect of material property owned by any Company Party; ;
(iv) a any breach of this Agreement (including a any breach by any Company Party); and ;
(v) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents;
(vi) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(vii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;; and
(jviii) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, any material operations or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress financial developments of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;.
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(A) provide counsel for the Consenting Stakeholders all Definitive Documents and substantive pleadings (including, without limitation, all First Day Pleadings and “second day” pleadings) and any other substantive documents that the Company Parties intend to file in the Chapter 11 Cases no later than the time specified in Section 3.03 hereof, and (B) be available to consult in good faith with counsel to the Consenting Stakeholders regarding the form and substance of any document referred to in the immediately preceding clause (A) before filing such document in the Chapter 11 Cases;
(n) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(o) comply with the terms, conditions, and obligations of the DIP Credit Agreement Documents, including the DIP Orders, once approved or entered, as applicable, by the Bankruptcy Court;
(p) operate their business businesses in the ordinary course, taking into account the Restructuring Transactions and the Chapter 11 Cases;
(q) on or after the date hereof, not engage in any material merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside of the ordinary course of business other than the Restructuring Transactions; provided that the foregoing shall not prohibit any actions taken pursuant to the De Minimis Asset Sale Order or any First Day Order other than the DIP Orders; provided that the foregoing does not prevent any incurrence of indebtedness pursuant to the DIP Orders.
(r) timely file a formal objection, after consultation in good faith with the Consenting Stakeholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or (iv) directing the appointment of an equity committee, whether pursuant to section 1102(a)(2) of the Bankruptcy Code or otherwise, in the Chapter 11 Cases;
(s) support the mutual release and exculpatory provisions to be provided in the Plan;
(t) timely file a formal objection, after consultation in good faith with the Consenting Stakeholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(u) engage Xxxxxxx & Marsal, Inc., or another person acceptable to the Required Consenting Stakeholders, as Chief Restructuring Officer, who shall report to the Chief Executive Officer of the Company;
(v) not establish, effectuate, or seek approval of any additional incentive or retention plans, including a key employee incentive plan or a key employee retention plan, during the course of the Chapter 11 Cases;
(w) fund the Noteholder Counsel Retainer and the Noteholder Advisor Pre-Fund in accordance with Sections 2.01(d) and 2.01(e) hereof; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) pay the Company Parties and Transaction Expenses of the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights Stakeholder Professionals in such proceedingaccordance with Section 14 hereof.
Appears in 1 contract
Samples: Restructuring Support Agreement (Gulfport Energy Corp)
Affirmative Commitments. Except as set forth in Section 78 of this Agreement, during the Agreement Effective Period, the Company Parties and the GP agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinin this Agreement, support and take all commercially reasonable steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(i) provide the Ad Hoc Group Advisor a reasonable opportunity to review draft copies of all First Day Pleadings, and (ii) to the extent reasonably practicable, provide a reasonable opportunity to the Ad Hoc Group Advisor, if the Consenting Senior Noteholders are materially affected by such filing, to review draft copies of other documents that the Company Parties intend to file with the Bankruptcy Court, as applicable; provided that, to the extent reasonably practicable, the Company Parties shall provide the Ad Hoc Group Advisor all such other documents no less than two (2) days in advance of such filing;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult agree to, support, and accept a global mutual release with the advisors respect to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposalsrelated transactions consistent with this Agreement;
(h) upon reasonable request if 95% of the Consenting Stakeholders, inform Senior Noteholders by face amount of Senior Notes Claims have not participated in the advisors to Debt Exchange or the Consenting Stakeholders Cash Tender (each as to: (idefined in the Term Sheet) by the status and progress end of the Restructuring Transactions25th Business Day after the Launch Date, including progress in relation to then the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) Parties will consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives Consenting Senior Noteholders regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent commencement of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business Chapter 11 Cases in the ordinary course, taking into account the Restructuring TransactionsChosen Court; and
(oi) refrain from taking any action whatsoeverfile on the first day of an In-Court Restructuring a motion (i) to assume the Backstop Agreement, except and (ii) for authority to pay the fees and other amounts under this Agreement and under the Backstop Agreement, including the Commitment Fee (as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action defined in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingTerm Sheet).
Appears in 1 contract
Samples: Restructuring Support Agreement (Martin Midstream Partners L.P.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment, including cooperation with IIA and IIA-related filings as necessary;
(c) consent to, support, and participate in all of the releases and exculpation provisions contained herein or described in the Restructuring Term Sheet;
(d) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to , including, without limitation, any consent necessary from the efforts of any person seeking to object to, delay, impedeIIA, or take any other action applicable United States law with respect to interfere with the acceptance, implementation, or consummation any of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation actions under any of the Restructuring Transactions;
(e) cooperate fully, and cause its officers, directors, employees, managers, consultants, and advisors to cooperate fully, with the Consenting Creditors, the Consenting Creditor Advisors and the Consultants, in furnishing information as and when reasonably requested by the Consenting Creditors, the Consenting Creditor Advisors or the Consultants regarding the Company’s financial affairs, finances, financial condition, employees, business and operations and directs and authorizes its officers, directors, employees, managers, consultants, and advisors to fully disclose to the Consenting Creditors, the Consenting Creditor Advisors and the Consultants all information reasonably requested by such parties regarding the foregoing. The Company authorizes the Consenting Creditors, the Consenting Creditor Advisors and the Consultants to meet and/or have discussions with any of the Company’s officers, directors, employees, managers, consultants, and advisors from time to time as reasonably requested by the Consenting Creditors, the Consenting Creditor Advisors and the Consultants (regardless of whether employees of the Company are present) to discuss any matters regarding the Company’s financial affairs, finances, financial condition, business and operations, and shall direct and authorize all such persons and entities to fully disclose to the Consenting Creditors, the Consenting Creditor Advisors and the Consultants all information reasonably requested by such parties regarding the foregoing. Each Company Party waives and releases any such officer, director, employee, manager, consultant, and advisor from the operation and provisions of any confidentiality agreement with the Company Parties, such that such person or entity is not prohibited from providing any of the foregoing information to the Consenting Creditors, the Consenting Creditor Advisors and the Consultants on a confidential basis;
(f) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) [reserved]
(h) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent implement cost cutting measures as reasonably prudent;
(g) consult with the advisors to requested by the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchangeCreditors;
(i) inform counsel to comply with the Consenting Stakeholders Approved Budget and the Permitted Variances covenant (each as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (defined and if it did so occur), that would permit any Party to terminate, or would result set forth in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company PartyTerm Sheet); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j1) provide counsel for the Consenting Creditors a reasonable opportunity to review draft copies of all material pleadings, including the Israeli Court Motion, in the Israeli Debt Arrangement Proceeding and the Chapter 15 Case and, (i2) consult and coordinate to the extent reasonably practicable, provide a reasonable opportunity to counsel to any Consenting Creditors materially affected by such filing to review draft copies of other documents that the Company Parties intend to file with the Bankruptcy Court or Israeli Court, as applicable;
(k) work in good faith with the Term Loan/PGN Group Consenting Creditors to determine if any Parallel Proceedings are reasonable and necessary; and
(l) as soon as practicable and in any event, unless otherwise agreed to by the Term Loan/PGN Group Representatives regarding Consenting Creditors, within two (2) Business Days after the Company Parties receive notice or obtain knowledge of any of the following, give written notice to the Consenting Creditors of (each of the following, individually, a “Material Event”):
(i) the resignation of any officer of any Company Party or of any director or member of the board of directors, board of managers, or such similar governing body of any Company Party;
(ii) any material loss or damage to any assets or property of the Company Parties;
(iii) the filing or commencement by any Governmental Regulatory Authority of any action, suit or other proceeding for the condemnation or other taking (including by eminent domain) of any material portion of the assets of the Company Parties;
(iv) the filing or commencement of any motion, action, suit or other proceeding against any Company Parties by or before any court or arbitrator or Governmental Regulatory Authority (i) involving material claims against any Company Parties, (ii) seeking any material injunctive, declaratory or other equitable relief against any Company Parties, (iii) instituted for the purpose of revoking, terminating, suspending, withdrawing, modifying or withholding any material approval from a Governmental Regulatory Authority, as applicable;
(v) any written notice to any of the Company Parties indicating that any material approval by a Governmental Regulatory Authority will not be granted or renewed, or will not be granted or renewed in time to allow continued operation of any the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, developbusiness operations in compliance with all applicable Law, or respond to will be granted or renewed on terms more burdensome than proposed, or will be terminated, revoked or suspended, or the filing or commencement of any Alternative Restructuring Proposals action, suit or other proceeding seeking any of the foregoing; and
(including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (iivi) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent default, event of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress default, termination event, or other breach under any material contract of the Company Parties’ efforts with respect , or any amendment of, supplement to the development or other modification of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, ordersuch material contract, or proceeding requires any party event, circumstance or occurrence which could reasonably be expected to take any action in the Texas Litigation during the Agreement Effective Period, (x) materially impair or affect either the Company Parties and or the Consenting Senior Creditors each hereby agree to immediately seek an extension relevant counterparty’s performance of such deadline, order, its material obligations or proceeding; (y) that lead the relevant Company Parties may file motions or any other party thereto to xxxxx and/or stay the Texas Litigationterminate any such material contract, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent including any assignment of any such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingmaterial contract.
Appears in 1 contract
Affirmative Commitments. Except as set forth expressly permitted in Section 79.02, during the Agreement Effective Period, each of the Company Parties agree Debtors agrees to, and agrees to cause each of its direct and indirect subsidiaries to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 Agreement and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classMilestones;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, impede, or delay the consummation of the Restructuring Transactions contemplated hereinTransactions, support and take all steps reasonably necessary and desirable to address any such impediment, and negotiate in good faith any appropriate additional or alternative provisions or agreements to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements take all steps reasonably necessary to effectuate and (i) consummate the Restructuring Transactions as contemplated by and (ii) execute and implement the Definitive Documents;
(e) not file or seek authority to file any pleading inconsistent with this Agreement, including the consent rights set forth in Section 3, or the Restructuring Transactions;
(f) use commercially reasonable efforts timely file a formal objection to seek additional support any motion, application, or pleading filed with the Bankruptcy Court seeking the entry of an order for relief that: (i) is materially inconsistent with this Agreement or any Definitive Document; or (ii) would, or would be reasonably expected to, frustrate the purposes of this Agreement or any Definitive Document, including by preventing the consummation of the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentTransactions;
(g) consult with the advisors timely file a formal objection or opposition to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposalsany motion, application, or adversary proceeding or other action or proceeding asserting any Settled Litigation;
(h) oppose and object to any motion, application, adversary proceeding, or cause of action filed with the Bankruptcy Court by any party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; (iii) dismissing the Chapter 11 Cases; or (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(i) oppose any objections filed with the Bankruptcy Court to the Plan, any other Definitive Document, or the Restructuring Transactions;
(j) inform counsel to the Ad Hoc Group of BrandCo Lenders and the Creditors’ Committee within two (2) Business Days after becoming aware of (i) any matter or circumstance, that they know or believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ii) a breach of this Agreement (including a breach by any Debtor); or (iii) any representation or statement made or deemed to be made by any Debtor under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(k) upon reasonable request of the any Consenting StakeholdersCreditor Party, reasonably and promptly inform the advisors counsel to the Consenting Stakeholders as tosuch party of: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor Party, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body body, or any stock exchange;
(i) inform counsel . For the avoidance of doubt, the Debtors shall continue to provide financial data to stakeholders, including the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation Ad Hoc Group of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group BrandCo Lenders and the Term Loan/PGN Group Representatives regarding the Company PartiesCreditors’ process to solicitCommittee, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed required by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingFinal DIP Order.
