Commitments of the Company Parties. Commencing on the RSA Effective Date, and for so long as the Termination Date (as defined herein) has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts to: (a) support the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet; (b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet; (c) negotiate and consult in good faith with the TSG Sponsor, the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of the Definitive Documents, and execute and deliver in a timely manner any documents that may be required to effectuate and consummate the Restructuring and Restructuring Transactions; (d) obtain, file, submit or register any and all required governmental, regulatory and third-party approvals that are necessary or advisable for the Restructuring and Restructuring Transactions; (e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employees; (f) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring or Restructuring Transactions, negotiate in good faith appropriate additional or alternative provisions to address any such impediment; (g) subject to the fiduciary obligations of each Company Party and its respective board of directors, board of managers, or similar governing body, take no action that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impede, in any material respect the Restructuring or Restructuring Transactions, this Agreement, the Restructuring Term Sheet or any of the Definitive Documents; (h) comply with any and all obligations of the Company required during the Forbearance Period (as defined in that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as of October 2, 2023 (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to time, the “Forbearance”)), as if such Forbearance Period was in effect; and (i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement
Commitments of the Company Parties. Commencing on During the RSA Effective DatePeriod, subject to the terms of this Agreement (including the terms and for so long as conditions set forth in the Termination Date (as defined hereinRestructuring Term Sheet) has not occurred with respect to such Company Partyand entry of the Approval Order, each Company Party, jointly and severally, agrees agrees, that it shall, and, to use commercially reasonable efforts the extent applicable and subject to section 7.03 hereof, that it shall direct its direct and indirect subsidiaries to:
(ai) support the Restructuring do all things necessary and Restructuring Transactions, as contemplated under proper to seek approval of this Agreement and the Plan, and to complete the Restructuring, including, without limitation, seeking entry of the DIP Order, the Conditional Disclosure Statement Order, the Final Disclosure Statement Order (which will be a standalone order if the Conditional Disclosure Statement Order is not entered, but may be combined with the Confirmation Order if the Conditional Disclosure Statement Order is entered), and the Confirmation Order, (ii) prosecute and defend any appeals relating to the Confirmation Order or otherwise relating to the Restructuring, (iii) negotiate in good faith all Restructuring Term Sheet;
Documents, coordinate its activities with the other Parties hereto (bto the extent practicable and subject to the terms hereof) no later than in respect of all matters concerning the Outside Date, consummate implementation and consummation of the Restructuring and Restructuring Transactions, and take any and all commercially reasonable necessary and appropriate actions in furtherance of this Agreement, (iv) seek to comply with each Case Milestone (as defined below) set forth in this Agreement, and (v) operate its business in the ordinary course, taking into account the Restructuring;
(b) not (i) amend or modify, or file a pleading seeking authority to amend or modify, the Restructuring and Restructuring Transactions, as contemplated under this Agreement and Documents or any other document relating to the Restructuring Term Sheetin a manner that is materially inconsistent with this Agreement, (ii) file or seek authority to file any pleading that is materially inconsistent with the Restructuring or the terms of this Agreement, or (iii) taken any action that is materially inconsistent with, or is intended or is reasonably likely to interfere with, consummation of the Restructuring;
(c) negotiate and consult in good faith timely file a formal objection to any motion filed with the TSG SponsorBankruptcy 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 LCG Sponsor, and Consenting Lenders (who are party Chapter 11 Cases to the applicable Definitive Documents) regarding the terms and conditions cases under chapter 7 of the Definitive DocumentsBankruptcy Code, and execute and deliver (iii) dismissing the Chapter 11 Cases, (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization or (v) for relief that (A) is inconsistent with this Agreement in a timely manner any documents that may material respect or (B) would, or would reasonably be required to effectuate and consummate expected to, frustrate the Restructuring and Restructuring Transactionspurposes of this Agreement, including by preventing the consummation of the Restructuring;
(d) obtain, file, submit or register use commercially reasonable efforts to obtain any and all required governmental, regulatory and third-and/or third party approvals that are necessary or advisable required for the implementation or consummation of the Restructuring and or the approval by the Bankruptcy Court of the Restructuring TransactionsDocuments;
(e) conductprovide reasonably prompt written notice to the Supporting Noteholders between the date hereof and the Effective Date of (i) the occurrence, or failure to occur, of any event of which any Company Party has actual knowledge which occurrence or failure would be likely to cause (A) any covenant of any Company Party 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, (ii) receipt of any notice from any third party alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring, (iii) receipt of any material notice, including from any governmental unit with jurisdiction, of any proceeding commenced, or, to the actual knowledge of any Company Party, threatened against any Company Party, relating to or involving or otherwise affecting in any respect the transactions contemplated by the Restructuring, and cause its subsidiaries (iv) any failure of any Company Party to conductcomply, their businesses and operations only in the ordinary course in a manner that is consistent any material respect, with past practices and in compliance or satisfy any covenant, condition or agreement to be complied with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employeesor satisfied by it hereunder;
(f) provide to the extent any legal or structural impediment arises that would preventSecured Notes Ad Hoc Group and the Unsecured Notes Ad Hoc Group and/or their respective professionals, hinderupon reasonable advance notice to the Company, or delay (i) reasonable access to the consummation respective management and advisors of the Restructuring Company for the purposes of evaluating the Company’s finances and operations and participating in the planning process with respect to the Restructuring, (ii) prompt access to any information provided to any existing or Restructuring Transactions, negotiate in good faith appropriate additional or alternative provisions prospective financing sources (including lenders under any exit financing) and (iii) timely and reasonable responses to address any such impedimentall diligence requests;
(g) subject provide draft copies of all Bankruptcy Pleadings (including all Restructuring Documents) the Company intends to file with the Bankruptcy Court to counsel to the fiduciary obligations of each Secured Notes Ad Hoc Group and counsel to the Unsecured Notes Ad Hoc Group at least two business days prior to the date when any Company Party and its respective board intends to file any such pleading or other document (provided that if delivery of directors, board of managers, such pleading or similar governing body, take no action that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impede, in any material respect other document (other than the Restructuring or Restructuring Transactions, this AgreementPlan, the Restructuring Term Sheet Disclosure Statement, the Confirmation Order or any adequate protection order) at least two business days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing or execution), and consult in good faith with counsel to the Secured Notes Ad Hoc Group and counsel to the Unsecured Notes Ad Hoc Group regarding the form and substance of any such proposed filing with the Bankruptcy Court; and
(h) seek entry of the Approval Order and timely file a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the approval of this Agreement or any of the Definitive Documents;
(h) comply with any and all obligations of the Company required during the Forbearance Period (as defined in that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as of October 2, 2023 (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to time, the “Forbearance”)), as if such Forbearance Period was in effect; and
(i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this Agreementterms contained herein.
