Bankruptcy Covenants. (a) Notwithstanding anything herein to the contrary, the Company shall not, and shall cause each of the other Debtors not to, offer, agree to, or seek approval from the Bankruptcy Court for, and shall use their best efforts to object to any request by any other party for, any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition of or investment in any of the Debtors, other than (i) West, (ii) Investor, (iii) any Other Investor, and (iv) any other Person making an investment pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable to such other Person than the terms and conditions provided herein and in the Stockholders Agreement are to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%) of the aggregate amount of financing to be provided by such other Person. (b) Each of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in the Merger Agreement), it shall use its best efforts to cause any order approving the Approved Proposal to prohibit the Debtors (and any Person purporting to act on behalf of the estate of any Debtor) from violating the provisions of Section 4.4(a) of the Merger Agreement or from otherwise pursuing in any way any East Acquisition Proposal (as defined in the Merger Agreement) other than the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its terms. (c) In connection with any proceedings in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal or the transactions contemplated by the Merger Agreement or this Agreement (or any Qualified Competing Plan Proposal (as defined in the Bidding Procedures)) (a) the Company shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of any Debtor as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court and (b) West shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of West as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court. (d) Except in connection with a Qualified Competing Plan Proposal in accordance with the Bidding Procedures, (a) the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, solicit, negotiate or enter into any letter of intent, agreement in principle, term sheet, agreement or other similar arrangement that would be or is intended to be an alternative to, or in lieu of, or to replace any portion of any of the Commercial Agreements. (e) Except in accordance with the Bidding Procedures, the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, (i) solicit, initiate, or take any action designed to induce a proposal or offer for an Alternative Proposal, (ii) participate in any discussions or negotiations regarding any Alternative Proposal, or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Proposal. "Alternative Proposal" means (x) any Alternative Transaction, or proposal therefor, or (y) any proposed investment that would, or is intended to, replace all or a material portion of the investment contemplated by this Agreement.
Appears in 1 contract
Bankruptcy Covenants. (a) Notwithstanding anything herein to the contrarycontrary herein, the Company Borrower shall notnot use any portion or proceeds of the Loans or the Collateral, or disbursements set forth in the Approved Budget, for payments or purposes that would violate the terms of Paragraph 41 (Limitations on Use of DIP Proceeds, Cash Collateral, and shall cause each of the other Debtors not to, offer, agree to, or seek approval from the Bankruptcy Court for, and shall use their best efforts to object to any request by any other party for, any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition of or investment in any of the Debtors, other than (i) West, (ii) Investor, (iii) any Other Investor, and (iv) any other Person making an investment pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable to such other Person than the terms and conditions provided herein and in the Stockholders Agreement are to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%Carve Out) of the aggregate amount Interim Order, and the corresponding paragraph of financing to be provided by such other Personthe Final Order.
(b) Each No Loan Party shall enter into any agreement to return any of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in the Merger Agreement)its Inventory to any of its creditors for application against any Pre-Petition Indebtedness, it shall use its best efforts to cause any order approving the Approved Proposal to prohibit the Debtors (and any Person purporting to act on behalf of the estate of any Debtor) from violating the provisions of Pre-Petition trade payables or other Pre-Petition claims under Section 4.4(a546(c) of the Merger Agreement Bankruptcy Code or from like provision of the BIA (including Section 81 thereof) or allow any creditor to take any setoff or recoupment against any of its Pre-Petition Indebtedness, Pre-Petition trade payables or other Pre-Petition claims based upon any such return pursuant to Section 553(b)(1) of the Bankruptcy Code, the BIA or CCAA or otherwise pursuing in if, after giving effect to any way any East Acquisition Proposal (as defined in such agreement, setoff or recoupment, the Merger Agreement) aggregate amount applied to Pre-Petition Indebtedness, Pre-Petition trade payables and other than Pre-Petition claims subject to all such agreements, setoffs and recoupments since the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its termsPetition Date would exceed $1,000,000.