Appears in 1 contract
Samples: Chapter 11 Restructuring Support Agreement (Revlon Consumer Products Corp)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classInterests;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactionss;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(nk) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(ol) refrain on the Restructuring Effective Date, pay the reasonable, actual, and documented fees and expenses of the 2021 Noteholder Group from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to and after the Texas Litigation during commencement of the Agreement Chapter 11 Cases and through the Restructuring Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingDate.
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case, in a manner reasonably acceptable to the Required Consenting Creditors;
(c) use commercially reasonable efforts to (1) obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
Transactions and (d2) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation obtain orders of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses Bankruptcy Court in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation respect of the Restructuring Transactions;
(ed) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentnecessary and coordinate its activities with the other Parties hereto (subject to the terms hereof) in respect of all matters concerning the implementation and consummation of the Restructuring Transactions, and take any and all appropriate actions in furtherance of this Agreement;
(f) timely file a formal objection to any motion filed with the Bankruptcy Court by any person seeking the entry of an order (i) directing the appointment of an examiner with expanded powers or a trustee, (ii) converting the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Bankruptcy Cases, or (iv) for relief that (x) is inconsistent with this Agreement in any material respect or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement in any material respect, including by preventing the consummation of the Restructuring;
(g) consult with timely file a formal objection to any motion, application, or adversary proceeding challenging the advisors to validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the claims of the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsCreditors;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors provide written notice within two (2) Business Days (in accordance with Section 15.10 hereof) to the Consenting Stakeholders as to: Creditors between the date hereof and the Effective Date of (i1) the status and progress occurrence, or failure to occur, of any event of which the Company Parties have actual knowledge which occurrence or failure would be likely to cause (A) any covenant of the Restructuring TransactionsCompany Parties contained in this Agreement not to be satisfied in any material respect or (B) any condition precedent contained in the Plan not to timely occur or become impossible to satisfy, (2) receipt of any notice from any third party of which the Company Parties are aware alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring, and (3) receipt of any material notice of which the Company Parties are aware, including progress in relation from any governmental unit with jurisdiction, of any proceeding commenced, or, to the negotiations actual knowledge of the Definitive Documents; Company Parties, threatened against the Company Parties, relating to or involving or otherwise affecting in any respect the transactions contemplated by the Restructuring and (ii4) any failure of the status of obtaining Company Parties to comply, in any necessary material respect, with or desirable authorizations (including satisfy any consents) from each Consenting Stakeholdercovenant, any competent judicial body, governmental authority, banking, taxation, supervisorycondition, or regulatory body agreement to be complied with or any stock exchangesatisfied by it hereunder;
(i) inform counsel provide draft copies of all material motions or applications, Definitive Documents and other documents (including, without limitation, all First Day Pleadings, the Plan, the Disclosure Statement, Solicitation Materials, any proposed amended version of the Plan or the Disclosure Statement, a proposed disclosure statement order and a proposed confirmation order) the Company Parties intend to file with the Bankruptcy Court to the Consenting Stakeholders Ad Hoc Group of Secured Noteholders Advisors and the Ad Hoc Group of Term Loan Lender Advisors at least two (2) Business Days prior to the date when the Company Parties intend to file any such pleading or other document (provided that if delivery of such motions, orders or materials (other than the Plan, the Disclosure Statement, a disclosure statement order, a confirmation order or cash collateral order) at least two (2) Business Days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely prior to occur (and if it did so occurfiling), that would permit and shall consult in good faith with the Ad Hoc Group of Secured Noteholders Advisors and the Ad Hoc Group of Term Loan Lender Advisors regarding the form and substance of each Definitive Document and any Party to terminate, or would result in proposed filing with the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madeBankruptcy Court;
(j) subject to compliance with all applicable confidentiality agreements or obligations, provide to the Consenting Creditors and/or their respective professionals, upon reasonable advance notice to the Company Parties, (i1) consult reasonable access to the respective management and coordinate in good faith with advisors of the Term Loan/PGN Group and Company Parties for the Term Loan/PGN Group Representatives regarding purposes of evaluating the Company Parties’ finances and operations and participating in the planning process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); Restructuring, (ii2) promptly share prompt access to any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; information provided to any existing or prospective financing sources (including lenders under any exit financing) and (iii3) participate in no less than weekly (timely and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect reasonable responses to the development of any Alternative Restructuring Proposalsall diligence requests;
(k) use commercially reasonable good faith efforts to provide the Term Loan/PGN Group Representatives develop and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account structure the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth Transactions in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) a tax efficient manner for the Company Parties and the Consenting Senior Creditors;
(l) comply with all Milestones;
(m) pay the RSA Premium to the Consenting Creditors each hereby agree on the RSA Premium Payment Date; and
(n) pay all the reasonable and documented fees and expenses of the Ad Hoc Group of Secured Noteholders Advisors, the Ad Hoc Group of Term Loan Lender Advisors and the Term Loan Agent incurred on or prior to immediately seek an extension the date of such deadlinetermination of this Agreement, ordersubject to the terms of any applicable engagement letter or reimbursement letter, or proceedingas the case may be; (y) provided that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions any invoices shall not be opposed by the Consenting Senior Creditors; and (z) solely required to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingcontain individual time detail.
Appears in 1 contract
Samples: Restructuring Support Agreement (FTS International, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, each Consenting Stakeholder, severally, and not jointly, agrees, in respect of all of its Company Claims/Interests presently owned and hereafter acquired (for so long as it remains the Company Parties agree beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial holders thereof), to:
(ai) support the Restructuring Transactions and timely vote to accept the Plan by delivering its duly executed and completed ballot(s) accepting the Plan on a timely basis following the commencement of the Solicitation and its actual receipt of the Disclosure Statement and other related Solicitation Materials;
(ii) to the extent it is permitted to elect whether to opt out of the releases set forth in the Plan, elect not to opt out of the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(iii) not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any vote or election referred to in clauses (i) and (ii);
(iv) use commercially reasonable efforts to give, subject to applicable Laws, any notice, order, instruction, or direction to the applicable Agents/Trustees necessary to give effect to the Restructuring Transactions; provided that such Consenting Stakeholder shall not be required to provide such Agent/Trustee with any indemnities or similar undertakings in connection with taking any such action;
(v) use its commercially reasonable efforts and work in good faith to take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement;
(vi) support, including by complying with Section 4 and Section 5 not oppose, entry of the DIP Orders, to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation consistent with the terms of the Plan over any non-accepting classthis Agreement;
(bvii) negotiate in good faith any additional or alternative provisions or agreements to the extent address any legal legal, financial, or structural impediment arises that may arise that would reasonably be expected to prevent, hinder, impede, delay, or delay are necessary to effectuate the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;Transactions; and
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eviii) negotiate in good faith and use commercially reasonable efforts to execute and deliver implement the Definitive Documents and any other that are consistent with this Agreement to which it is required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingparty.
Appears in 1 contract
Samples: Restructuring Support Agreement (Washington Prime Group, L.P.)
Affirmative Commitments. Except as set forth in Section 78, or unless otherwise consented to or waived by the Required Consenting Creditors, during the Agreement Effective Period, the Company Parties agree to:
(a) support support, act in good faith, and take all steps reasonably reasonable actions necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions as contemplated by this Agreement and the Restructuring Term Sheet, including (i) subject to Section 7.02(g), commencing solicitation on the Plan pursuant to the Disclosure Statement and related Solicitation Materials, (ii) using commercially reasonable efforts to consummate the Restructuring Transactions, (iii) obtaining the Bankruptcy Court’s approval of the applicable Definitive Documents, (iv) soliciting the Plan by means of the Disclosure Statement and related Solicitation Materials, and (v) obtaining entry of the Confirmation Order and consummation of the Restructuring Transactions pursuant to the Plan, in each case, in accordance with this Agreement, including by complying the applicable Milestones unless waived in accordance with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classterms hereof;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinTransactions, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals Permits and Consents that are necessary or advisable for the implementation or consummation of any part of the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith faith, execute, and deliver, and use commercially reasonable efforts to execute perform their obligations under, and deliver consummate the transactions contemplated by, the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) timely oppose any objections filed with respect to the Bankruptcy Court’s approval of any of the Definitive Documents;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gi) complete the preparation, as soon as practicable after the Agreement Effective Date, of each of the Definitive Documents (including all motions, applications, orders, agreements, and other documents, each of which, for the avoidance of doubt, shall contain terms and conditions consistent with this Agreement and shall otherwise be in form and substance acceptable in accordance with Section 3.02 of this Agreement), (ii) provide drafts of the Disclosure Statement, the Plan, any other Solicitation Materials, and each other Definitive Document to, and afford a reasonable opportunity for comment and review of such documents by, the Ad Hoc Groups’ Advisors, which opportunity of comment and review shall be not less than two (2) Business Days in advance of any filing, execution, distribution, or use (as applicable) thereof (provided that if delivery of such document at least two (2) Business Days in advance is impossible or impracticable under the circumstances, such document shall be delivered as soon as reasonably practicable), (iii) consult in good faith with the advisors Ad Hoc Groups’ Advisors regarding the form and substance of the Disclosure Statement and other Solicitation Materials, the Plan, and each other Definitive Document, sufficiently in advance of the filing, execution, distribution, or use (as applicable) thereof and not file, execute, distribute, or use (as applicable) the Disclosure Statement, other Solicitation Materials, the Plan, and each other Definitive Document unless such document is consistent with this Agreement and otherwise in form and substance acceptable in accordance with Section 3.02 of this Agreement, and (iv) negotiate in good faith, execute, perform their obligations under, and consummate the transactions contemplated by, the Definitive Documents to which the respective Company Parties are (or will be) a party; provided that the obligations of the Company Parties under this Section 7.01(f) shall in no way alter or diminish any right expressly provided to any applicable Consenting Creditor under this Agreement to review, comment on, and/or consent to the Consenting Stakeholders regarding form and/or substance of any document in accordance with the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposalsterms hereof;
(h) upon reasonable request promptly notify the Ad Hoc Groups’ Advisors in writing (email being sufficient) (and in any event within two (2) Business Days after a Knowledge Party obtains knowledge thereof) of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status initiation, institution, or commencement of any proceeding by a Governmental Entity or other Person challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain, or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (ii) any breach by any of the Company Parties in any respect of any of their obligations, representations, warranties, or covenants set forth in this Agreement, (iii) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or to be set forth in) any of the Definitive Documents (including the conditions precedent to the consummation of the Restructuring Transactions set forth in this Agreement and progress in the section of the Restructuring Term Sheet entitled “Conditions Precedent to the Plan Effective Date”) incapable of being satisfied prior to the Outside Date, (iv) the occurrence of a Termination Event, and/or (v) the receipt of notice from any Governmental Entity or other Person alleging that the Consent of such Person is or may be required under any Organizational Document, contract, Permit, Law or otherwise in connection with the consummation of any part of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to maintain the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing and legal existence of each Company Party under the Laws of the state or other jurisdiction in which they are incorporated it is incorporated, organized, or organizedformed, except to the extent that any failure to maintain such Company Party’s good standing arises solely as a result of the filing of the Chapter 11 Cases;
(nj) subject in all respects to the terms of any applicable Confidentiality Agreements(s) and any applicable confidentiality obligations of the Company Parties, provide the Ad Hoc Groups’ Advisors with reasonably timely responses to reasonable diligence requests provided by any of the Ad Hoc Groups’ Advisors and reasonable requests by any of the Ad Hoc Groups’ Advisors for updates with respect to the status of, or proposed steps or measures regarding, any discussions or negotiations with any of the Company Parties’ other stakeholders, contract counterparties, or other Persons with material business relations with any of the Company Parties regarding any aspect of the Restructuring Transactions, including Sports Leagues and MVPDs; and
(k) except as otherwise expressly set forth in this Agreement, use commercially reasonable efforts to operate (i) conduct their businesses and operations in the ordinary course in a manner that is materially consistent with past practices as may be limited due to the commencement of the Chapter 11 Cases and (ii) preserve intact their business organizations and relationships with third parties (including creditors, lessors, licensors, suppliers, distributors, and customers) and employees in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that any actions required to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) be taken by the Company Parties and pursuant to this Agreement to effectuate the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; Restructuring Transactions in accordance with the terms set forth in this Agreement (yincluding the Restructuring Term Sheet) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by constitute a breach of the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights commitment set forth in such proceedingthis Section 7.01(k).