Appears in 1 contract
Samples: Restructuring Support Agreement (Bristow Group Inc)
Commitments of the Company Parties. Commencing on During the RSA Effective DatePeriod, subject to the terms of this Agreement (including the terms and for so long as conditions set forth in the Termination Date (as defined herein) has not occurred with respect to such Company PartyRestructuring Term Sheet), each Company Party, jointly and severally, agrees agrees, that it shall, and, to use commercially reasonable efforts the extent applicable and subject to section 7.03 hereof, that it shall direct its direct and indirect subsidiaries to:
(ai) support do all things necessary and proper to seek approval of the Plan and to complete the Restructuring, (ii) prosecute and defend any appeals relating to the Confirmation Order or otherwise relating to the Restructuring, (iii) negotiate in good faith all Restructuring Documents, coordinate its activities with the other Parties hereto (to the extent practicable and subject to the terms hereof) in respect of all matters concerning the implementation and consummation of the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable necessary and appropriate actions in furtherance of this Agreement, (iv) seek to comply with each Case Milestone (as defined below) set forth in this Agreement; and (v) operate its business in the ordinary course, taking into account the Restructuring;
(b) not (i) amend or modify, or file a pleading seeking authority to amend or modify, the Restructuring and Restructuring Transactions, as contemplated under this Agreement and Documents or any other document relating to the Restructuring Term Sheetin a manner that is materially inconsistent with this Agreement, (ii) file or seek authority to file any pleading that is materially inconsistent with the Restructuring or the terms of this Agreement, or (iii) taken any action that is materially inconsistent with, or is intended or is reasonably likely to interfere with, consummation of the Restructuring;
(c) negotiate and consult in good faith timely file a formal objection to any motion filed with the TSG SponsorBankruptcy 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 LCG Sponsor, and Consenting Lenders (who are party Chapter 11 Cases to the applicable Definitive Documents) regarding the terms and conditions cases under chapter 7 of the Definitive DocumentsBankruptcy Code, and execute and deliver (iii) dismissing the Chapter 11 Cases, (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization or (v) for relief that (A) is inconsistent with this Agreement in a timely manner any documents that may material respect or (B) would, or would reasonably be required to effectuate and consummate expected to, frustrate the Restructuring and Restructuring Transactionspurposes of this Agreement, including by preventing the consummation of the Restructuring;
(d) obtain, file, submit seek entry of the Cash Collateral Orders and timely file a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the use of cash collateral or register with respect to any of the adequate protection granted to the Supporting Secured Noteholders pursuant to any Cash Collateral Orders or otherwise;
(e) use commercially reasonable efforts to obtain any and all required governmental, regulatory and third-and/or third party approvals that are necessary or advisable required for the implementation or consummation of the Restructuring and or the approval by the Bankruptcy Court of the Restructuring Transactions;
(e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employeesDocuments;
(f) provide reasonably prompt written notice to the extent any legal or structural impediment arises that would prevent, hinderSupporting Secured Noteholders between the date hereof and the Effective Date of (i) the occurrence, or delay failure to occur, of any event of which any Company Party has actual knowledge which occurrence or failure would be likely to cause (A) any covenant of any Company Party contained in this Agreement not to be satisfied in any material respect or (B) any condition precedent contained in the consummation Plan not to timely occur or become impossible to satisfy, (ii) receipt of any notice from any third party alleging that the Restructuring consent of such party is or Restructuring Transactionsmay be required in connection with the transactions contemplated by the Restructuring, negotiate (iii) receipt of any material notice, including from any governmental unit with jurisdiction, of any proceeding commenced, or, to the actual knowledge of any Company Party, threatened against any Company Party, relating to or involving or otherwise affecting in good faith appropriate additional any respect the transactions contemplated by the Restructuring, and (iv) any failure of any Company Party to comply, in any material respect, with or alternative provisions satisfy any covenant, condition or agreement to address any such impedimentbe complied with or satisfied by it hereunder;
(g) subject provide to the fiduciary obligations of each Company Party Secured Notes Ad Hoc Group and/or their respective professionals, upon reasonable advance notice to the Company, (i) reasonable access to the respective management and its respective board of directors, board of managers, or similar governing body, take no action that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impede, in any material respect the Restructuring or Restructuring Transactions, this Agreement, the Restructuring Term Sheet or any advisors of the Definitive Documents;Company for the purposes of evaluating the Company’s finances and operations and participating in the planning process with respect to the Restructuring, (ii) prompt access to any information provided to any existing or prospective financing sources (including lenders under any exit financing) and (iii) timely and reasonable responses to all diligence requests; and
(h) comply with any provide draft copies of all material motions or applications and other documents (including all obligations of Restructuring Documents) the Company required during intends to file with the Forbearance Period Bankruptcy Court to counsel to the Secured Notes Ad Hoc Group at least two days prior to the date when any Company Party intends to file any such pleading or other document (as defined in provided that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as if delivery of October 2, 2023 such pleading or other document (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to timeother than the Plan, the “Forbearance”)Disclosure Statement, the Confirmation Order or any adequate protection order) at least two days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing), as if such Forbearance Period was and consult in effect; and
(i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer good faith with an identity and scope of engagement, in each case acceptable counsel to the Required Consenting Lenders Secured Notes Ad Hoc Group regarding the form and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board substance of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this Agreementproposed filing with the Bankruptcy Court.
Appears in 1 contract
Samples: Restructuring Support Agreement (Bristow Group Inc)
Commitments of the Company Parties. Commencing on Subject to the RSA Effective Dateterms and conditions of this Agreement, each Company Party agrees that it shall (and for shall cause each of its direct and indirect subsidiaries to), so long as the no Termination Date (as defined herein) Event has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts tooccurred:
(a) support the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable actions necessary to facilitate the implementation and appropriate actions in furtherance consummation of the Restructuring and Restructuring Transactions, as including, without limitation, (i) taking all commercially reasonable actions to support and complete the Transactions and all other commercially reasonable actions contemplated in connection therewith and under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith with the TSG Sponsor, the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of the Definitive Documents, and execute and deliver in a timely manner any documents that may be required (ii) taking all commercially reasonable actions to effectuate and consummate the Restructuring and Restructuring Transactions;
(d) obtain, file, submit or register obtain any and all required governmental, regulatory and and/or third-party approvals that are necessary or advisable consents for the Restructuring implementation and Restructuring Transactions;
(e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employees;
(f) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions and (iii) refraining from taking any actions inconsistent with, and not failing or Restructuring Transactions, negotiate in good faith appropriate additional or alternative provisions omitting to address any such impediment;
(g) subject to the fiduciary obligations of each Company Party and its respective board of directors, board of managers, or similar governing body, take no an action that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impede, in any material respect the Restructuring or Restructuring Transactionsrequired by, this Agreement, the Restructuring Term Sheet Agreement or any of the Definitive Documents;
(hb) comply negotiate in good faith the Definitive Documents with the respective Parties thereto and execute and deliver each Definitive Document to which it is to be a party and consummate the Transactions, in each case as promptly as reasonably practicable; provided that notwithstanding anything to the contrary herein, the Company Parties shall not be required to enter into Definitive Documents on any terms less favorable to any Company Party than those terms contemplated by this Agreement (including the Term Sheet and exhibits and annexes thereto);
(c) promptly provide the Majority Consenting Parties with any documentation or information that is reasonably requested by the Majority Consenting Parties or is reasonably necessary to consummate the Transactions, including “know your customer” and like materials, which documentation and information shall be subject to any confidentiality restrictions to which the Consenting Party may be subject;
(d) promptly pay when due all obligations the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the Ad Hoc Group Advisors in accordance with their respective engagement letters and/or fee letters entered into with the Company required during (if any);
(e) without limiting the Forbearance Period (generality of the foregoing, except as defined in that certain Forbearance and Amendment No. 4 to Credit and Security expressly contemplated by this Agreement, dated as each Company Party shall not (and shall cause each of October 2its direct and indirect subsidiaries not to) between the date of this Agreement and the Closing Date:
(i) declare, 2023 set aside or pay any dividend or other distribution (after giving effect whether in cash, stock or property or any combination thereof) in respect of the capital stock of Lumen, or redeem, repurchase or otherwise acquire or offer to that certain Amendment No. 9 to Credit and Security Agreementredeem, dated December 1, 2023) (as amended, restated, supplementedrepurchase, or otherwise modified from time acquire any shares of Lumen capital stock (other than pursuant to timethe Company Parties’ executive compensation plans or long term incentive plans or the Lumen preferred stock);
(ii) sell, lease or otherwise transfer, or create or incur any lien on, any of the “Forbearance”)Company’s assets, securities, properties, interests or businesses material to the Company Parties, other than as permitted under the Existing Documents;
(iii) make any loans, advances or capital contributions to, or investments in, any other Person material to the Company Parties, other than as permitted under the Existing Documents;
(iv) make any material payment in satisfaction of any Existing Debt other than (x) regularly scheduled payments of interest and principal and (y) in respect of the Existing Lumen Tech Revolving Loans; or
(v) create, incur, assume or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof (other than with respect to the Existing Debt), other than as permitted under the Existing Documents;
(f) except to the extent prohibited by applicable law or confidentiality restrictions, notify the Ad Hoc Group Advisors as promptly as reasonably possible (but in no event later than three (3) Business Days after the applicable occurrence) as to:
(i) the receipt or rejection of any material authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory or regulatory body or any stock exchange that are required for the implementation and consummation of the Transactions;
(ii) any material governmental or third party complaints, litigations, investigations, or hearings that a Company Party has actual knowledge of;
(iii) any event or circumstance that a Company Party has actual knowledge of that has occurred, or that is reasonably likely to occur (and if it did so occur), that would reasonably be expected to result in the termination of this Agreement;
(iv) any notice of any commencement of any involuntary insolvency proceedings of any Company Party, or material legal suit for payment of debt or securement of security from or by any Person in respect of the Company;
(v) any material representation or statement made or deemed to be made by any Company Party under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, to the extent actually known by such Forbearance Period was in effectCompany Party; and
(ivi) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope any material breach of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary any of any Company Party’s material obligations or covenants set forth in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing actually known by such Company Party; and
(g) promptly provide the Ad Hoc Group Advisors, upon reasonable advance notice to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Lawthe Company, timely responses to all reasonable diligence requests and any such action documentation or inaction pursuant information that is reasonably requested in writing by the Ad Hoc Group Advisors for purposes of negotiating, documenting and effectuating the Transactions, subject to this paragraph shall not any confidentiality restrictions to which the Ad Hoc Group Advisors may be deemed to constitute a breach of this Agreementsubject.