(c) In connection No Loan Party shall incur, create, assume, suffer to exist or permit any other superpriority administrative or other claim which is pari passu with any proceedings or senior to the claim of the Administrative Agent or the Lenders against the Debtors, except as set forth in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal Order and its terms or the transactions contemplated by the Merger Agreement or this Agreement (or any Qualified Competing Plan Proposal (as defined in the Bidding Procedures)) (a) the Company shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of any Debtor as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court written consent of the Administrative Agent and (b) West shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of West as soon as reasonably practicable prior to filing thereof with the Bankruptcy CourtABL Term Loan Agent.
(d) Except in connection with a Qualified Competing Plan Proposal in accordance with the Bidding ProceduresNo Loan Party shall seek, (a) the Company and West shall notconsent to, and shall not authorize or permit to exist, without the prior written consent of the Administrative Agent and the ABL Term Loan Agent, any order granting authority to take any action that is prohibited by the terms of their Subsidiaries this Agreement, the Orders or the other Loan Documents or refrain from taking any action that is required to be taken by the terms of this Agreement, the Order or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, solicit, negotiate or enter into any letter of intent, agreement in principle, term sheet, agreement or other similar arrangement that would be or is intended to be an alternative to, or in lieu of, or to replace any portion of any of the Commercial AgreementsLoan Documents.
(e) Except in accordance with the Bidding Procedures, the Company and West No Loan Party shall not, and shall not authorize assert any right of subrogation or permit contribution against any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, (i) solicit, initiate, or take any action designed to induce a proposal or offer for an Alternative Proposal, (ii) participate in any discussions or negotiations regarding any Alternative Proposal, or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Proposal. "Alternative Proposal" means (x) any Alternative Transaction, or proposal therefor, or (y) any proposed investment that would, or is intended to, replace all or a material portion of the investment contemplated by this AgreementLoan Party.
Appears in 1 contract
Samples: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Pier 1 Imports Inc/De)
Bankruptcy Covenants. (a) Notwithstanding anything herein to the contrary, the Company shall not, and shall cause each of the other Debtors not to, offer, agree to, or seek approval from the Bankruptcy Court for, and shall use their best efforts to object to any request by any other party for, any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition of or investment in any of the Debtors, other than (i) West, (ii) Investor, (iii) any Other Investor, and (iv) any other Person making an investment pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable to such other Person than the terms and conditions provided herein and in the Stockholders Agreement are to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%) of the aggregate amount of financing to be provided by such other Person.
(b) Each of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in the Merger Agreement), it shall use its best efforts to cause any order approving the Approved Proposal to prohibit the Debtors (and any Person purporting to act on behalf of the estate of any Debtor) from violating the provisions of Section 4.4(a) of the Merger Agreement or from otherwise pursuing in any way any East Acquisition Proposal (as defined in the Merger Agreement) other than the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its terms.
(c) In connection with any proceedings in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal or the transactions contemplated by the Merger Agreement or this Agreement (or any Qualified Competing Plan Proposal (as defined in the Bidding Procedures)) (a) the Company shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of any Debtor as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court and (b) West shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of West as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court.
(d) Except in connection with a Qualified Competing Plan Proposal in accordance with the Bidding Procedures, (a) the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, solicit, negotiate or enter into any letter of intent, agreement in principle, term sheet, agreement or other similar arrangement that would be or is intended to be an alternative to, or in lieu of, or to replace any portion of any of the Commercial Agreements.
(e) Except in accordance with the Bidding Procedures, the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, (i) solicit, initiate, or take any action designed to induce a proposal or offer for an Alternative Proposal, (ii) participate in any discussions or negotiations regarding any Alternative Proposal, or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Proposal. "Alternative Proposal" means (x) any Alternative Transaction, or proposal therefor, or (y) any proposed investment that would, or is intended to, replace all or a material portion of the investment contemplated by this Agreement.