Appears in 1 contract
Samples: Confidentiality Agreement
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 the applicable milestones set forth on Schedule 1 to this Agreement (collectively, the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class“Milestones”);
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address and resolve any such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory (including self-regulatory) and/or third-party approvals for the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent and to the extent the Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders of such Joinders and Transfer Agreements;
(f) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eg) consult and negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders and their advisors regarding the implementation execution of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the material business and financial (including liquidity) performance of the Consolidated Group; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedingsInsolvency Proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iviii) a breach of this Agreement (including a breach by any Company Party); and (viv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(nk) use commercially reasonable efforts to not (i) operate their business in outside the ordinary course, taking into account the Restructuring Transactions without the consent of the Required Consenting Stakeholders (not to be unreasonably withheld) or (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Stakeholders (not to be unreasonably withheld);
(l) on or after the date hereof, not engage in any material merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside of the ordinary course of business other than the Restructuring Transactions;
(m) use commercially reasonable efforts to (i) provide counsel for the Consenting Stakeholders a reasonable opportunity (which shall be no less than two (2) Business Days) to review draft copies of all First Day Pleadings and second day motions and proposed orders and, (ii) to the extent reasonably practicable, provide counsel for the Consenting Stakeholders a reasonable opportunity to review and provide comments on draft copies of all other substantive documents that the Company Parties intend to file with the Bankruptcy Court; and
(on) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in and all actions necessary and appropriate to ensure that the Texas Litigation during provisions of the NOL Rights Plan are not triggered on account of the Restructuring Transactions or the entry into this Agreement Effective Period, (x) the Company Parties and by any of the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) Stockholders and that the Company Parties may file motions to xxxxx and/or stay NOL Rights Plan is terminated on the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingEffective Date.
Appears in 1 contract
Samples: Restructuring Support Agreement (Parker Drilling Co /De/)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) support commence Solicitation on or before the date set forth in Section 4(a) herein;
(b) commence the Chapter 11 Cases on or before the date set forth in Section 4(b) herein;
(c) support, act in good faith, and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 (i) commencing Solicitation pursuant to the extent they hold or otherwise control any Company Claims/Interests Disclosure Statement and by electing to seek the related Solicitation Materials; and prosecute confirmation (ii) obtaining entry of the Plan over any non-accepting classConfirmation Order, approval of the applicable Definitive Documents, and consummation of the Restructuring Transactions pursuant to the Prepackaged Plan, in each case, in accordance with the applicable Milestones unless waived or modified in accordance with the terms hereof;
(bd) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case, in a manner acceptable to the Consenting Investor, reasonably acceptable to the Required Consenting Noteholders, and, to the extent such necessary and desirable steps materially and adversely impact the Consenting RCF Lenders, reasonably acceptable to the Required Consenting RCF Lenders;
(ce) use commercially reasonable efforts to oppose any party or person from taking any actions contemplated in Section 7.02(b);
(f) (i) stipulate to the allowance and amounts of Prepetition 2025 Notes Claims, Prepetition 2028 Notes Claims, and Prepetition RCF Claims in accordance with the Prepackaged Plan and to the validity of the liens securing any such Claims and (ii) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party challenging the validity, enforceability, perfection or priority of, or seeking avoidance, disallowance or subordination of, any portion of the Prepetition 2025 Notes Claims, Prepetition 2028 Notes Claims, and/or Prepetition RCF Claims or the liens securing such Claims (as applicable);
(g) use reasonable best efforts to obtain any and all required regulatory governmental, regulatory, licensing, Bankruptcy Court, and/or third-party approvals for (including any necessary third-party consents) necessary to implement and/or consummate the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(eh) negotiate in good faith and use commercially reasonable best efforts to execute and deliver implement the Definitive Documents (which shall be consistent with the requirements contained herein and in the Prepackaged Plan) and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fi) use commercially reasonable best efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentnecessary and coordinate their activities with the Consenting Stakeholders (subject to the terms hereof) in respect of all matters concerning the implementation and consummation of the Restructuring Transactions, and take any and all appropriate actions in furtherance of this Agreement;
(gj) consult provide the Consenting Stakeholders with any documentation or information they may reasonably request to facilitate the Restructuring Transactions, including regarding the Company Parties’ business operations and the status of the Restructuring Transactions, subject to any confidentiality restrictions the Company Parties may be subject to;
(k) provide the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions Noteholders and the development of Alternative Restructuring ProposalsConsenting RCF Lenders with reasonably timely responses to all reasonable diligence requests provided by any such advisors;
(hl) upon reasonable request of the Consenting Stakeholdersprosecute and defend any objections, inform the advisors oppositions, or appeals relating to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of First Day Pleadings, the Definitive Bidding Procedures Order, the Solicitation Procedures Motion, the DIP Facility Documents; and (ii) , the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderDisclosure Statement, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring ProposalConfirmation Order;
(m) use commercially reasonable efforts to maintain their good standing under oppose the Laws formation of an official committee of unsecured creditors in the state or other jurisdiction in which they are incorporated or organizedChapter 11 Cases;
(n) use commercially oppose the formation of an official committee of equity security holders in the Chapter 11 Cases;
(o) promptly pay the Ad Hoc Noteholder Group Fees and Expenses, the Consenting RCF Lender Fees and Expenses, and the reasonable efforts and documented fees and expenses of the Prepetition Senior Secured Notes Trustees as and when due; provided that, for the avoidance of doubt, to the extent that this Agreement is terminated in accordance with Section 13 hereof, the Company Parties’ reimbursement obligations under this Section 7.01(o) shall survive with respect to any and all such fees and expenses earned or incurred on or before the Termination Date, and such termination shall not automatically terminate any applicable fee or engagement letters, if any, between the Company Parties and the applicable party or professional;
(p) promptly pay the Consenting Investor Fees and Expenses on the Prepackaged Plan Effective Date;
(q) pay the Consenting RCF Lenders the consent fee set forth in the New RCF Exit Facility Term Sheet on the Prepackaged Plan Effective Date;
(r) timely file a formal objection (in consultation with counsel to the Consenting Noteholders, the Consenting RCF Lenders, and the Consenting Investor) to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (i) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; (ii) dismissing the Chapter 11 Cases; (iii) modifying or terminating the Debtors’ exclusive right to file and solicit acceptances of a plan of reorganization; (iv) seeking the appointment of an official committee of unsecured creditors; (v) seeking the appointment of an official committee of equity security holders; (vi) seeking the appointment of a chapter 11 trustee; or (vii) for relief that (A) is inconsistent with this Agreement in any respect or (B) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of any Restructuring Transaction;
(s) comply with all Milestones;
(t) from the date hereof until the Prepackaged Plan Effective Date, (i) operate their business in the ordinary coursecourse in a manner that is consistent with past practice and this Agreement, and use reasonable efforts to preserve intact the Company Parties’ business organization and relationships with third parties and employees (which shall not prohibit the Company Parties from taking actions outside of the ordinary course of business with the consent of the Consenting Investor), taking into account the Restructuring Transactions; and
(oii) operate the business in the ordinary course, in a manner consistent with applicable Law and actions taken by similarly situated companies in the industry in which the Company Parties operate, and maintain good standing (or equivalent status under the Laws of its incorporation or organization) under the Laws of the jurisdiction in which the Company Parties are incorporated or organized, taking into account the Restructuring Transactions; (iii) consult in good faith with counsel for the Consenting Investor prior to the Company Parties’ entry into, termination of, or modification of any material operational contracts, leases, or other arrangements; (iv) refrain from taking increasing the compensation payable (whether through the payment of, or agreement to pay, bonus amounts or otherwise) to any action whatsoeverexecutive employee, except as set forth required by the terms of and in this Section 6.01(o), accordance with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, written employment or proceeding requires any party to take any action engagement agreement currently in the Texas Litigation during the Agreement Effective Period, (x) effect between the Company Parties and an executive employee or with the prior written consent of the Consenting Senior Creditors each hereby agree Investor; and (v) subject to immediately seek an extension Section 8.01, refrain from entry into any transaction involving the direct or indirect sale, purchase, transfer, or other disposition of a material portion of the Company Parties’ assets without the prior written consent of the Consenting Investor;
(u) notify counsel to the Consenting Investor, counsel to the Consenting Noteholders, and counsel to the Consenting RCF Lenders within two (2) calendar days after obtaining knowledge of the happening or existence of any event that could prevent, hinder, delay, or make any part of the Restructuring Transactions (including the Prepackaged Plan) incapable of being consummated on or prior to the Outside Date;
(v) notify counsel to the Consenting Investor, counsel to the Consenting Noteholders, and counsel to the Consenting RCF Lenders within two (2) calendar days after obtaining knowledge of any (i) occurrence, or failure to occur, of any event which occurrence or failure would cause any covenant of the Company Parties not to be satisfied in any respect; (ii) receipt of any written notice by the Company Parties from any governmental body in connection with this Agreement or the Restructuring Transactions; (iii) receipt of any written notice by the Company Parties of any proceeding commenced or threatened against any Company Party relating to, involving, or otherwise affecting the Restructuring Transactions; or (iv) receipt of any notice from any party alleging that the consent of such deadlineparty is or may be required in connection with the Restructuring Transactions; and