Appears in 1 contract
Commitments of the Company Parties. Commencing on During the RSA Effective DatePeriod, subject to the terms of this Agreement (including the terms and for so long as conditions set forth in the Termination Date (as defined hereinRestructuring Term Sheet) has not occurred with respect to such Company Partyand entry of the Approval Order, each Company Party, jointly and severally, agrees agrees, that it shall, and, to use commercially reasonable efforts the extent applicable and subject to section 7.03 hereof, that it shall direct its direct and indirect subsidiaries to:
(ai) support the Restructuring do all things necessary and Restructuring Transactions, as contemplated under proper to seek approval of this Agreement and the Plan, and to complete the Restructuring, including, without limitation, seeking entry of the DIP Order, the Conditional Disclosure Statement Order, the Final Disclosure Statement Order (which will be a standalone order if the Conditional Disclosure Statement Order is not entered, but may be combined with the Confirmation Order if the Conditional Disclosure Statement Order is entered), and the Confirmation Order, (ii) prosecute and defend any appeals relating to the Confirmation Order or otherwise relating to the Restructuring, (iii) negotiate in good faith all Restructuring Term Sheet;
Documents, coordinate its activities with the other Parties hereto (bto the extent practicable and subject to the terms hereof) no later than in respect of all matters concerning the Outside Date, consummate implementation and consummation of the Restructuring and Restructuring Transactions, and take any and all commercially reasonable necessary and appropriate actions in furtherance of this Agreement, (iv) seek to comply with each Case Milestone (as defined below) set forth in this Agreement, and (v) operate its business in the ordinary course, taking into account the Restructuring;
(b) not (i) amend or modify, or file a pleading seeking authority to amend or modify, the Restructuring and Restructuring Transactions, as contemplated under this Agreement and Documents or any other document relating to the Restructuring Term Sheetin a manner that is materially inconsistent with this Agreement, (ii) file or seek authority to file any pleading that is materially inconsistent with the Restructuring or the terms of this Agreement, or (iii) taken any action that is materially inconsistent with, or is intended or is reasonably likely to interfere with, consummation of the Restructuring;
(c) negotiate and consult in good faith timely file a formal objection to any motion filed with the TSG SponsorBankruptcy 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 LCG Sponsor, and Consenting Lenders (who are party Chapter 11 Cases to the applicable Definitive Documents) regarding the terms and conditions cases under chapter 7 of the Definitive DocumentsBankruptcy Code, and execute and deliver (iii) dismissing the Chapter 11 Cases, (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization or (v) for relief that (A) is inconsistent with this Agreement in a timely manner any documents that may material respect or (B) would, or would reasonably be required to effectuate and consummate expected to, frustrate the Restructuring and Restructuring Transactionspurposes of this Agreement, including by preventing the consummation of the Restructuring;
(d) obtain, file, submit seek entry of the Final Cash Collateral Order and timely file a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the use of cash collateral or register with respect to any of the adequate protection granted to the Supporting Secured Noteholders pursuant to any of the Cash Collateral Orders or otherwise;
(e) use commercially reasonable efforts to obtain any and all required governmental, regulatory and third-and/or third party approvals that are necessary or advisable required for the implementation or consummation of the Restructuring and or the approval by the Bankruptcy Court of the Restructuring Transactions;
(e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employeesDocuments;
(f) provide reasonably prompt written notice to the extent any legal or structural impediment arises that would prevent, hinderSupporting Noteholders between the date hereof and the Effective Date of (i) the occurrence, or delay failure to occur, of any event of which any Company Party has actual knowledge which occurrence or failure would be likely to cause (A) any covenant of any Company Party contained in this Agreement not to be satisfied in any material respect or (B) any condition precedent contained in the consummation Plan not to timely occur or become impossible to satisfy, (ii) receipt of any notice from any third party alleging that the Restructuring consent of such party is or Restructuring Transactionsmay be required in connection with the transactions contemplated by the Restructuring, negotiate (iii) receipt of any material notice, including from any governmental unit with jurisdiction, of any proceeding commenced, or, to the actual knowledge of any Company Party, threatened against any Company Party, relating to or involving or otherwise affecting in good faith appropriate additional any respect the transactions contemplated by the Restructuring, and (iv) any failure of any Company Party to comply, in any material respect, with or alternative provisions satisfy any covenant, condition or agreement to address any such impedimentbe complied with or satisfied by it hereunder;
(g) subject provide to the fiduciary obligations of each Company Party Secured Notes Ad Hoc Group and its the Unsecured Notes Ad Hoc Group and/or their respective board of directorsprofessionals, board of managersupon reasonable advance notice to the Company, or similar governing body, take no action that is inconsistent in any material respect with, or that is intended or reasonably likely (i) reasonable access to interfere with, or otherwise delay or impede, in any material respect the Restructuring or Restructuring Transactions, this Agreement, the Restructuring Term Sheet or any respective management and advisors of the Definitive DocumentsCompany for the purposes of evaluating the Company’s finances and operations and participating in the planning process with respect to the Restructuring, (ii) prompt access to any information provided to any existing or prospective financing sources (including lenders under any exit financing) and (iii) timely and reasonable responses to all diligence requests;
(h) comply with any and provide draft copies of all obligations of Bankruptcy Pleadings (including all Restructuring Documents) the Company required during intends to file with the Forbearance Period Bankruptcy Court to counsel to the Secured Notes Ad Hoc Group and counsel to the Unsecured Notes Ad Hoc Group at least two business days prior to the date when any Company Party intends to file any such pleading or other document (as defined in provided that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as if delivery of October 2, 2023 such pleading or other document (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to timeother than the Plan, the “Forbearance”)Disclosure Statement, the Confirmation Order or any adequate protection order) at least two business days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing), as if and consult in good faith with counsel to the Secured Notes Ad Hoc Group and counsel to the Unsecured Notes Ad Hoc Group regarding the form and substance of any such Forbearance Period was in effectproposed filing with the Bankruptcy Court; and
(i) no later than seek entry of the Outside Date, XxxxXx shall appoint Approval Order and timely file a chief restructuring officer formal written response in opposition to any objection filed with an identity and scope of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take Bankruptcy Court by any action or to refrain from taking any action Person with respect to the Restructuring approval of this Agreement or any Restructuring Transaction to of the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this Agreementterms contained herein.