Appears in 1 contract
Bankruptcy Covenants. Prior to the Exit Facility Date, the Debtors will not seek, consent to, or permit to exist any of the following:
(a) Notwithstanding anything herein Any modification, stay, vacation or amendment to the contraryBorrowing Order to which the Administrative Agent has not consented;
(b) A priority claim or administrative expense or unsecured claim against any Debtor (now existing or hereafter arising or any kind or nature whatsoever, the Company shall notincluding, and shall cause each without limitation, any administrative expense of the other Debtors not tokind specified in Sections 105, offer326, agree to330, 331, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), or seek approval from 1114 of the Bankruptcy Court forCode) equal or superior to the priority claim of the Agents and the Lenders in respect of the Obligations, and shall use their best efforts except with respect to object the Carve Out;
(c) Any Lien on any Collateral having a priority equal or superior to any request by any other party for, any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition the Lien of or investment in the Collateral Agent;
(d) Any order which authorizes the return of any of the Debtors' property pursuant to Section 546(g) of the Bankruptcy Code;
(e) Any order seeking authority to take any action that is prohibited by the terms of this Agreement or the other Loan Documents or refrain from taking any action that is required to be taken by the terms of this Agreement or any of the other Loan Documents;
(f) Except as otherwise permitted in Section 7.5 hereof, other than (i) Westany rejection of the Kmart Agreement, or (ii) any rejection, assumption or assignment of any other executory contracts or any unexpired leases which would reasonably be expected to result in a Material Adverse Effect, without the prior written consent of the Administrative Agent;
(g) Any Bankruptcy Plan, unless pursuant thereto, (i) the Obligations are indefeasibly paid in full in cash and the Commitments hereunder are terminated upon the confirmation thereof, (ii) Investorto the extent any of the Credit Extensions are not indefeasibly paid in full in cash and all of the Commitments hereunder are not terminated upon the confirmation thereof, (iii) any Other Investor, all of the Lenders whose Credit Extensions have not been indefeasibly paid in full in cash and (iv) any other Person making an investment pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable whose Commitments have not been terminated shall have consented in writing to such other Person than the terms and conditions provided herein and Bankruptcy Plan in the Stockholders Agreement are advance of its submission to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%) of the aggregate amount of financing to be provided by such other Person.
(b) Each of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in the Merger Agreement), it shall use its best efforts to cause any order approving the Approved Proposal to prohibit the Debtors (and any Person purporting to act on behalf of the estate of any Debtor) from violating the provisions of Section 4.4(a) of the Merger Agreement or from otherwise pursuing in any way any East Acquisition Proposal (as defined in the Merger Agreement) other than the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its terms.
(c) In connection with any proceedings in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal or the transactions contemplated by the Merger Agreement or this Agreement (or any Qualified Competing Plan Proposal (as defined in the Bidding Procedures)) (a) the Company shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of any Debtor as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court and (b) West shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of West as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court.
(d) Except in connection with a Qualified Competing Plan Proposal in accordance with the Bidding Procedures, (a) the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, solicit, negotiate or enter into any letter of intent, agreement in principle, term sheet, agreement or other similar arrangement that would be or is intended to be an alternative to, or in lieu of, or to replace any portion of any of the Commercial Agreements.
(e) Except in accordance with the Bidding Procedures, the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, (i) solicit, initiate, or take any action designed to induce a proposal or offer for an Alternative Proposal, (ii) participate in any discussions or negotiations regarding any Alternative Proposal, or (iii) enter into the Exit Facility Date occurs; or
(h) Any motion, suit, action at law or in equity, other legal proceeding or any letter other action to challenge any rights, liens or claims of intentthe Agent or any Lender or the priority or validity of any Loan made pursuant hereto which motion, agreement suit, action or legal proceeding (other than a motion, suit, action or legal proceeding in principleconnection with, acquisition agreement or other similar agreement related to any Alternative Proposal. "Alternative Proposal" means (x) any Alternative Transactionrelative to, or proposal therefor, or (y) any proposed investment that would, or is intended to, replace all or a material portion arising out of the investment contemplated by this Kmart Agreement) shall not have been discharged, stayed or vacated within 30 days after the commencement thereof.