(w) (i) take all actions reasonably necessary or desirable to delist Existing Common Stock Interests from the Nasdaq Stock Market (“Nasdaq”) and to deregister under the Exchange Act as promptly as practicable in compliance with Securities and Exchange Commission (“SEC”) rules, order(ii) file a Form 25 with the SEC to delist the Existing Common Stock Interests from Nasdaq and to deregister the Existing Common Stock Interests from Section 12(b) of the Exchange Act (unless Nasdaq has already filed a Form 25 with the SEC providing for such delisting and deregistration), (iii) file post-effective amendments (the “Post-Effective Amendments”) to terminate all of Parent’s currently effective registration statements under the Securities Act, (iv) file a Form 15 notifying the SEC of the suspension of Parent’s duty to file reports under Section 15(d) of the Exchange Act, (v) take all actions reasonably necessary or proceeding; desirable to delist Existing Common Stock Interests from the Toronto Stock Exchange and to cease to be a reporting issuer under Canadian securities laws, and (yvi) take all actions reasonably necessary or desirable to ensure (A) that the Company Parties may file motions to xxxxx and/or stay New Common Stock and the Texas Litigation, which motions CVRs shall not be opposed listed on a public securities exchange and that the Reorganized Debtors shall not be required to list the New Common Stock or CVRs on a recognized securities exchange, except, in each case, as otherwise may be required pursuant to the New Corporate Governance Documents or the CVR Agreement, as applicable, and (B) that the Reorganized Debtors and/or Post-Effective Date Debtors shall not be voluntarily subjected to any reporting requirements promulgated by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingSEC.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 7, during During the Agreement Effective Period, the each of SoftBank and each Consenting Noteholder agrees, in respect of all of its Company Parties agree Claims/Equity Interests, to:
(a) support support, approve, implement, reasonably cooperate with each of the Parties, and take all steps commercially reasonable actions reasonably necessary, or reasonably requested by any other Party to facilitate the implementation and consummation of the Transactions in accordance with this Agreement and the Term Sheet, including voting and exercising any powers or rights available to it (including in any board, shareholders’, creditors’, or noteholders’ meeting or in any process requiring voting, approval or any action to which they are legally entitled to participate, including, as applicable, tendering any Series of Public Notes and delivering irrevocable consents with respect to any Series of Public Notes in connection with the Transactions), in each case, in favor of any matter requiring voting, approval, or action to the extent reasonably necessary, or reasonably requested by any other Party to implement the Transactions, including the provision of any registration rights pursuant to the terms of the Amended and Restated Registration Rights Agreement;
(b) use commercially reasonable efforts to cooperate with and assist the Company Parties in obtaining additional support for the Transactions from the Company Parties’ other material stakeholders and the issuing creditors, letter of credit participants, and other applicable parties under the Credit Agreement, including, with respect to the SVF II Obligor, by entering into a credit support letter with respect to the maturity extension of the letter of credit facilities under the Credit Agreement as described in the Term Sheet;
(c) use commercially reasonable efforts to oppose any party or Person from taking any actions contemplated in Section 4.02;
(d) give any notice, order, instruction, consent, or direction to the Agents and Trustees applicable to SoftBank’s or such Consenting Noteholders’, as applicable, Company Claims/Equity Interests to the extent necessary to give effect to the Transactions;
(e) use commercially reasonable efforts to promptly obtain any and desirable all regulatory, governmental, and third-party approvals that are necessary or advisable to confirm the Plan effectuate and consummate the Restructuring Transactions, as reasonably determined by the Company Parties, SoftBank, and the Required Consenting Noteholders;
(f) solely with respect to SoftBank, enter into a letter agreement with WeWork consistent with the terms attached hereto as Exhibit E (the “Governance Term Sheet”), which term sheet represents a binding commitment between WeWork (acting through the Special Committee) and SoftBank; provided, however, for the avoidance of doubt, any commitments or obligations pursuant to the Governance Term Sheet shall terminate if the Transactions contemplated hereunder are not consummated for any reason;
(g) solely with respect to each Consenting Noteholder, commit to (i) tender for exchange, and in each case not withdraw, (A) all Public Notes owned by such Consenting Noteholder on or before the Early Exchange Time (as defined in the Backstop Commitment Agreement) and (B) all Public Notes owned by such Consenting Noteholder on or before the Early Exchange Time not previously tendered pursuant to clause (A), in each case in accordance with the terms and procedures set forth in the Offering Memorandum (as defined in the Backstop Commitment Agreement), and, (ii) in connection with its tender of Public Notes, participate in the Consent Solicitations; provided that, notwithstanding anything to the contrary contained herein, the Early Exchange Time shall not occur until the later of (A) April 10, 2023 and (B) such time as there is no default under the Credit Agreement that has not been expressly waived or cured pursuant to the terms of the Credit Agreement as of the date hereof; provided, further, that no such waiver may be effected without the consent of the Required Consenting Noteholders;
(h) negotiate in good faith and use commercially reasonable efforts to execute, deliver, implement, and effectuate the Definitive Documents that are consistent with this Agreement and the Term Sheet and to which it is required to be a party;
(i) support and cooperate with the Company Parties and other Parties to consummate the Transactions in accordance with this Agreement, including by complying with Section 4 the Term Sheet, and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable Definitive Documents;
(bj) if SoftBank has actual knowledge of a breach by SoftBank of SoftBank’s obligations, undertakings, representations, warranties, or covenants set forth in this Agreement or any other Definitive Document, furnish prompt written notice (and in any event within two (2) Business Days of such actual knowledge) to the other Parties hereto;
(k) if any Consenting Noteholder has actual knowledge of a breach by any Consenting Noteholder of such Consenting Noteholder’s obligations, undertakings, representations, warranties, or covenants set forth in this Agreement or any other Definitive Document, furnish prompt written notice (and in any event within two (2) Business Days of such actual knowledge) to the other Parties hereto; and
(l) to the extent any legal or structural impediment arises impediments arise that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated hereinTransactions, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation take all reasonable steps necessary to the negotiations of the Definitive Documents; eliminate any such impediment and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholdernegotiate, any competent judicial bodysubject to applicable Laws and regulations, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with appropriate additional or alternative provisions to eliminate any such impediments; provided that (A) the material terms of the Transactions as contemplated herein and in the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not Sheet shall be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; substantially preserved and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (xB) the Company Parties additional or alternative provisions cannot have a material and adverse impact on the consideration or economic treatment of SoftBank or the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingNoteholders.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Section 79, during the Agreement Effective Period, the Company Parties agree to:
: (a) support and take all steps reasonably necessary and desirable desirable, including those steps reasonably requested by the Ad Hoc Noteholder Group or the Ad Hoc Lender Group to confirm the Plan and consummate the Restructuring Transactions in accordance with this Monitronics of its put option to cause the Backstop Backstop Commitment Shares in accordance with the Agreement (including the exercise by Commitment Parties to purchase the Backstop Commitments pursuant and subject to the terms and conditions set forth in this Agreement and the Put Option Agreement), including by complying with Section 4 and Section 5 the applicable milestones set forth on Schedule 1 to this Agreement (collectively, the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
“RSA Milestones”); (b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address and resolve any such impediment;
; provided, however, that any actions taken in connection with such support or such steps shall be reasonably acceptable to the Ad Hoc Noteholder Group and the Ad Hoc Lender Group; (c) use good faith and commercially reasonable efforts to obtain any and all required governmental, regulatory (including self-regulatory), and/or third-party approvals for the Restructuring Transactions;
Restructuring; (d) d)negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring as contemplated by this Agreement; (e) after the occurrence of the Non-Ascent Restructuring Toggle, negotiate in good faith and use commercially reasonable efforts to execute and deliver amendments to the Definitive Documents and any other required agreements to effectuate and consummate the Non-Ascent Restructuring; (f) pay, in cash, the Default Interest Amount within five (5) days of the Agreement Effective Date, in accordance with the Credit Agreement; (g) seek additional support for the Restructuring from their other material stakeholders to the extent reasonably prudent and as may be reasonably requested by the Ad Hoc Noteholder Group, the Ad Hoc Lender Group, or Ascent and, to the extent the Company Parties receive any Joinders or Transfer Agreements, notify counsel to the Ad Hoc Noteholder Group, counsel to the Ad Hoc Lender Group, and counsel to Ascent of such Xxxxxxxx and Transfer Agreements (irrespective of whether such Joinders or Transfer Agreements were previously 27 EXECUTION VERSION delivered to counsel to the Ad Hoc Noteholder Group, counsel to the Ad Hoc Lender Group, or counsel to Ascent by such joining party or transferee); (h) actively oppose and object to to, in consultation with counsel for the Ad Hoc Noteholder Group, counsel for the Ad Hoc Lender Group, and counsel for Ascent, the efforts of any person Person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the by timely filing of objections or written responses in a the Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
Cases); (ei) negotiate in obtain the requisite consents set forth in this Agreement from, and consult and good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to with, the Consenting Stakeholders Creditors, Ascent, and their respective advisors regarding the implementation and execution of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
Restructuring; (hj) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders Ad Hoc Noteholder Group, the advisors to the Ad Hoc Lender Group, and the advisors to Ascent as to: (i) the material business and financial (including liquidity) performance of Monitronics and all its subsidiaries, (ii) the status and progress of the Restructuring TransactionsRestructuring, including progress in relation to the negotiations of the Definitive Documents; , and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
; (ik) inform notify counsel for the Ad Hoc Lender Group of any breach or default by any Commitment Party under this Agreement, the Put Option Agreement, or any other agreement relating to the Consenting Stakeholders Restructuring, including any default or breach with respect to any Commitment Party’s obligation to fund and/or pay into escrow any part of their respective Backstop Commitment or Equity Commitment, which notice shall be given promptly, and in no event more than twenty-four (24) hours following such breach or default; (l) promptly notify counsel for the Ad Hoc Noteholder Group, counsel for the Ad Hoc Lender Group, and counsel for Ascent as soon as reasonably practicable (but in no event later than forty-eight (48) hours thereafter) after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedingsInsolvency Proceedings, legal suit for payment of debt or securement of security from or by any person Person in respect of any Company Party; member of the Consolidated Group, (ivii) a breach of this Agreement (including a breach by any Company Party); , and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
; (n) use commercially reasonable efforts to operate their business in the ordinary coursecourse and use their commercially reasonable efforts to preserve intact their current material business organizations, and preserve their material relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company Parties, taking into account the Restructuring TransactionsRestructuring; and