Appears in 1 contract
Samples: Restructuring Support Agreement (Bristow Group Inc)
Commitments of the Company Parties. Commencing on Subject to the RSA Effective Dateterms and conditions of this Agreement, each Company Party agrees that it shall (and for shall cause each of its direct and indirect subsidiaries to), so long as the no Termination Date (as defined herein) Event has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts tooccurred:
(a) support the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable actions necessary to facilitate the implementation and appropriate actions in furtherance consummation of the Restructuring and Restructuring Transactions, as including, without limitation, (i) taking all commercially reasonable actions to support and complete the Transactions and all other commercially reasonable actions contemplated in connection therewith and under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith with the TSG Sponsor, the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of the Definitive Documents, and execute and deliver in a timely manner any documents that may be required (ii) taking all commercially reasonable actions to effectuate and consummate the Restructuring and Restructuring Transactions;
(d) obtain, file, submit or register obtain any and all required governmental, regulatory and and/or third-party approvals that are necessary or advisable consents for the Restructuring implementation and Restructuring Transactions;
(e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employees;
(f) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions and (iii) refraining from taking any actions inconsistent with, and not failing or Restructuring Transactions, negotiate in good faith appropriate additional or alternative provisions omitting to address any such impediment;
(g) subject to the fiduciary obligations of each Company Party and its respective board of directors, board of managers, or similar governing body, take no an action that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impede, in any material respect the Restructuring or Restructuring Transactionsrequired by, this Agreement, the Restructuring Term Sheet Agreement or any of the Definitive Documents;
(hb) comply negotiate in good faith the Definitive Documents with the respective Parties thereto and execute and deliver each Definitive Document to which it is to be a party and consummate the Transactions, in each case as promptly as reasonably practicable; provided that notwithstanding anything to the contrary herein, the Company Parties shall not be required to enter into Definitive Documents on any terms less favorable to any Company Party than those terms contemplated by this Agreement (including the Term Sheet and exhibits and annexes thereto);
(c) using reasonable best efforts to close the Transactions by no later than February 15, 2024, or as soon as reasonably practicable thereafter;
(d) promptly provide the Majority Consenting Parties, the Majority Consenting Lumen Tech Revolving Lenders and the Majority Specified Lumen Tech Consenting Parties, with any documentation or information that is reasonably requested by the Majority Consenting Parties, Majority Consenting Lumen Tech Revolving Lenders or Majority Specified Lumen Tech Consenting Parties, as applicable, or is reasonably necessary to consummate the Transactions, including “know your customer” and like materials, which documentation and information shall be subject to any confidentiality restrictions to which the Consenting Party may be subject;
(e) promptly pay when due all obligations the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the Ad Hoc Group Advisors, Existing Lumen Tech Revolving Lender Advisors and the Specified Lumen Tech Consenting Parties Advisors, in accordance with their respective engagement letters, fee reimbursement letters and/or fee letters entered into with the Company required during (if any) or the Forbearance Period Existing Lumen Tech Credit Agreement (without duplication);
(f) without limiting the generality of the foregoing, except as defined in that certain Forbearance and Amendment No. 4 to Credit and Security expressly contemplated by this Agreement, dated as each Company Party shall not (and shall cause each of October 2its direct and indirect subsidiaries not to) between the date of this Agreement and the Closing Date:
(i) declare, 2023 set aside or pay any dividend or other distribution (after giving effect whether in cash, stock or property or any combination thereof) in respect of the capital stock of Lumen, or redeem, repurchase or otherwise acquire or offer to that certain Amendment No. 9 to Credit and Security Agreementredeem, dated December 1, 2023) (as amended, restated, supplementedrepurchase, or otherwise modified from time acquire any shares of Lumen capital stock (other than pursuant to timethe Company Parties’ executive compensation plans or long term incentive plans or the Lumen preferred stock);
(ii) sell, lease or otherwise transfer, or create or incur any lien on, any of the “Forbearance”)Company’s assets, securities, properties, interests or businesses material to the Company Parties, other than as permitted under the Existing Documents;
(iii) make any loans, advances or capital contributions to, or investments in, any other Person material to the Company Parties, other than as permitted under the Existing Documents;
(iv) make any material payment in satisfaction of any Existing Debt other than (x) regularly scheduled payments of interest and principal and (y) in respect of the revolving loans or reimbursement of letters of credit under the Existing Lumen Tech Credit Agreement; or
(v) create, incur, assume or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof (other than with respect to the Existing Debt), other than as permitted under the Existing Documents;
(g) except to the extent prohibited by applicable law or confidentiality restrictions, notify the Ad Hoc Group Advisors, Existing Lumen Tech Revolving Lender Advisors and Specified Lumen Tech Consenting Parties Advisors as promptly as reasonably possible (but in no event later than three (3) Business Days after the applicable occurrence) as to:
(i) the receipt or rejection of any material authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory or regulatory body or any stock exchange that are required for the implementation and consummation of the Transactions;
(ii) any material governmental or third party complaints, litigations, investigations, or hearings that a Company Party has actual knowledge of;
(iii) any event or circumstance that a Company Party has actual knowledge of that has occurred, or that is reasonably likely to occur (and if it did so occur), that would reasonably be expected to result in the termination of this Agreement and/or any Consenting Parties Termination Event;
(iv) any notice of any commencement of any involuntary insolvency proceedings of any Company Party, or material legal suit for payment of debt or securement of security from or by any Person in respect of the Company;
(v) any material representation or statement made or deemed to be made by any Company Party under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, to the extent actually known by such Forbearance Period was in effectCompany Party; and
(ivi) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope any material breach of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary any of any Company Party’s material obligations or covenants set forth in this Agreement, nothing to the extent actually known by such Company Party; and
(h) promptly provide the Ad Hoc Group Advisors, the Existing Lumen Tech Revolving Lender Advisors and the Specified Lumen Tech Consenting Parties Advisors, upon reasonable advance notice to the Company, timely responses to all reasonable diligence requests and any documentation or information that is reasonably requested in writing by the Ad Hoc Group Advisors, the Existing Lumen Tech Revolving Lender Advisors or the Specified Lumen Tech Consenting Parties Advisors, for purposes of negotiating, documenting and effectuating the Transactions, subject to any confidentiality restrictions to which the Ad Hoc Group Advisors or the Existing Lumen Tech Revolving Lender Advisors, may be subject.
(i) notwithstanding the provisions of Section 28 hereof, allow Lumen Tech Revolving Lenders Trading Desks set forth on Schedule 1 hereto to become party to this Agreement shall require as Consenting Lumen Tech Revolving Lenders Trading Desks during the period commencing on the Public Disclosure (as defined below) and ending ten (10) Business Days thereafter, and in the event that a Company Party does not allow a Lumen Tech Revolving Lender Trading Desk to become a party to this Agreement, then the Consenting Lumen Tech Revolving Lender associated with such Lumen Tech Revolving Lender Trading Desk shall have the right upon five (5) Business Days’ notice to terminate this Agreement as to itself to extent not cured by the Company in such notice period.