Appears in 1 contract
Samples: Debt Agreement (Footstar Inc)
Bankruptcy Covenants. The Debtors will not seek, consent to, or permit to exist any of the following:
(a) Notwithstanding anything herein Any modification, stay, vacation or amendment to the contraryBorrowing Order;
(b) A priority claim or administrative expense or unsecured claim against any Debtor (now existing or hereafter arising or any kind or nature whatsoever, the Company shall notincluding, and shall cause each without limitation, any administrative expense of the other Debtors not tokind specified in Sections 105, offer326, agree to330, 331, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), or seek approval from 1114 of the Bankruptcy Court forCode) equal or superior to the priority claim of the Agents and the Lenders in respect of the Obligations, and shall use their best efforts except with respect to object the Carve Out;
(c) Any Lien on any Collateral having a priority equal or superior to any request by any other party for, any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition the Lien of or investment in the Collateral Agent;
(d) Any order which authorizes the return of any of the Debtors, other than (i) West, (ii) Investor, (iii) any Other Investor, and (iv) any other Person making an investment ' property pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable to such other Person than the terms and conditions provided herein and in the Stockholders Agreement are to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%546(g) of the aggregate amount Bankruptcy Code;
(e) Any order seeking authority to take any action that is prohibited by the terms of financing this Agreement or the other Loan Documents or refrain from taking any action that is required to be provided by such other Person.
(b) Each of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in the Merger Agreement), it shall use its best efforts to cause any order approving the Approved Proposal to prohibit the Debtors (and any Person purporting to act on behalf of the estate of any Debtor) from violating the provisions of Section 4.4(a) of the Merger Agreement or from otherwise pursuing in any way any East Acquisition Proposal (as defined in the Merger Agreement) other than the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its terms.
(c) In connection with any proceedings in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal or the transactions contemplated taken by the Merger Agreement or terms of this Agreement (or any Qualified Competing Plan Proposal (as defined in the Bidding Procedures)) (a) the Company shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of any Debtor as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court and (b) West shall provide to Investor copies of all motions, objections, pleadings, notices, proposed orders and other documents that are filed by or on behalf of West as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court.
(d) Except in connection with a Qualified Competing Plan Proposal in accordance with the Bidding Procedures, (a) the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, solicit, negotiate or enter into any letter of intent, agreement in principle, term sheet, agreement or other similar arrangement that would be or is intended to be an alternative to, or in lieu of, or to replace any portion of any of the Commercial Agreements.Loan Documents;
(ef) Except as otherwise permitted in accordance with the Bidding Procedures, the Company and West shall not, and shall not authorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, toSection 7.5 hereof, (i) solicit, initiateany rejection of the Kmart Agreement, or take any action designed to induce a proposal or offer for an Alternative Proposal, (ii) participate any rejection, assumption or assignment of any other executory contracts or any unexpired leases which would reasonably be expected to result in any discussions or negotiations regarding any Alternative Proposala Material Adverse Effect, without the prior written consent of the Administrative Agent;
(g) Any Bankruptcy Plan, unless pursuant thereto, (i) the Obligations are indefeasibly paid in full in cash and the Commitments hereunder are terminated upon the confirmation thereof, or (iiiii) enter into to the extent any letter of intentthe Credit Extensions are not indefeasibly paid in full in cash and all of the Commitments hereunder are not terminated upon the confirmation thereof, agreement all of the Lenders whose Credit Extensions have not been indefeasibly paid in principlefull in cash and whose Commitments have not been terminated shall have consented in writing to such Bankruptcy Plan in advance of its submission to the Bankruptcy Court; or
(h) Any motion, acquisition agreement suit, action at law or in equity, other similar agreement related legal proceeding or any other action to challenge any Alternative Proposal. "Alternative Proposal" means rights, liens or claims of the Agent or any Lender or the priority or validity of any Loan made pursuant hereto which motion, suit, action or legal proceeding (x) any Alternative Transactionother than a motion, suit, action or legal proceeding in connection with, relative to, or proposal therefor, or (y) any proposed investment that would, or is intended to, replace all or a material portion arising out of the investment contemplated by this Kmart Agreement) shall not have been discharged, stayed or vacated within 30 days after the commencement thereof.
Appears in 1 contract
Samples: Credit Agreement (Footstar Inc)