28 EXECUTION VERSION (o) refrain from taking any action whatsoeverprovide counsel for the Ad Hoc Noteholder Group, counsel for the Ad Hoc Lender Group, and counsel for Ascent a reasonable opportunity (which shall be no less than three (3) Business Days, except as in the case of the Plan, Disclosure Statement, Disclosure Statement Order, Confirmation Order, DIP Orders, Rights Offering Approval Order, or Backstop Approval Order, which shall be no less than five (5) Business Days) to review draft copies of all Solicitation Materials, First Day Pleadings, second day motions and proposed orders relating thereto, and all other motions, pleadings and documents that the Company Parties intend to file with the Bankruptcy Court, and, without limiting any consent rights set forth in this Section 6.01(o)Agreement, consult in good faith with respect respective counsel to such Parties regarding the Texas Litigation during the Agreement Effective Periodform and substance of any such proposed filing; provided, however, that each such pleading or document shall be consistent in all respects with the terms and conditions set forth in this Agreement; (p) timely file a formal objection (in consultation with the Ad Hoc Noteholder Group and the Ad Hoc Lender Group) to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases; (iv) seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization; (v) sustaining a challenge to the extent any deadlinevalidity, orderenforceability, perfection or priority of, or proceeding requires seeking avoidance or subordination of, any party portion of the Credit Agreement Claims or Notes Claims (as applicable), or asserting any other cause of action against or with respect or relating to take such Claims or any action in pre-petition liens securing such Claims (as applicable); (q)provide, and direct its employees, officers, advisors, and other representatives to provide, to the Texas Litigation Consenting Noteholders, the Consenting Term Lenders, Ascent, and their respective advisors (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Agreement Effective PeriodCompany Parties’ representatives and without disruption to the operation of the Company Parties’ business, (xii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such Persons and without disruption to the operation of the Company’s business and (iii) such other information or access as reasonably requested by the Ad Hoc Noteholder Group, the Ad Hoc Lender Group, Ascent, or their respective legal and financial advisors or as set forth in the Information Sharing Agreement; (r) commence solicitation of votes to accept or reject the Plan by no later than the Prepetition Solicitation Commencement Date and commence the Chapter 11 Cases no later than the Petition Date Milestone; (s) file, on the Petition Date, a motion seeking approval of the DIP Facility and the Consenting Senior Creditors each hereby agree to immediately seek an extension use of such deadline, order, or proceedingcash collateral; (yt) that file, on the Company Parties may file Petition Date, one or more motions to xxxxx and/or stay seeking (A) conditional approval of the Texas LitigationDisclosure Statement and the other Solicitation Materials on an interim basis, which motions shall not be opposed by (B) approval of the Consenting Senior Creditors; Rights Offering Procedures, (C) approval of the Backstop Commitment Documents, and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.29
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascent Capital Group, Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree to:
(a) do all things reasonably necessary to (i) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 (ii) prosecute and Section 5 defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests Confirmation Order, and by electing to seek and prosecute confirmation of the Plan over any non-accepting class(iii) comply with each Milestone set forth in this Agreement;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals reasonably necessary or required for implementation or consummation of the Restructuring Transactionsor approval by the Bankruptcy Court of the Definitive Documents as provided herein;
(d) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring as contemplated by this Agreement;
(e) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this AgreementRestructuring;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the any Consenting StakeholdersCreditor, inform the advisors to the such Consenting Stakeholders Creditor as to: :
(i) the material business and financial (including liquidity) performance of the Company Parties;
(ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and and
(iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(ig) inform counsel to the Consenting Stakeholders Creditors as soon as reasonably practicable after becoming aware of: :
(i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; Agreement with respect to such Party;
(ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; Restructuring;
(iii) any notice of any commencement of any material involuntary insolvency proceedingsproceeding, legal suit for payment of debt debt, or securement enforcement of a security from or interest by any person in respect of any Company Party; ;
(iv) a any breach of this Agreement (including a breach by any Company Party); and ;
(v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;; and
(jvi) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, any material operations or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress financial developments of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;.
(kh) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use make commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(ni) use commercially provide counsel for the Consenting Second Lien Noteholders, the RBL Agent, and the DIP Agent a reasonable efforts opportunity to review draft copies of all material substantive motions, documents, and other pleadings to be filed in the Chapter 11 Cases (for the avoidance of doubt, the following are not material substantive motions, documents, or other pleadings: ministerial notices and similar ministerial documents; retention applications; fee applications; fee statements; any similar pleadings or motions relating to the retention or fees of any professional; and statements of financial affairs and schedules of assets and liabilities), and (ii) to the extent materially affected by such material substantive filings, provide counsel to the Consenting Convertible Noteholders a reasonable opportunity to review draft copies of such filings, in each case (i) and (ii), the Company Parties shall consult in good faith with the applicable Consenting Creditors regarding the form and substance of such material substantive filings;
(j) operate their business businesses in the ordinary course, taking into account the Restructuring Transactionsand the Chapter 11 Cases;
(k) comply with the terms, conditions, and obligations of the DIP Facility Documents and the DIP Orders, once approved or entered, as applicable, by the Bankruptcy Court;
(l) timely file a formal objection, in form and substance reasonably acceptable to the Consenting Creditors, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing any of the Chapter 11 Cases; and
(om) refrain from taking any action whatsoevertimely file a formal objection, except as set forth in this Section 6.01(o), with respect form and substance reasonably acceptable to the Texas Litigation during Consenting Creditors, to any motion filed with the Agreement Effective Period; provided, however, that to Bankruptcy Court by a third party seeking the extent any deadline, order, entry of an order modifying or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) terminating the Company Parties and the Consenting Senior Creditors each hereby agree Parties’ exclusive right to immediately seek an extension file and/or solicit acceptances of such deadlinea plan reorganization, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingas applicable.
Appears in 1 contract
Samples: Restructuring Support Agreement (Denbury Resources Inc)
Affirmative Commitments. Except as set forth in Subject to Section 75 of this Agreement, during the Agreement Effective Period, the each Consenting Stakeholder agrees in respect of all of its Company Parties agree Claims/Interests severally and not jointly to:
(a) support and take all steps reasonably necessary and desirable to confirm consummate and complete the Plan Recapitalization Transactions and consummate implement the Restructuring Transactions terms of the Recapitalization Term Sheet in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent such Consenting Stakeholder holds Unsecured Notes, promptly tender all of its Unsecured Notes to consummate the Recapitalization Transactions and not withdraw its tender, and execute and deliver any legal or structural impediment arises that would prevent, hinder, or delay and all documents necessary to consummate the consummation of transactions contemplated by the Restructuring Transactions contemplated herein, support New Third Lien Notes Term Sheet in accordance with this Agreement and take all steps reasonably necessary and desirable to address any such impedimentthe New Third Lien Notes Term Sheet;
(c) to the extent such Consenting Stakeholder holds Unsecured Notes, as soon as practicable, use commercially reasonable efforts to obtain any deliver executed instructions, submissions reports, or other ordinary course communications typically used for such transactions relating to the Exchange Offer to all applicable custodians or DTC participants, and all required regulatory and/or third-party approvals for the Restructuring Transactionsprovide a copy of such transmission (if available), to Lazard, Ducera, and Xxxxxxxx Xxxxx;
(d) use commercially reasonable efforts to actively oppose and object on or prior to the efforts of any person seeking to object toEffective Date, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably Consenting Stakeholder holds Claims under the Term Loan Credit Facility, promptly execute and deliver the Amended Term Loan Credit Agreement and any and all documents necessary or desirable to facilitate implementation of consummate the Restructuring Transactionstransactions contemplated by the Amended Term Loan Term Sheet, including the Amended Term Loan Credit Agreement, in accordance with this Agreement and the Amended Term Loan Term Sheet;
(e) negotiate in good faith with the other Parties and, where applicable, execute, deliver, and use commercially reasonable efforts to execute and deliver implement each Definitive Document in accordance with the Definitive Documents terms of this Agreement, and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this AgreementRecapitalization Transactions;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders give any notice, order, instruction, or direction to any applicable Agent/Trustee reasonably necessary to give effect to the extent reasonably prudent;Recapitalization Transactions; provided that nothing herein or in this Agreement obligates a Consenting Unsecured Noteholder or a Consenting Term Loan Lender to indemnify any Agent/Trustee; and
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation extent they become aware of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholderssame, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform reasonably promptly notify counsel to the Consenting Stakeholders as soon as reasonably practicable Company Parties of (and in any event within two (2) Business Days after becoming aware of: obtaining actual knowledge thereof) (i) any event Governmental Body or circumstance that has occurredany other third party complaints, litigations, investigations, or that is reasonably likely hearings with respect to occur (and if it did so occur), that would permit any Party to terminate, this Agreement or would result in the termination of, this AgreementRecapitalization Transactions; (ii) any matter or circumstance which they knowmaterial breach by any Consenting Stakeholder in any respect of any of its obligations, representations, warranties, or suspect is likelycovenants set forth in this Agreement; (iii) the occurrence of, to or circumstances that render reasonably foreseeable the occurrence of, any Material Adverse Effect; or (iv) any threat or taking of any action by any Entity that would, or would reasonably be a material impediment to expected to, prevent, interfere with, delay, or impede the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person Recapitalization Transactions in respect of any Company Party; (iv) a breach of manner materially consistent with this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Recapitalization Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingSheet.