(j) notwithstanding the provisions of Section 28 hereof, allow the holders of Existing Lumen Tech Term A/A-1 Loans, Existing Lumen Tech Senior Secured Notes, Existing Lumen Tech Term B Loans, and Existing Level 3 Term Loans (x) that are represented by Xxxxxx Xxxx and Evercore and (y) with holdings as set forth the schedule provided by Xxxxxx Xxxx and Evercore to Lumen on January 21, 2024, to become party to this Agreement as Specified Lumen Tech Consenting Parties; provided that notes held thereby will not be permitted to participate in the Level 3 Senior Unsecured Notes Transaction, the Level 3 2029 Exchange, the Level 3 2030 Exchange, the Lumen Tech Secured Exchange, or the board of directors, board of managers, or similar governing body of a Lumen Tech Unsecured Notes Transaction unless consented to by the Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take such action would be inconsistent with applicable Law or in its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this Agreementsole discretion.
Appears in 1 contract
Commitments of the Company Parties. Commencing on the RSA Effective Date, and for so long as the Termination Date (as defined herein) has not occurred with respect Subject to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts to:
(a) support the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith with the TSG Sponsor, the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of this Agreement, each Company Party agrees that it shall (and shall cause each of its direct and indirect subsidiaries to), subject to the immediately following sentence hereof, so long as no Termination Event has occurred: (a) support and take all commercially reasonable actions necessary or reasonably requested by the Majority Consenting Term Lenders to facilitate the implementation and consummation of the Transactions, including, without limitation, (i) taking all actions to support and complete the Transactions and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) obtaining any and all required or advisable governmental, regulatory, and/or third-party approvals or consents for the implementation and consummation of the Transactions, (iii) refraining from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents, and execute and deliver (iv) seeking additional support for the Transactions to the extent reasonably prudent; provided that no other provision of this Agreement withstanding, the Parties shall work together in a timely manner any documents that may be required good faith to effectuate structure and consummate the Restructuring Transactions in a tax efficient manner for the Company Parties and Restructuring Transactions;the Consenting Term Lenders, and such structure and consummation shall be shall be subject to the consent (not to be unreasonably withheld, conditioned, or delayed) of the Majority Consenting Term Lenders; (b)
(di) obtainnot directly or indirectly negotiate, fileenter into, submit issue, incur, arrange, participate in, or register consent to any and all required governmentalcredit facility, regulatory and third-party approvals that are necessary bond issuance, or advisable for the Restructuring and Restructuring Transactions;
other financing, rights offering, or issuance of debt or equity securities or (eii) conductundertake or otherwise support or participate in any reorganization, and cause its subsidiaries to conductmerger, their businesses and operations only consolidation, business combination, or other recapitalization or debt restructuring (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transactions; (c) by the Closing Date, enter into the Existing Revolving Credit Agreement Amendment; (d) on the Closing Date (i) effectuate the Term Loan Exchange in accordance with the provisions of this Agreement and enter into the Existing Term Loan Credit Agreement Amendment and the Warrant Purchase Agreement and issue and deliver the Warrants and (ii) deliver a legal opinion of outside counsel to the Company, addressed to the Consenting Term Lenders, in a manner that is form and substance reasonably acceptable to the Consenting Term Lenders and customary for the issuance of warrants to purchase common equity; (e) not purchase or exchange, or offer to purchase or exchange, any Existing Term Loans, or solicit consents to any amendments, modifications, or supplements to the Existing Term Loan Credit Agreement or any related guarantees, security documents, intercreditor agreements, or ancillary documents (other than, in each case, as contemplated by this Agreement); -00- xxxxxx, xxxxxxxxxx, or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Party securities; (iv) issue, deliver, or sell, or authorize the issuance, delivery, or sale, of any Company Party securities, repurchase, redeem, or retire any Company Party securities, or amend any term of any Company Party securities (in each case, whether by merger, consolidation, or otherwise) other than ordinary course transactions relating to the Company’s employee stock plans; (v) acquire (by merger, consolidation, acquisition of stock or assets, or otherwise), directly or indirectly, any assets, securities, properties, interests, or businesses, other than in the ordinary course of business consistent with past practices and in compliance with Lawpractice; (vi) sell, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employees;
(f) to the extent any legal or structural impediment arises that would prevent, hinderlease, or delay the consummation otherwise transfer, or create or incur any lien on, any of the Restructuring or Restructuring TransactionsCompany’s assets, negotiate in good faith appropriate additional or alternative provisions to address any such impediment;
(g) subject to the fiduciary obligations of each Company Party and its respective board of directorssecurities, board of managersproperties, interests, or similar governing bodybusinesses, take no action other than in the ordinary course of business consistent with past practice; (vii) make any loans, advances, or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (viii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal; (ix) create, incur, assume, suffer to exist, or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof (other than under the Existing Term Loan Credit Agreement and the Existing Revolving Credit Agreement), other than in the ordinary course of business consistent with past practice; (x) enter into any agreement or arrangement that is inconsistent limits or otherwise restricts in any material respect withit or any of its Affiliates or any successor thereto or that could, after the Closing Date, limit or restrict in any material respect it or any of its Affiliates, from engaging or competing in any line of business, in any location, or with any Person; or (xi) enter into any agreement or arrangement that waives, releases, or assigns, or modifies in any material respect, any of its material rights, claims, or benefits; (k) notify the Ad Hoc Group Advisors as promptly as reasonably possible (but in no event later than one (1) Business Day after the applicable occurrence) of: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) any material changes to the status and progress of the Transactions; (iii) any material changes to 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; (iv) any material governmental or third-party complaints, litigations, investigations, or hearings; (v) any event or circumstance that has occurred, or that is intended or reasonably likely to interfere withoccur (and if it did so occur), that would permit any Party to terminate, or otherwise delay or impede, could reasonably be expected to result in any material respect the Restructuring or Restructuring Transactionstermination of, this Agreement, the Restructuring Term Sheet ; (vi) any matter or any of the Definitive Documents;
(h) comply with any and all obligations of the Company required during the Forbearance Period (as defined in circumstance that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as of October 2, 2023 (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, constitutes or otherwise modified from time to time, the “Forbearance”)), as if such Forbearance Period was in effect; and
(i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take such action would could reasonably be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed expected to constitute a breach material impediment to the implementation or consummation of this Agreement.the Transactions; (vii) any notice of any commencement of
Appears in 1 contract
Samples: Transaction Support Agreement (Altisource Portfolio Solutions S.A.)