Appears in 1 contract
Samples: Transaction Support Agreement (Neiman Marcus Group LTD LLC)
Affirmative Commitments. Except as set forth in Section 76.03, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to actively execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(e) (1) provide counsel for the Consenting RBL Lenders and the Consenting Noteholders a reasonable opportunity (which, to the extent practicable, shall be no less than two (2) Business Days) to review draft copies of all pleadings, motions, and proposed orders (including, without limitation, the First Day Pleadings and all “second day” motions) and, (2) to the extent reasonably practicable, provide a reasonable opportunity to counsel for the Consenting RBL Lenders and the Consenting Noteholders, to review draft copies of all other documents that the Company Parties intend to file with Bankruptcy Court and the Definitive Documents, as applicable;
(f) oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely filed objections or written responses in a Chapter 11 Caseresponses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders and, to the extent reasonably prudent;
(g) consult with the advisors Company Parties receive any Joinders or Transfers Agreements, to notify counsel to the Consenting Stakeholders of such Joinders and Transfer Agreements;
(h) consult and negotiate in good faith with the Consenting Stakeholders and their advisors regarding the completion and execution of the Definitive Documents and the implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(hi) upon reasonable request of the any Consenting StakeholdersStakeholder, inform the advisors to the such Consenting Stakeholders Stakeholder as to: (i1) the material business and financial (including liquidity) performance of the Company Parties; (2) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii3) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body body, or any stock exchange;
(ij) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i1) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), occurred that would permit any Party to terminate, or would result in the termination of, terminate this AgreementAgreement with respect to such Party; (ii2) any matter or circumstance which they know, or suspect is likely, know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii3) any notice of any commencement of any material involuntary insolvency proceedingsproceeding, legal suit for payment of debt debt, or securement enforcement of a security from or interest by any person in respect of any Company Party; (iv4) a any breach of this Agreement (including a breach by any Company Party); and (v5) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any material respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(nl) use commercially reasonable efforts to operate their business businesses in the ordinary course, taking into account the Restructuring TransactionsTransactions and the Chapter 11 Cases;
(m) comply with the terms, conditions, and obligations of the DIP Facility Documents and the DIP Orders, once approved or entered, as applicable, by the Bankruptcy Court;
(n) timely file a formal objection, in form and substance reasonably acceptable to the Required Consenting Stakeholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing any of the Chapter 11 Cases;
(o) timely file a formal objection, in form and substance reasonably acceptable to the Required Consenting Stakeholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan reorganization, as applicable;
(p) not engage in any material merger, consolidation, disposition, acquisition investment, dividend, sale-leaseback, or similar transaction outside the ordinary course without the consent of the Consenting Stakeholders, except as provided in the Definitive Documents; and
(oq) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect subject to the Texas Litigation during terms of the DIP Orders or any other applicable order of the Bankruptcy Court, timely pay the Consenting Stakeholder Fees and Expenses arising prior to and after the Agreement Effective Period; providedDate, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingconsistent with all governing engagement agreements.
Appears in 1 contract
Samples: Restructuring Support Agreement (Oasis Petroleum Inc.)
Affirmative Commitments. Except as set forth in Section 78, during the Agreement Effective Period, the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 the pursuit and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation consummation of the Plan over any nonSale in accordance with the Sale Transaction Term Sheet, and the pursuit and consummation of the Non-accepting classCore Asset Sales;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impedimentimpediment and implement the Restructuring Transactions;
(c) comply with the milestones set forth on Schedule 2 to this Agreement (the “Milestones”);
(d) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(de) use commercially reasonable efforts obtain the consent of the Required Consenting Stakeholders before extending or renewing (or permitting to actively oppose and object be extended or renewed) the term of any collective bargaining agreement to which any Debtors or Non-Debtors, as applicable, are party or that is included in the Sale absent the Company’s ability to terminate such collective bargaining agreement prior to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring TransactionsPlan Effective Date;
(ef) obtain the consent of the Required Consenting Stakeholders before assuming, rejecting, entering into, amending, restating, supplementing, modifying, terminating, replacing, assigning, renewing or otherwise extending the term of (i) any revenue-generating contract that has, or if entered into by the Company would have, a term that is six (6) months or longer. or (ii) any shared service agreement or other similar arrangement with respect to WMLP and its operations;
(g) obtain the consent of the Required Consenting Stakeholders before making any payments under any employee bonus, incentive, retention or benefit plans (other than the Xxxxxxxxxxxx Coal Company 2018 Key Employee Incentive Plan and the Xxxxxxxxxxxx Coal Company 2018 Key Employee Retention Plan;
(h) obtain the consent of the Required Consenting Stakeholders (not to be unreasonably withheld) before (i) filing any Non-Core Asset Sale Procedures Motion (if any), (ii) filing any Non-Core Asset Sale Motions (if any) or proposed Non-Core Asset Sale Orders (if any) or (iii) consummating any Non-Core Asset Sales (if any), the terms of which shall be reasonably acceptable to the Required Consenting Stakeholders;
(i) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fj) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;oppose any party or person from taking any actions contemplated in Section 7.02; and
(l) use commercially reasonable efforts negotiate in good faith with the Consenting Stakeholders the restructuring or other disposition of WMLP and not support any such restructuring or other disposition of WMLP that negatively impacts the Restructuring Transactions (including, but not limited to, any restructuring or disposition of WMLP that would leave liabilities at any of the Debtors the payment of which is required under section 1129(a)(9) of the Bankruptcy Code in order to keep receive entry of the 2021 Noteholder GroupConfirmation Order, or with respect to any non-Debtors, that must be satisfied in full in cash by the Term Lender Group, and Consenting Sponsors informed of any discussions regarding Debtors or the development of any Alternative Restructuring Proposal;Purchaser); and
(m) use commercially reasonable efforts provide counsel to maintain their good standing under the Laws Consenting Stakeholders with copies of the state any Definitive Documents or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts material pleadings to operate their business be filed in the ordinary courseBankruptcy Court at least five (5) Business Days, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadlinepracticable, order, or proceeding requires any party prior to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of filing such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingpleading.
Appears in 1 contract
Samples: Restructuring Support Agreement (WESTMORELAND COAL Co)
Affirmative Commitments. Except as set forth in Section 77.03, during the Agreement Effective Period, the Company Parties agree to:
: (a) use best efforts to (i) pursue the Restructuring Transactions on the terms, and in accordance with the Milestones set forth in this Agreement, and (ii) obtain necessary Bankruptcy Court approval of the Definitive Documents to consummate the Restructuring Transactions; (b) consult with the AHG Professionals regarding the Marketing Process, subject to the AHG Professionals’ non-disclosure agreements, and the AHG Professionals may suggest additional Potential Purchasers, provided that in no event shall the AHG Professionals disclose to the AHG the identity of Potential Purchasers; (c) continue reaching out to Potential Purchasers, including Potential Purchasers suggested by the AHG Professionals, in the Company Parties’ business judgment and in good faith; (d) share with the AHG Professionals any marketing materials used in the Marketing Process and provide regular updates to the AHG Professionals regarding the status thereof, including, among other things, a list of Potential Purchasers contacted by the Company Parties; (e) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
; (bf) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and or desirable to address and resolve any such impediment;
; (cg) support and seek approval of all of the debtor and third-party releases, injunctions, discharge, indemnity, and exculpation provisions provided in the Plan, which shall be in form and substance acceptable to the Required Consenting Term Lenders and the Consenting Sponsors; (h) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
22 (d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(ei) negotiate in good faith and use commercially reasonable efforts to execute execute, deliver, and deliver perform its obligations under the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
Agreement and the other Definitive Documents; (fj) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
; (gk) consult with the advisors to the Consenting Stakeholders regarding extent reasonably practicable, provide counsel for the implementation of the Restructuring Transactions AHG and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of counsel for the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: Sponsors a review period of (i) at least three (3) calendar days (or such shorter review period as is necessary or appropriate under the status and progress of the Restructuring Transactions, including progress in relation circumstances) prior to the negotiations of date when the Company Parties intend to file any Definitive Documents; Document with the Bankruptcy Court and (ii) the status of obtaining any at least one (1) calendar day (or such shorter review period as necessary or desirable authorizations appropriate) prior to the date when the Company intends to file any other material pleading with the Bankruptcy Court (including but excluding monthly or quarterly operating reports, retention applications, fee applications, fee statements, and any consentsdeclarations in support thereof or related thereto); (l) from each provide a reasonable opportunity to counsel to any Consenting StakeholderStakeholders materially affected by any filing to review draft copies of other documents that the Company Parties intend to file with the Bankruptcy Court, as applicable; (m) to the extent applicable, object to any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or motion filed with the Bankruptcy Court by any stock exchange;
person (i) inform counsel seeking the entry of an order terminating the Company Parties’ exclusive right to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event file and/or solicit acceptances of a plan of reorganization or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they knowseeking the entry of an order terminating, annulling, or suspect is likelymodifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any material asset that, to be the extent such relief was granted, would have a material impediment to adverse effect on or delay the implementation or consummation of the Restructuring Transactions; and (n) to the extent applicable, not file any pleading seeking entry of an order, and object to any motion filed with the Bankruptcy Court by any person seeking the entry of an order, (i) directing the appointment of an examiner or a trustee, (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) any notice of any commencement of any material involuntary insolvency proceedingsdismissing the Chapter 11 Cases, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach for relief that (x) is inconsistent with this Agreement in any material respect or (y) would reasonably be expected to frustrate the purposes of this Agreement (Agreement, including a breach by any Company Party); and (v) any representation preventing or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with delaying the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent consummation of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.
Appears in 1 contract
Samples: Restructuring Support Agreement (Cyxtera Technologies, Inc.)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) comply with the milestones set forth in the Restructuring Term Sheet and in any DIP Order (collectively, the “Milestones”);
(c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudentstakeholders;
(g) consult actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the advisors acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the filing of timely filed objections or written responses) to the Consenting Stakeholders regarding the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions and the development of Alternative Restructuring ProposalsTransactions;
(h) upon reasonable request of any of the Consenting Stakeholders, inform the advisors counsel to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or reasonably desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform notify counsel to the Consenting Stakeholders in writing (email being sufficient) of any Remedial Action taken by any creditor within two (2) Business Days of the Company Parties receiving notice or obtaining actual knowledge of such Remedial Action;
(j) notify counsel to the Consenting Stakeholders in writing (e-mail being sufficient) the commencement of any material governmental or third-party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened), in each case, as soon as reasonably practicable after becoming aware reasonable possible, but no later than within two Business Days of the Company Parties receiving notice or obtaining knowledge of any of the foregoing;
(k) notify counsel to the Consenting Stakeholders (email being sufficient) within two calendar days of the Company Parties receiving notice or obtaining actual knowledge of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), occurred that would permit any Party to terminate, or that would result in the termination of, this Agreement; (ii) any matter or circumstance which that they know, or suspect is likely, know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any a material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a material breach by any Company PartyParties); and (viv) any representation or statement made or deemed to be made by any of them under this Agreement which that is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, maintain its and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their its Affiliates’ good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(m) upon reasonable request of any of the Consenting Stakeholders, provide the Consenting Stakeholders with reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business;
(n) provide to counsel to the Consenting Stakeholders drafts of: (i) First Day Pleadings and all orders sought pursuant thereto; (ii) Bidding Procedures Motion; (iii) Sale Order; (iv) the Plan; (v) the Plan Supplement; (vi) the Disclosure Statement; (vii) the Disclosure Statement Order; (viii) the Solicitation Materials; (ix) the DIP Orders; (x) the Confirmation Order, and (xi) all other material filings, in each case, at least two calendar days prior to the date on which the Company Party files such pleading;
(o) use commercially reasonable efforts to operate their business provide to counsel to the Consenting Stakeholders all material draft motions and pleadings not listed in subsection (n) above that the ordinary course, taking into account Company Parties or any of its Affiliates intend to file with the Restructuring TransactionsBankruptcy Court at least two calendar days prior to the date on which such party files such pleading; and
(op) refrain from taking any action whatsoeverpromptly pay Restructuring Expenses, except as set forth in this Section 6.01(o), with respect subject to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingappropriate Bankruptcy Court approval.