Commitments of the Company Parties. Commencing on Subject to the RSA Effective Dateterms and conditions of this Agreement, each Company Party agrees that it shall (and for shall cause each of its direct and indirect subsidiaries to), so long as the no Termination Date (as defined herein) Event has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts tooccurred:
(a) support the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable actions necessary to facilitate the implementation and appropriate actions in furtherance consummation of the Restructuring and Restructuring Transactions, as including, without limitation, (i) taking all actions to support and complete the Transactions and all other actions contemplated in connection therewith and under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith with the TSG Sponsor, the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of the Definitive Documents, and execute and deliver in a timely manner any documents that may be required to effectuate and consummate the Restructuring and Restructuring Transactions;
(dii) obtain, file, submit or register obtaining any and all required governmental, regulatory and and/or third-party approvals that are necessary or advisable consents for the Restructuring implementation and Restructuring consummation of the Transactions, (iii) refraining from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents, and (iv) seeking additional support for the Transactions to the extent reasonably prudent;
(b) (i) not directly or indirectly negotiate, enter into, issue, incur, arrange, participate in or consent to any credit facility, bond issuance or other financing, rights offering or issuance of debt or equity securities or (ii) undertake or otherwise support or participate in any reorganization, merger, consolidation, business combination or other recapitalization or debt restructuring (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transactions;
(c) on the Closing Date, effectuate the Revolver Exchange in accordance with the provisions of this Agreement;
(d) on the Closing Date, effectuate the Term Loan Exchange in accordance with the provisions of this Agreement, and enter into the Existing Credit Agreement Amendment;
(e) conducton or prior to the Commencement Date, distribute the documents for the 2025 Consent Solicitation to the holders of the 2025 Notes in accordance with the provisions of the related consent solicitation statements, this Agreement and applicable requirements of the Securities Act, the Exchange Act, and cause its subsidiaries to conductthe rules and regulations of the SEC thereunder and, their businesses and operations only in on the ordinary course in a manner that is consistent with past practices and in compliance with LawClosing Date, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employeesenter into the 2025 Supplemental Indentures;
(f) on or prior to the Commencement Date, distribute the documents for the 2024 Consent Solicitation and Exchange Offer to the holders of the 2024 Notes and, on the Closing Date, (i) issue, in exchange for the tendered 2024 Notes, the New 2L Notes and the Warrants (as defined in the Term Sheet), and to cancel such tendered 2024 Notes, and (ii) enter into the 2024 Supplemental Indenture, in each case in accordance with the provisions of this Agreement, the 2024 Offering Memorandum and applicable requirements of the Securities Act, the Exchange Act, and the rules and regulations of the SEC thereunder;
(g) not purchase or exchange, or offer to purchase or exchange, any Existing Debt, or solicit consents to any material amendments, modifications or supplements to the Existing Documents (other than an amendment to, or waiver of, a financial or reporting covenant included in the Existing Credit Agreement, unless such amendment or waiver requires the Company to provide value in exchange for such amendment or waiver that is not acceptable to the Majority Consenting Parties) or any related guarantees, security documents, intercreditor agreements or ancillary documents (other than, in each case, as contemplated by this Agreement);
(h) negotiate in good faith the Definitive Documents with the respective Parties thereto and execute and deliver each Definitive Document to which it is to be a party and consummate the Transactions, in each case as promptly as reasonably practicable;
(i) promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions, including “know your customer” and like materials, which documentation and information shall be subject to any confidentiality restrictions to which the Consenting Party may be subject;
(j) (i) no later than five (5) Business Days following the date hereof, the Company Parties shall pay all invoiced unpaid fees, costs, and out-of-pocket expenses of the Advisors; and (ii) promptly pay when due all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the Advisors in accordance with their respective engagement letters and/or fee letters entered into with the Company (if any);3
(k) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring or Restructuring Transactions, negotiate support and take all steps reasonably necessary or desirable to address any such impediment, including notifying the Advisors of any material governmental or third-party complaints, litigations, investigations or hearings related to the Transactions;
(l) 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 present 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, (iii) preserve relationships with its customers, suppliers and others having material business relationships with it, and (iv) maintain its good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by 3 Including, for the avoidance of doubt, payment of reasonable and documented and invoiced fees, costs, and out of pocket expenses of local counsel submitted in connection with the fee letters with respect to Xxxxx Xxxx or Xxxxxx Xxxx. this Agreement, each Company Party shall not (and shall cause each of its direct and indirect subsidiaries not to):
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of any Company Party or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of any Company Party, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Party securities (other than pursuant to an agreement in effect as of the date hereof pursuant to the Company Parties’ executive compensation plans);
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any Company Party securities or amend any term of any Company Party security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business substantially consistent with past practice and permitted under the Existing Documents;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business, consistent with past practice and permitted under the Existing Documents;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business substantially consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof (other than with respect to the Existing Debt), other than in the ordinary course of business substantially consistent with past practice and permitted under the Existing Documents;
(ix) seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to, any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interests, notify the Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the Person or group of Persons involved in making such proposal;
(x) enter into any agreement or arrangement that limits or otherwise restricts in any material respect it or any of its Affiliates or any successor thereto or that could, after the Closing Date, limit or restrict in any material respect it or any of its Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(xi) enter into any agreement or arrangement that waives, releases or assigns, or modifies in any material respect, any of its material rights, claims or benefits, other than in the ordinary course of business substantially consistent with past practice;
(m) notify the Advisors as promptly as reasonably possible (but in no event later than two (2) Business Days after the applicable occurrence) as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties (taken as a whole); (ii) the status and progress of the Transactions, including any material changes thereto; (iii) the receipt or rejection of any material authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory or regulatory body or any stock exchange that are required for the implementation and consummation of the Transactions; (iv) any material governmental or third-party complaints, litigations, investigations or hearings; (v) any notice of any commencement of any involuntary insolvency proceedings of the Company or any of its Affiliates, or material legal suit for payment of debt or securement of security from or by any Person in respect of the Company; (vi) any material representation or statement made or deemed to be made by them 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 (vii) any breach of any of its obligations or covenants set forth in this Agreement;
(n) not (i) form, designate, acquire or otherwise create an “Unrestricted Subsidiary” (as defined in the Existing Documents) or (ii) enter into any transaction with (including by selling or transferring property or assets to, or purchasing or acquiring property or assets from) any “Unrestricted Subsidiary”;
(o) promptly provide the Advisors, upon reasonable advance notice to the Company, timely responses to all reasonable diligence requests and any documentation or information that is reasonably requested by the Advisors for purposes of negotiating, documenting and effectuating the Transactions, subject to any confidentiality restrictions to which the Advisors may be subject; provided that the foregoing shall not require the disclosure of any legally privileged document or information of any Company Party; and
(p) to the extent any legal or structural impediments arise that would prevent, hinder, or delay the consummation of the Transactions, negotiate, subject to applicable laws and regulations, in good faith appropriate additional or alternative provisions to address any such impediment;
(g) subject to the fiduciary obligations of each Company Party and its respective board of directors, board of managers, or similar governing body, take no action impediments; provided that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impedesuch alternative does not alter, in any material respect the Restructuring or Restructuring Transactions, this Agreementrespect, the Restructuring Term Sheet or any substance and economics of the Definitive Documents;
(h) comply with any and all obligations of Transactions. Notwithstanding the Company required during foregoing or anything in this Agreement to the Forbearance Period (as defined in that certain Forbearance and Amendment No. 4 to Credit and Security Agreementcontrary, dated as of October 2, 2023 (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to time, the “Forbearance”)), as if such Forbearance Period was in effect; and
(i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a limit the rights, power or ability of the Company Party Parties to seek, solicit, support, formulate, entertain, encourage, engage, negotiate, participate in any inquiries or the board of directors, board of managersdiscussions concerning, or similar governing body enter into any agreements relating to, any Strategic Transaction, excluding, for the avoidance of doubt, consummating or entering into a Company Partybinding agreement to consummate a Strategic Transaction, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take and (ii) no such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Transaction Support Agreement (DIEBOLD NIXDORF, Inc)
Commitments of the Company Parties. Commencing on Subject to the RSA Effective Dateterms and conditions of this Agreement and the Election Procedures (if any), each Company Party agrees that it shall (and for shall cause each of its direct and indirect subsidiaries to), subject to the immediately following sentence hereof, so long as the no Termination Date (as defined herein) Event has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts tooccurred:
(a) support and take all commercially reasonable actions necessary or reasonably requested by the Restructuring Required Consenting Lenders to facilitate the implementation and Restructuring consummation of the Transactions, as including, without limitation, (i) taking all actions to support and complete the Transactions and all other actions contemplated in connection therewith and under the Term Sheet and the Definitive Documents, (ii) obtaining any and all required or advisable governmental, regulatory, and/or third-party approvals or consents for the implementation and consummation of the Transactions, and (iii) refraining from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents, and (iv) seeking additional support for the Transactions to the extent reasonably prudent; provided that no other provision of this Agreement withstanding, the Parties shall work together in good faith to structure and consummate the Transactions in a tax efficient manner for the Company Parties and the Restructuring Consenting Term SheetLenders, and such structure and consummation shall be shall be subject to the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Consenting Lenders;
(b) no later not (i) directly or indirectly negotiate, enter into, issue, incur, arrange, participate in, or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities or (ii) undertake or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring (whether through a judicial process or otherwise) other than in the Outside Date, consummate ordinary course of business or in connection with the Restructuring and Restructuring Transactions, and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith file a registration statement with the TSG Sponsor, SEC registering the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions issuance of the Definitive Documents, and execute and deliver in a timely manner any documents that Shareholder Warrant Shares under the Securities Act (the “Shareholder Warrant Shares Registration Statement”) with the SEC within forty-five (45) days after the Agreement Effective Date (or such later date as may be required to effectuate and consummate agreed by the Restructuring and Restructuring Transactions;
(dRequired Consenting Lenders) obtain, file, submit or register any and all required governmental, regulatory and third-party approvals that are necessary or advisable for the Restructuring and Restructuring Transactions;
(e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization cause the Shareholder Warrant Shares Registration Statement to become effective on or prior to the Closing Date;