Appears in 1 contract
Samples: Restructuring Support Agreement (Vertex Energy Inc.)
Affirmative Commitments. Except as set forth in Section 79, during the Agreement Effective Period, the Company Parties agree to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and (i) consummate the Restructuring Transactions in accordance with this AgreementAgreement (including the Plan Term Sheet), including by complying with Section 4 (ii) obtain entry of the Disclosure Statement Order and Section 5 the Confirmation Order, (iii) prosecute and defend any appeals relating to the extent they hold or otherwise control any Company Claims/Interests Confirmation Order, and by electing to seek and prosecute confirmation of the Plan over any non-accepting class(iv) comply with each Milestone set forth in this Agreement;
(b) seek approval of the terms of the Claims Settlement in connection with Confirmation of the Plan;
(c) to the extent any legal legal, tax, or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(cd) use commercially reasonable efforts to obtain any and all required regulatory or advisable governmental, regulatory, and/or third-party approvals for the Restructuring TransactionsTransactions (including, as applicable, Bankruptcy Court approvals);
(de) use commercially reasonable efforts negotiate in good faith and, where applicable, execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(f) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of timely objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactionsresponses);
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fg) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(g) consult with the advisors prudent and to the extent the Company Parties receive any Joinders or Transfer Agreements, notify the Consenting Stakeholders regarding the implementation Creditors of the Restructuring Transactions such Joinders and the development of Alternative Restructuring ProposalsTransfer Agreements;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions and the Chapter 11 Cases, including continuing to perform their obligations under the DIP Order;
(i) timely file a formal objection, after consultation in good faith with counsel to the Consenting Creditors, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable, (ii) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (iii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iv) dismissing any of the Chapter 11 Cases.
(j) promptly pay all Restructuring Expenses, in each case for which an invoice has been received by the Company Parties;
(k) provide the HoldCo Creditor Ad Hoc Group access to all reporting (including, without limitation, reporting related to financial performance and progress related to C-Band clearing) provided to any other creditors, including, without limitation, the DIP Lenders, in the Chapter 11 Cases;
(l) consult with the Consenting Creditors (including using commercially reasonable efforts to provide advance drafts of material documents) with respect to the regulatory approvals required to consummate the Restructuring Transactions, and keep the Consenting Creditors reasonably updated of the status of the regulatory approval process;
(m) notify the advisors to the Consenting Creditors of any material governmental or third-party complaints, litigations, inquiries, orders to show cause, cease and desist orders, notices of violation, notice of apparent inability, orders of forfeiture, investigations, or hearings (or communications indicating that any of the foregoing is contemplated or threatened) that are reasonably likely to impede the consummation of the Restructuring Transactions; and
(on) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect use commercially reasonable efforts to seek Additional C-Band Proceeds and maximize the Texas Litigation during value of the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingCVRs.
Appears in 1 contract
Affirmative Commitments. Except as set forth in Subject to Section 77 of this Agreement, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm consummate and complete the Plan Recapitalization Transactions and consummate implement the Restructuring Transactions terms of the Recapitalization Term Sheet in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Recapitalization Transactions contemplated hereinin this Agreement, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-third- party approvals that are necessary or advisable for the Restructuring Recapitalization Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith with the other Parties and, where applicable, execute, deliver, and use commercially reasonable efforts to execute and deliver implement the Definitive Documents in accordance with the terms of this Agreement and any other required agreements to effectuate and consummate the Restructuring Recapitalization Transactions;
(e) except with respect to any actions related to the Recapitalization Transactions (or otherwise as contemplated by specifically provided for under this Agreement), use commercially reasonable efforts to (i) preserve intact in all material respects the current business operations of each Company Party, and (ii) preserve in all material respects its business organization and relationships with customers, vendors, suppliers, distributors, and others, in each case, having material business dealings with the Company Parties;
(f) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent they become aware of same, reasonably prudent;
(g) consult with the advisors to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform promptly notify counsel to the Consenting Stakeholders as soon as reasonably practicable Term Loan Steering Committee and counsel to the Ad Hoc Committee of Unsecured Noteholders of (and in any event within two (2) Business Days after becoming aware of: obtaining actual knowledge thereof) (i) any event Governmental Body or circumstance that has occurredany other third party complaints, litigations, investigations, or that is reasonably likely hearings with respect to occur (and if it did so occur), that would permit any Party to terminate, this Agreement or would result in the termination of, this AgreementRecapitalization Transactions; (ii) any matter or circumstance which they knowmaterial breach by any Company Party in any respect of any of its obligations, representations, warranties, or suspect is likelycovenants set forth in this Agreement; (iii) the occurrence of, to or circumstances that render reasonably foreseeable the occurrence of, any Material Adverse Effect; or (iv) any threat or taking of any action by any Entity that would, or would reasonably be a material impediment to expected to, prevent, interfere with, delay, or impede the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person Recapitalization Transactions in respect of any Company Party; (iv) a breach of manner materially consistent with this Agreement and/or the Recapitalization Term Sheet;
(including g) maintain good standing and legal existence under the laws of the state or non-U.S. jurisdiction in which such Company Party is incorporated, organized or formed;
(h) pay and reimburse, on a breach by reasonably prompt basis, all Creditor Fees and Expenses;
(i) pay when due the Noteholder Cash Joinder Payment, and otherwise pay all fees payable under any Company Party); and (v) Definitive Document in accordance with the terms thereof, without setoff, deduction, or withholding for any representation taxes or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madeotherwise;
(j) (i) consult pay in cash all accrued and coordinate unpaid interest accrued through the Effective Date on all Unsecured Notes that are tendered and exchanged in good faith connection with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Recapitalization Transactions; and
(ok) refrain from taking any action whatsoever, except as agree to pay when due the fees set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action under “Fees” in the Texas Litigation during the Agreement Effective PeriodAmended Term Loan Term Sheet without setoff, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, deduction or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, withholding for any taxes or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingotherwise.
Appears in 1 contract
Samples: Transaction Support Agreement
Affirmative Commitments. Except as set forth in Section 77.03, during the Agreement Effective Period, each of the Company Parties agree agrees to:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan implement and consummate the Restructuring Transactions in accordance with the terms, conditions, and applicable deadlines set forth in this AgreementAgreement and the Definitive Documents, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classas applicable;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver deliver, and perform its obligations under, the Definitive Documents and any other required agreements reasonably necessary or desirable to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(1) provide counsel for the Consenting Creditors a reasonable opportunity to review draft copies of all First Day Pleadings and, (2) to the extent reasonably practicable, provide a reasonable opportunity to counsel to any Consenting Stakeholders materially affected by such filing to review draft copies of other documents that the Company Parties intend to file with Bankruptcy Court, as applicable (for the avoidance of doubt, nothing in this clause (f) shall limit or reduce the notice periods required or provided under the Definitive Documents, including, without limitation, the ABL DIP Documents or Term Loan DIP Documents);
(g) consult and negotiate in good faith with the advisors to the Consenting Stakeholders and their advisors regarding the execution of Definitive Documents and the implementation of the Restructuring Transactions and Transactions, solely to the development extent of Alternative Restructuring Proposalsthe consent right sets forth herein;
(h) upon reasonable request of the Consenting StakeholdersCreditors, inform the advisors to the Consenting Stakeholders Creditors as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iiiii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting StakeholderCreditor, any competent judicial body, governmental authorityGovernmental Body, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: of (and in any event within two (2) Business Days of such actual knowledge): (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iiiii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; and (iviii) a any material breach of this Agreement by any Party (including a breach by any Company Party); and (v) any representation of such Party’s obligations, undertakings, representations, warranties, or statement made or deemed to be made by them under covenants set forth in this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be madeother Definitive Document;
(j) to the extent applicable, object to any motion filed with the Bankruptcy Court by any person (i) consult and coordinate in good faith with seeking the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding entry of an order terminating the Company Parties’ process exclusive right to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, file and/or solicit acceptances of a chapter 11 plan or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that seeking the Company Parties receive with entry of an order terminating, annulling, or modifying the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and automatic stay (iii) participate as set forth in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress section 362 of the Company Parties’ efforts Bankruptcy Code) with respect regard to any material asset that, to the development extent such relief was granted, would have a material adverse effect on or delay the consummation of any Alternative the Restructuring ProposalsTransactions;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives extent applicable, object to, and Term Lender Group Representatives not file, any pleading before the Bankruptcy Court seeking entry of an order (i) directing the appointment of an examiner or a trustee, (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or (iv) for relief that (x) would prevent or materially delay the consummation of the Restructuring Transactions or (y) is otherwise inconsistent with regular access to information regarding the operations of CCOHthis Agreement in any material respect;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws laws of the state or other jurisdiction in which they are incorporated or organized, except to the extent that any failure to maintain such Company Party’s good standing arises solely from the filing of the Chapter 11 Cases;
(m) notify the Consenting Stakeholders and counsel to the Consenting Stakeholders in writing (email being sufficient) within three (3) Business Days of the commencement of any material governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened);
(n) except as otherwise expressly set forth in this Agreement or with the express consent of the Required Consenting Term Lenders and Required Consenting ABL Lenders, not to be unreasonably withheld, and subject to the Company Parties’ fiduciary responsibilities and taking into account the commencement of the Chapter 11 Cases, (i) conduct its businesses and operations only in the ordinary course in a manner that is materially consistent with past practices and in compliance with Law, (ii) maintain its physical assets, properties, and facilities in their working order condition and repair as of the Execution Date, in the ordinary course, in a manner that is consistent with past practices, and in compliance with Law (ordinary wear and tear and casualty and condemnation excepted), (iii) maintain its books and records in the ordinary course, in a manner that is materially consistent with past practices, and in compliance with Law, (iv) maintain all insurance policies, or suitable replacements therefor, in full force and effect, in the ordinary course, in a manner that is materially consistent with past practices, and in compliance with Law, and (v) use commercially reasonable efforts to operate their preserve intact its business organizations and relationships with third parties (including creditors, lessors, licensors, suppliers, distributors, and customers) and employees in the ordinary course, taking into account the Restructuring Transactionsin a manner that is consistent in all material respects with past practices, and in compliance with Law; and
(o) refrain from taking any action whatsoevernot seek application of the equitable doctrine of marshaling, except as set forth in this Section 6.01(o)section 506(c) of the Bankruptcy Code, or section 552(b) of the Bankruptcy Code with respect to (i) the Texas Litigation during the Agreement Effective Period; providedTerm Loan Credit Agreement, howeverTerm Loan DIP Facility, that to the extent any deadline, orderTerm Loan Claims, or proceeding requires any party to take any action in claims arising under the Texas Litigation during the Agreement Effective PeriodTerm Loan DIP Facility, or (xii) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadlineABL Credit Agreement, orderPrepetition ABL Facility, ABL DIP Facility, ABL Claims, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingABL DIP Claims.
Appears in 1 contract
Samples: Restructuring Support Agreement (QualTek Services Inc.)