(d) on the Closing Date, (i) effectuate the Term Loan Exchange in accordance with the provisions of this Agreement and relationships enter into the Existing Term Loan Credit Agreement Amendment, the Exchange Agreement and the other agreements contemplated by the Transactions, (ii) issue and deliver the Securities, in accordance with third parties the Exchange Agreement and employees(iii) issue and deliver the Shareholder Warrants; provided, however, that the Shareholder Warrants shall not be exercisable unless the Shareholder Warrant Shares Registration Statement is effective or the exercise of the Shareholder Warrants is exempt from the registration provisions of the Securities Act in the opinion of Company counsel;
(e) on the Closing Date deliver a legal opinion of outside counsel to the Company, addressed to the Consenting Term Lenders, in a form and substance reasonably acceptable to the Consenting Term Lenders and customary for the issuance and delivery of shares of common stock;
(f) not purchase or exchange, or offer to purchase or exchange, any Existing Term Loans, or solicit consents to any amendments, modifications, or supplements to the Existing Term Loan Credit Agreement or any related guarantees, security documents, intercreditor agreements, or ancillary documents (other than, in each case, as contemplated by this Agreement, the Term Sheet or any Definitive Document); #99449566v26
(g) negotiate in good faith the Definitive Documents with the respective Parties thereto and execute and deliver each Definitive Document to which it is to be a party and consummate the Transactions, in each case as promptly as reasonably practicable;
(h) promptly provide a Consenting Term Lender with any documentation or information that is reasonably requested by such Consenting Term Lender or is reasonably necessary to consummate the Transactions, including “know your customer” and like materials, which documentation and information shall be subject to any confidentiality restrictions to which the Consenting Term Lender may be subject;
(i) pay all reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the Ad Hoc Group Advisors, as provided in and in accordance with their respective engagement letters and/or fee letters; provided that all accrued and unpaid reasonable and documented fees, costs and out-of-pocket expenses of the Ad Hoc Group Advisors shall be due on the Termination Date and paid by the earlier of (a) the Closing Date and (ii) within fifteen (15) Business Days of the Termination Date;
(j) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring or Restructuring Transactions, negotiate support and take all steps reasonably necessary or desirable to address any such impediment, including notifying the Ad Hoc Group Advisors of any material governmental or third-party complaints, litigations, investigations, or hearings related to the Transactions;
(k) conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its commercially reasonable efforts (consistent with its sound business judgment) to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state, and local licenses, permits, consents, franchises, approvals, and authorizations required to operate its business, (iii) keep available the services of its directors, officers, and key employees, (iv) preserve relationships with its customers, suppliers, and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice, (vi) remain in compliance with the terms of the Existing Term Loan Credit Agreement, and (vii) maintain its good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Term Sheet or any Definitive Document, each Company Party shall not (and shall cause each of its direct and indirect subsidiaries not to):
(i) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Consenting Lenders, amend its articles of incorporation, bylaws, or other similar organizational documents (whether by merger, consolidation, or otherwise), except as in connection with the Transactions contemplated by this Agreement;
(ii) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Consenting Lenders, take any action or inaction that would cause a change to the tax status of any Company Party;
(iii) split, combine, or reclassify any shares of capital stock of any Company Party (other than as described in the Proxy Statement) or declare, set aside, or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of the capital stock of any Company Party (other than the issuance of the Shareholder Warrants #99449566v26 as contemplated by the Term Sheet), or redeem, repurchase, or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Party securities;
(iv) issue, deliver, or sell, or authorize the issuance, delivery, or sale, of any Company Party securities, repurchase, redeem, or retire any Company Party securities, or amend any term of any Company Party securities (in each case, whether by merger, consolidation, or otherwise) other than ordinary course transactions relating to the Company’s employee stock plans or stock issued to the Company’s management in lieu of compensation pursuant to plans in place as of the Agreement Effective Date, or as otherwise contemplated by this Agreement, the Term Sheet or any Definitive Document;
(v) acquire (by merger, consolidation, acquisition of stock or assets, or otherwise), directly or indirectly, any assets, securities, properties, interests, or businesses, other than in the ordinary course of business consistent with past practice;
(vi) sell, lease, or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests, or businesses, other than in the ordinary course of business consistent with past practice;
(vii) make any loans, advances, or capital contributions to, or investments in, any other Person, collectively, in excess of $1,000,000 (one million dollars) in the aggregate, other than in the ordinary course of business consistent with past practice;
(viii) make any payment in satisfaction of any existing funded indebtedness, collectively, in excess of $3,000,000 (three million dollars) in the aggregate other than regularly scheduled payments of interest and principal; provided, that, (A) for the avoidance of doubt payments of revolving debt that is reborrowed and subsequently repaid shall be counted as single repayment for the purposes of calculating the aggregate amount repaid under this section and (B) each Company Party shall not (and shall cause each of its direct and indirect subsidiaries not to) make any payment in satisfaction of the Existing Term Loans, other than regularly scheduled payments of interest and principal or other payments required by the Existing Term Loan Documents;
(ix) create, incur, assume, suffer to exist, or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof with a principal balance, collectively, in excess of $3,000,000 (three million dollars) in the aggregate (other than under the Existing Term Loan Credit Agreement and the Existing Revolving Credit Agreement), other than in the ordinary course of business consistent with past practice; or
(x) enter into any agreement or arrangement that limits or otherwise restricts in any material respect it or any of its Affiliates or any successor thereto or that could, after the Closing Date, limit or restrict in any material respect it or any of its Affiliates, from engaging or competing in any line of business, in any location or with any Person;
(l) notify the Ad Hoc Group Advisors as promptly as reasonably possible (but in no event later than one (1) Business Day after the applicable occurrence) of: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) any material changes to the status and progress of the Transactions; (iii) any material changes to 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 (including any correspondence with the SEC related to the Transactions); (iv) any material governmental or third-party complaints, litigations, investigations, or hearings; (v) any event or circumstance that has occurred, or that is reasonably #99449566v26 likely to occur (and if it did so occur), that would permit any Party to terminate, or could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transactions; (vii) any notice of any commencement of any involuntary insolvency proceedings of the Company or any of its Affiliates, or material legal suit for payment of debt or securement of security from or by any Person in respect of the Company; (viii) any representation or statement made or deemed to be made by them 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 (ix) any breach of any of its obligations or covenants set forth in this Agreement;
(m) not (i) form, designate, acquire, or otherwise create an “Excluded Subsidiary” (as defined in the Existing Term Loan Credit Agreement), or (ii) enter into any transaction with (including by selling or transferring property or assets to, or purchasing or acquiring property or assets from) any “Excluded Subsidiary”;
(n) promptly provide the Ad Hoc Group Advisors timely responses to all reasonable diligence requests and any documentation or information requested by the Required Consenting Lenders for purposes of negotiating, documenting, and effectuating the Transactions, subject to any confidentiality restrictions applicable to which the Ad Hoc Group Advisors; and
(o) to the extent any legal or structural impediments arise that would prevent, hinder, or delay the consummation of the Transactions, negotiate, subject to applicable laws and regulations, in good faith appropriate additional or alternative provisions to address any such impediment;
(g) subject to the fiduciary obligations of each Company Party and its respective board of directors, board of managers, or similar governing body, take no action impediments; provided that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impedesuch alternative does not alter, in any material respect the Restructuring or Restructuring Transactions, this Agreementrespect, the Restructuring Term Sheet or any substance and economics of the Definitive Documents;
(h) comply with any and all obligations of the Company required during the Forbearance Period (as defined in that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as of October 2, 2023 (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to time, the “Forbearance”)), as if such Forbearance Period was in effect; and
(i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope of engagement, in each case acceptable to the Required Consenting Lenders and the CompanyTransactions. Notwithstanding anything to the contrary in this Agreementforegoing, nothing in this Agreement shall require a prohibits the Company Party from (i) raising equity capital for purposes as contemplated in the Term Sheet and on commercially reasonable terms or (ii) raising equity capital as consideration for the board entry into new commercial arrangements in the ordinary course of directorsbusiness and consistent with past practice, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect in each case subject to the Restructuring or any Restructuring Transaction to prior written consent of the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this AgreementRequired Consenting Lenders.
Appears in 1 contract
Samples: Transaction Support Agreement (Altisource Portfolio Solutions S.A.)
Commitments of the Company Parties. Commencing on the RSA Effective Date, and for so long as the Termination Date (as defined hereinbelow) has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts to:
(a) use commercially reasonable efforts to support the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(b) use its commercially reasonable efforts to implement and, within five (5) Business Days after the occurrence of an Event of Default and no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith with the TSG SponsorConsenting Noteholders and the Revolver Lenders, the LCG Sponsoras applicable, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of the Definitive Documents, and execute and deliver in a timely manner any documents that may be required to effectuate and consummate the Restructuring and Restructuring Transactions;
(d) use its commercially reasonable efforts to obtain, file, submit or register any and all required governmental, regulatory and third-party approvals that are necessary or advisable for the Restructuring and Restructuring Transactions;
(e) not directly or indirectly seek or solicit any discussion regarding the negotiation or formulation of any proposal, offer, dissolution, winding up, liquidation, reorganization, recapitalization, assignment for the benefit of creditors, merger, transaction, consolidation, business combination, joint venture, partnership, sale of assets, financing (debt or equity), or restructuring of such Company Party other than the Restructuring (each, an “Alternative Proposal”), and if it receives any Alternative Proposal, deliver such proposal to the Consenting Noteholders within one (1) Business Day of receipt thereof;
(f) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Lawlaw, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employees;
(fg) pay the Transaction Expenses as set forth in, and in accordance with, Section 10 hereof;
(h) not (i) offer to sell or seek to sell any material assets, (ii) enter into, terminate, or agree to any material modification of, any material contractual obligations, or (iii) enter into, terminate, or agree to any material modification of, any material settlements, in each case unless the Company obtains the prior written consent of Required Consenting Noteholders;
(i) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring or Restructuring Transactions, negotiate in good faith appropriate additional or alternative provisions to address any such impediment;; and
(gj) subject to the fiduciary obligations of each Company Party and its respective board of directors, board of managers, or similar governing body, take no action that is inconsistent in any material respect with, or that is intended or reasonably likely to interfere with, or otherwise delay or impede, in any material respect the Restructuring or Restructuring Transactions, this Agreement, the Restructuring Term Sheet or any of the Definitive Documents;
(h) comply with . Without limiting the Company’s obligations hereunder, until the Termination Date, the Company represents, warrants, and covenants to the Consenting Noteholders that it shall not enter into any and all obligations other restructuring support agreement related to a partial or total restructuring of the Company required during Company’s obligations, unless such agreement is (a) not inconsistent with the Forbearance Period (as defined in that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as terms of October 2, 2023 (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023) (as amended, restated, supplemented, or otherwise modified from time to timethe Restructuring, the “Forbearance”)), as if such Forbearance Period was Restructuring Term Sheet and this Agreement and (b) consented to in effect; and
(i) no later than the Outside Date, XxxxXx shall appoint a chief restructuring officer with an identity and scope of engagement, in each case acceptable to the writing by Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this paragraph shall not be deemed to constitute a breach of this AgreementNoteholders.
Appears in 1 contract
Samples: Restructuring Support Agreement (Community Choice Financial Inc.)
Commitments of the Company Parties. Commencing on 8.01. Affirmative Commitments. Except as set forth in Section 9, or unless otherwise consented to or waived by the RSA Required Consenting Parties, during the Agreement Effective DatePeriod, and for so long as the Termination Date (as defined herein) has not occurred with respect to such Company Party, each Company Party, jointly and severally, agrees to use commercially reasonable efforts Parties agree to:
(a) support support, act in good faith, and take all reasonable actions necessary to implement and consummate the Restructuring and Restructuring Transactions, Transactions as contemplated under by this Agreement and the Restructuring Term Sheet, including (i) subject to Section 8.02(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 the applicable Milestones unless waived in accordance with the terms hereof;
(b) no later than the Outside Date, consummate the Restructuring and Restructuring Transactions, and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring and Restructuring Transactions, as contemplated under this Agreement and the Restructuring Term Sheet;
(c) negotiate and consult in good faith with the TSG Sponsor, the LCG Sponsor, and Consenting Lenders (who are party to the applicable Definitive Documents) regarding the terms and conditions of the Definitive Documents, and execute and deliver in a timely manner any documents that may be required to effectuate and consummate the Restructuring and Restructuring Transactions;
(d) obtain, file, submit or register any and all required governmental, regulatory and third-party approvals that are necessary or advisable for the Restructuring and Restructuring Transactions;
(e) conduct, and cause its subsidiaries to conduct, their businesses and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, and use commercially reasonable efforts to preserve intact their business organization and relationships with third parties and employees;
(f) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring or Restructuring Transactions, take all steps reasonably necessary to address any such impediment and to negotiate in good faith with the Consenting Parties and the Consenting Parties’ Advisors regarding reasonable and appropriate additional or alternative provisions to address any such impediment;
(gc) subject respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity, person, or other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with Antitrust Laws as applicable to the fiduciary obligations of each Company Party Restructuring Transactions; and its respective board of directorsuse commercially reasonable efforts to cooperate with and assist the Strategic Investor or the Initial DIP Commitment Parties in order to address, board of managersvacate, modify, reverse, suspend, prevent, eliminate or remove any inquiry, investigation, or similar governing bodyaction by a Governmental Entity, take no action that is inconsistent in any material respect withperson, or other authority pursuant to any applicable Antitrust Laws the existence or outcome of which could reasonably result in an adverse impact to the entitlements of Strategic Investor or the Initial DIP Commitment Parties under this Agreement (for the avoidance of doubt, Strategic Investor or the Initial DIP Commitment Parties, as applicable, shall direct and control strategy with respect to any matters arising under Antitrust Laws);
(d) use commercially reasonable efforts to obtain any and all Permits and Consents that is intended are necessary or reasonably likely to interfere with, advisable for the implementation or otherwise delay or impede, in consummation of any material respect part of the Restructuring Transactions;
(e) reasonably consult with the Consenting Parties regarding any regulatory or other third-party approvals necessary to implement the Restructuring Transactions, and share copies of any documents filed or submitted to any regulatory or other governmental authority in connection with obtaining any regulatory or other third-party approvals;
(f) solely to the extent applicable, cooperate with reasonable requests from the Required Consenting Parties and the Consenting Parties’ Advisors for information or documentation relating to the Company Parties’ continued compliance with applicable Compliance-Related Laws and the Company Parties’ associated compliance policies, procedures, and controls with respect to such Compliance-Related Laws;
(g) negotiate in good faith, execute, and deliver, and use commercially reasonable efforts to perform their obligations under, and 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, ;
(h) timely oppose any objections filed with respect to the Restructuring Term Sheet or Bankruptcy Court’s approval of any of the Definitive Documents;
(hi) comply use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(i) 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 of this Agreement), (ii) provide drafts of the Disclosure Statement, the Plan, any other Solicitation Materials, and all each other Definitive Document to, and afford a reasonable opportunity for comment and review of such documents by, the Consenting Parties’ Advisors, which opportunity of comment and review shall be not less than two Business Days in advance of any filing, execution, distribution, or use (as applicable) thereof (provided that if delivery of such document at least two Business Days in advance is impossible or impracticable under the circumstances, such document shall be delivered as soon as reasonably practicable), and incorporate any reasonable comments from the Consenting Parties in good faith, (iii) consult in good faith with the Consenting Parties’ 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 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 required during Parties under this Section 8.01(j) shall in no way alter or diminish any right expressly provided to any applicable Consenting Party under this Agreement to review, comment on, and/or consent to the Forbearance Period form and/or substance of any document in accordance with the terms hereof;
(as defined k) promptly notify the Consenting Parties’ Advisors in that certain Forbearance and Amendment No. 4 to Credit and Security Agreement, dated as of October 2, 2023 writing (after giving effect to that certain Amendment No. 9 to Credit and Security Agreement, dated December 1, 2023electronic mail being sufficient) (as amended, restated, supplemented, or otherwise modified from time to time, the “Forbearance”)), as if such Forbearance Period was and in effect; and
any event within two Business Days after a Knowledge Party obtains knowledge thereof) of (i) no later than 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, (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 given rise to any legal or structural impediment that would prevent the consummation of the Restructuring Transactions or 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 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, XxxxXx shall appoint (iv) the occurrence of a chief restructuring officer 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 an identity the consummation of any part of the Restructuring Transactions;
(l) maintain the good standing and scope legal existence of engagement, in each case acceptable to the Required Consenting Lenders and the Company. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party under the Laws of the state or the board of directorsjurisdiction in which it is incorporated, board of managersorganized, or similar governing body of a Company Partyformed, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring or any Restructuring Transaction except to the extent taking or failing that any failure to take maintain such action would be inconsistent with Company Party’s good standing arises solely as a result of the filing of the Chapter 11 Cases;
(m) subject in all respects to the terms of any applicable Law or its fiduciary obligations under Confidentiality Agreements(s), applicable Law, and any such action applicable confidentiality obligations of the Company Parties, provide the Consenting Parties’ Advisors and the Strategic Investor with reasonably timely responses to reasonable diligence requests provided by any of the Consenting Parties’ Advisors or inaction the Strategic Investor, as applicable, and reasonable requests by any of the Consenting Parties’ Advisors or the Strategic Investor 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; provided that the Company Parties shall use commercially reasonable efforts to afford the Strategic Investor with the opportunity to participate in any material discussions or negotiations with any of the Sports Leagues or Material MVPDs;
(n) except as otherwise expressly set forth in this Agreement, use commercially reasonable efforts to (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; provided, however, that any actions required to be taken by the Company Parties pursuant to this paragraph Agreement to effectuate the Restructuring Transactions in accordance with the terms set forth in this Agreement (including the Restructuring Term Sheet) shall not be deemed to constitute a breach of the commitment set forth in this AgreementSection 8.01(n);
(o) consult with the Required DIP Commitment Parties and the Required Consenting First Lien Creditors prior to making any material decision with respect to any of the Xxxxxxxx-Related Litigations, including but not limited to pursuing additional claims, filing any dispositive motions, and settling any claims asserted in such Xxxxxxxx-Related Litigations; provided that the Company Parties shall not enter into any settlement for, or otherwise release, any Claim arising out of any of the Xxxxxxxx-Related Litigations, or amend any complaint filed in the Xxxxxxxx-Related Litigations, without the prior written consent (electronic mail, either directly or via counsel, being sufficient) of the Required DIP Commitment Parties and the Required Consenting First Lien Creditors (not to be unreasonably withheld, conditioned, or delayed);
(p) consult with the Required DIP Commitment Parties (or their advisors), the Required Consenting First Lien Creditors (or their advisors), and the Strategic Investor (or its advisors) and keep them reasonably apprised of developments regarding the treatment of material contracts, including with Sports Leagues, Material MVPDs, naming rights or material sponsorship partners, and third parties who make available the Company Parties’ direct-to-consumer offerings; provided that the Company Parties shall not materially amend, modify, terminate, or enter into a new agreement in connection with any of the foregoing without the prior written consent (electronic mail from applicable counsel being sufficient) of the Required Supermajority Consenting Parties (not to be unreasonably withheld, conditioned, or delayed); provided further, that the Company Parties shall not amend or modify the NBA Term Sheet or the NHL Term Sheet, or enter into a new agreement with any of the Sports Leagues that is similar to the NBA Term Sheet or the NHL Term Sheet without the prior written consent (electronic mail from applicable counsel being sufficient) of the Required DIP Commitment Parties and the Strategic Investor;
(q) comply with their commitments, obligations, and covenants (including with respect to the Strategic Investor’s rights with respect to approval of matters) under the Commercial Term Sheet or any long-form agreement memorializing the terms thereof (each as if in effect prior to the Plan Effective Date) and the Convertible B Commitment Letter;
(r) (i) use commercially reasonable efforts to cause the Company Parties to be separated from the Xxxxxxxx Parties as soon as practicable after the Execution Date such that the Company Parties can operate from and after the Plan Effective Date on a standalone basis in the ordinary course of business in accordance with the Restructuring Term Sheet, (ii) keep the Initial DIP Commitment Parties (or the advisors thereto), the Required Consenting First Lien Creditors (or the advisors thereto), and the Strategic Investor reasonably informed with respect to the status of the separation of the Company Parties from the Xxxxxxxx Parties, including the expenditures projected to be incurred in connection therewith, (iii) cooperate with reasonable requests from the Initial DIP Commitment Parties (or the advisors thereto) and the Strategic Investor for information or documentation relating to the separation of the Company Parties from the Xxxxxxxx Parties, including requests for information relating to the budget and actual and projected costs incurred in connection therewith, and (iv) provide the Initial DIP Commitment Parties (or the advisors thereto) and the Strategic Investor with reasonable access to officers or advisors of the Company Parties through a monthly standing call and, as reasonably necessary, periodic update calls as may be reasonably requested by the Initial DIP Commitment Parties and/or the Strategic Investor in connection with the separation of the Company Parties from the Xxxxxxxx Parties;
(s) use commercially reasonable efforts to obtain any necessary consents or amendments from Red Seam Holdings LLC and/or its members to allow for the creation of a direct security interest in the YES Interests and waiver of any applicable rights of first offer or refusal relating to any pledge, foreclosure, or transfer of the YES Interests;
(t) subject to the terms of the Commercial Term Sheet, and in consultation with the Required DIP Commitment Parties and the Strategic Investor, use commercially reasonable efforts to replace the Bally’s Agreement and enter into a new naming rights agreement;
(u) provide the Strategic Investor with the budget and variance reports provided by the Company Parties under the DIP Order; and
(v) except to the extent permitted by Section 9.02, cease and terminate any ongoing, and refrain from any future, solicitations, discussions, and negotiations with respect to any Alternative Restructuring.
Appears in 1 contract
Samples: Confidentiality Agreement