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, each of the Company Parties agree toshall:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;; provided,
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object subject to the efforts of any person seeking to object toconsent rights set forth in Section 3.02 hereof, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(gf) consult with deliver draft copies of all substantive motions, documents, and other pleadings to be filed in the advisors Chapter 11 Cases to the Consenting Stakeholders regarding the implementation of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting Stakeholders, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: practicable, but in no event less than two (i2) Business Days prior to the date when the Company Parties intend to file such documents, and, without limiting any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result consent rights set forth in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with respective counsel to the Term Loan/PGN Group Consenting Stakeholders regarding the form and substance of any such proposed filing, which, in the Term Loan/PGN Group Representatives regarding case of the Sponsors, consultation with respect to the form and substance of any such proposed filing shall relate solely to the Sponsor Consent Right; notwithstanding the foregoing, in the event that not less than two (2) Business Days’ notice is not reasonably practicable under the circumstances, the Company Parties shall deliver draft copies of any such motions, documents, or other pleadings to respective counsel to the Consenting Stakeholders as soon as otherwise reasonably practicable before the date when the Company intends to file any such motion, documents, or other pleading;
(g) provide, and direct their employees, officers, advisors, and other representatives to provide, to the Consenting Creditors, and each of their respective legal and financial advisors
(i) reasonable access to the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect books and records during normal business hours on reasonable advance notice to the Term Loan/PGN Group’s Company Parties’ representatives and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that without disruption to the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress operation of the Company Parties’ efforts business, (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the Consenting Creditors or their respective legal and financial advisors; notwithstanding the foregoing, the Company shall not be required (x) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company, would cause the Company to violate its respective obligations with respect to confidentiality to a third party if the development of any Alternative Restructuring Proposals;
(k) use Company used its commercially reasonable efforts to provide obtain, but failed to obtain, the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access consent of such third party to such inspection or disclosure, (y) to disclose any legally privileged information regarding of the operations of CCOHCompany, or (z) to violate applicable Law;
(lh) use commercially reasonable efforts timely file a formal objection to keep any motion filed with the 2021 Noteholder Group, Bankruptcy Court by a third party seeking the Term Lender Group, and Consenting Sponsors informed entry of any discussions regarding an order (i) directing the development appointment of any Alternative Restructuring Proposal;
a trustee or examiner (m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as with expanded powers beyond those set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (xsections 1106(a)(3) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z4) solely to of the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.Bankruptcy Code),
Appears in 1 contract
Samples: Restructuring Support Agreement
Affirmative Commitments. Except as set forth in Section 7, during the Agreement Effective Period, the Company Parties agree toshall:
(a) support and take all steps reasonably necessary and desirable to confirm the Plan and consummate the Restructuring Transactions in accordance with this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting classapplicable Milestones;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent, including by engaging a proxy solicitor to solicit the Stockholder Approvals;
(1) provide counsel for the BEP Noteholders a reasonable opportunity to review draft copies of all First Day Pleadings, and (2) to the extent reasonably practicable, provide a reasonable opportunity to counsel to any Consenting Parties materially affected by such filing to review draft copies of other documents that the Company Parties intend to file with Bankruptcy Court, as applicable; provided that the Consenting Parties shall have a reasonable opportunity to review each Definitive Document prior to filing with the Bankruptcy Court.
(g) consult with implement and consummate the advisors to the Consenting Stakeholders regarding the implementation Restructuring Transactions in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring Transactions Transactions, as contemplated under this Agreement and the development Transaction Documents; provided that the Company Parties shall not consummate the Out-of-Court Restructuring or the Restructuring Transactions unless and until all of Alternative Restructuring Proposalsthe conditions to the effectiveness thereof set forth herein (including in the Transaction Documents) have been satisfied (or will be satisfied contemporaneously with the consummation of the Out-of-Court Restructuring) or waived with the prior written consent of the BEP Noteholders, Ascend, and the Company Parties, to the extent such party is a signatory thereto or materially adversely affected thereunder, in accordance with Section 12 hereof;
(h) upon reasonable request the approval of the Consenting StakeholdersCompany’s stockholders at the Special Meeting, inform effect the advisors to Charter Amendments by making the necessary filings with the Secretary of State of the State of Delaware;
(A) support and take all reasonable actions necessary or reasonably requested by the Consenting Stakeholders Parties to facilitate the solicitation, confirmation (if applicable), and consummation of the Restructuring Transactions, the Placement, or the Plan, as to: applicable, and the transactions contemplated thereby, and (iB) not take any action directly or indirectly that is inconsistent with, or that would reasonably be expected to prevent, interfere with, delay, or impede the status and progress consummation of the Restructuring Transactions, including progress in relation to the negotiations Placement, the solicitation of votes on the Plan, and the confirmation and consummation of the Definitive Documents; Plan and the Restructuring Transactions, including soliciting or causing or allowing any of its agents or representatives to solicit any agreements relating to any chapter 11 plan or restructuring transaction (including, for the avoidance of doubt, a transaction premised on an asset sale under section 363 of the Bankruptcy Code) other than the Restructuring Transactions, and (iiC) the status of obtaining not, nor encourage any necessary or desirable authorizations (including other person to, take any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminateaction which would, or would result in the termination ofreasonably be expected to, breach or be inconsistent with this Agreement; (ii) any matter Agreement or circumstance which they knowdelay, impede, appeal, or suspect is likelytake any other negative action, directly or indirectly, to be a material impediment to interfere with the acceptance or implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions BEP Noteholders determine, in their sole discretion, to xxxxx and/or stay exercise the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayedBEP Noteholder Option, the Company Parties may take any action necessary to preserve and protect their rights in such proceeding.shall execute the BEP Noteholder Option Subscription Agreement;
Appears in 1 contract
Samples: Restructuring Support Agreement (5E Advanced Materials, Inc.)
Affirmative Commitments. Except as set forth in Section 7this Section 6, during the Agreement Effective Period, the Company Parties agree agrees to:
(a) support use commercially reasonable efforts to support, act in good faith, and take all steps reasonable actions necessary, or reasonably necessary and desirable requested by the applicable Required Consenting Secured Parties, to confirm the Plan implement and consummate the Restructuring Transactions in accordance with as contemplated by this Agreement, including by complying with Section 4 and Section 5 to the extent they hold or otherwise control any Company Claims/Interests and by electing to seek and prosecute confirmation of the Plan over any non-accepting class;
(b) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, support and take all steps reasonably necessary and desirable or requested by the Required Consenting Secured Parties to address any such impediment;
(c) use commercially reasonable efforts to promptly obtain any and all required regulatory consents and regulatory, governmental, and/or third-party approvals that are necessary and/or advisable for the Restructuring implementation or consummation of any part of the Transactions;
(d) use commercially reasonable efforts to actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the timely filing of objections or written responses in a Chapter 11 Case) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Restructuring Transactions;
(e) negotiate in good faith and use commercially reasonable efforts to execute execute, deliver, perform their obligations under, and deliver consummate the transactions contemplated by this Agreement, the other Definitive Documents Documents, and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(fe) cause the Ad Hoc Group Payment to be paid to each member of the Ad Hoc Group as promptly as commercially reasonable following the Closing Date;
(i) use commercially reasonable efforts to seek additional support complete the preparation of each of the Definitive Documents necessary to implement the Transactions under Section 3 by the Transaction Effective Date, (ii) provide each of the Definitive Documents to, and afford reasonable opportunity for comment and review of each of the Restructuring Transactions from their other material stakeholders Definitive Documents by, counsel to the extent reasonably prudentAd Hoc Group (including using commercially reasonable efforts to ensure that counsel to the Ad Hoc Group has at least two Business Days to review such Definitive Documents in advance of any filing, execution, distribution, or use (as applicable) thereof), and (iii) in accordance with Section 3, obtain the written consent (with email from counsel to the Ad Hoc Group being sufficient) of the Required Consenting Secured Parties to the form and substance of each of the Definitive Documents;
(f) promptly notify counsel to the Ad Hoc Group in writing, and in any event within three Business Days after obtaining knowledge thereof, of (i) any breach by the Company and/or any Consenting Secured Party in any respect of any of their respective obligations, representations, warranties, or covenants set forth in this Agreement or (ii) the occurrence of a Termination Event; and
(g) consult with maintain the advisors to the Consenting Stakeholders regarding the implementation good standing and legal existence of the Restructuring Transactions and the development of Alternative Restructuring Proposals;
(h) upon reasonable request of the Consenting StakeholdersCompany, inform the advisors to the Consenting Stakeholders as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(i) inform counsel to the Consenting Stakeholders as soon as reasonably practicable after becoming aware of: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any person in respect of any Company Party; (iv) a breach of this Agreement (including a breach by any Company Party); and (v) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;
(j) (i) consult and coordinate in good faith with the Term Loan/PGN Group and the Term Loan/PGN Group Representatives regarding the Company Parties’ process to solicit, initiate, encourage, induce, negotiate, facilitate, continue, develop, or respond to any Alternative Restructuring Proposals (including with respect to the Term Loan/PGN Group’s and Term Loan/PGN Group Representatives’ involvement and participation in such activities); (ii) promptly share any Alternative Restructuring Proposal that the Company Parties receive with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives unless the proponent of such Alternative Restructuring Proposal requires that such Alternative Restructuring Proposal not be shared with the Term Loan/PGN Group and/or the Term Loan/PGN Group Representatives; and (iii) participate in no less than weekly (and more frequently if the Term Loan/PGN Group Representatives determine it is appropriate) calls with the Term Loan/PGN Group Representatives regarding the status and progress of the Company Parties’ efforts with respect to the development of any Alternative Restructuring Proposals;
(k) use commercially reasonable efforts to provide the Term Loan/PGN Group Representatives and Term Lender Group Representatives with regular access to information regarding the operations of CCOH;
(l) use commercially reasonable efforts to keep the 2021 Noteholder Group, the Term Lender Group, and Consenting Sponsors informed of any discussions regarding the development of any Alternative Restructuring Proposal;
(m) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated it is incorporated, organized or organized;
(n) use commercially reasonable efforts to operate their business in the ordinary course, taking into account the Restructuring Transactions; and
(o) refrain from taking any action whatsoever, except as set forth in this Section 6.01(o), with respect to the Texas Litigation during the Agreement Effective Period; provided, however, that to the extent any deadline, order, or proceeding requires any party to take any action in the Texas Litigation during the Agreement Effective Period, (x) the Company Parties and the Consenting Senior Creditors each hereby agree to immediately seek an extension of such deadline, order, or proceeding; (y) that the Company Parties may file motions to xxxxx and/or stay the Texas Litigation, which motions shall not be opposed by the Consenting Senior Creditors; and (z) solely to the extent such deadline, order, or proceeding has not been extended or stayed or the applicable proceeding has not been abated or stayed, the Company Parties may take any action necessary to preserve and protect their rights in such proceedingformed.
Appears in 1 contract
