Company’s Covenants. The Company hereby acknowledges, covenants and agrees: (a) to the Recapitalization Transaction Terms (including the terms of this Support Agreement and the Plan); (b) to (i) apply to the Court pursuant to section 192 of the CBCA and prepare, file and diligently pursue an application for the Interim Order, (ii) afford the Supporting Noteholder and its Advisors a reasonable opportunity to review and comment on drafts of the Circular (and, in any event, at least five Business Days in advance of circulating the Circular to Noteholders) and accept reasonable comments made by them, and (iii) include in the Circular the recommendation of the Board that Noteholders vote in favour of the Plan and a copy of the Fairness Opinion; (c) to use commercially reasonable efforts to pursue and support the Recapitalization Transaction and to achieve the following timeline (which timeline may be extended at any time as agreed in writing by the Company and the Supporting Noteholder): (i) Court approval of the Interim Order shall have been obtained by no later than March 10, 2017; (ii) the Meeting shall have been convened by no later than April 18, 2017; (iii) the Plan shall have been approved by the Court pursuant to the Final Order by no later than April 28, 2017; and (iv) the Recapitalization Transaction shall have been implemented pursuant to the Plan on or prior to the Outside Date; (d) to provide draft copies of all motions or applications and other material documents that the Company intends to file with the Court with respect to the Recapitalization Transaction and the Plan to the Advisors as soon as practicable prior to filing such materials with the Court, and all such filings shall be acceptable to the Supporting Noteholder, acting reasonably; (e) no earlier than the time at which the Interim Order is granted and no later than 8:00 a.m. (prevailing Eastern time) on the Business Day following the granting of the Interim Order, to issue a press release or other public disclosure that discloses the material provisions of the Recapitalization Transaction and that is acceptable to the Company and the Supporting Noteholder, each acting reasonably, and such press release may refer to the “Disclosure Information” contained in the “Cleansing Materials” (each as defined in the Confidentiality Agreement) for any part of such disclosure; and the Parties further agree that the “Disclosure Time” (as defined in and for purposes of the Confidentiality Agreement) shall be the date and time the Interim Order is granted (or, if earlier, the date and time this Support Agreement is terminated in accordance with Section 12) and that the Cleansing Materials shall not be filed or otherwise publicly disclosed in advance thereof unless otherwise required by Law; (f) to comply with the terms and covenants of the Indenture other than any terms and covenants that would restrict or impede (i) the commencement and/or continuation of the CBCA Proceedings in conformity with this Support Agreement; and (ii) the pursuit of the Recapitalization Transaction, including the entering into of any related documents, in conformity with this Support Agreement; (g) except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement, or is required by applicable Law, to operate its business in the ordinary course of business, and, without limiting the generality of the foregoing, the Company shall not, directly or indirectly, except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement or as is required by applicable Law: (i) (A) amend or propose to amend the articles, by-laws or other constating documents of the Company or the terms of any securities of the Company or split, combine or reclassify any outstanding Company Shares or undertake any capital reorganization or reduction of capital or any combination thereof, (B) redeem, purchase or offer to purchase any Company Shares or other securities of the Company, (C) issue, grant, sell, distribute, dividend or authorize, or agree to issue, grant, sell, distribute, dividend or authorize, any shares of the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Company, (D) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any share of the Company, (E) reduce the stated capital of the shares of the Company, or (F) make any other material changes to the Company’s corporate or capital structure; (ii) (A) prepay, redeem prior to maturity, defease, refinance, repurchase or make other prepayments in respect of its funded indebtedness, or refinance or otherwise materially amend any material portion of its existing indebtedness, (B) make any other payments (other than interest payments as and when due in the ordinary course) or pay any fees of any kind in respect of any indebtedness for borrowed money including any consent, waiver or default fee, (C) create, incur, issue, assume, guarantee or otherwise become directly liable with respect to indebtedness of any kind whatsoever (except for indebtedness that is incurred in the ordinary course of business that is not material), or (D) create, incur, assume or otherwise cause or suffer to exist or become effective any new Lien on, over or against any of its assets or property (except for any Lien that is incurred in the ordinary course of business or other Ordinary Course Lien, in each case where such Lien is not to secure indebtedness for borrowed money except as permitted by Section 5(j)); (iii) (A) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or commence, or consent to, Insolvency Proceedings, (B) reorganize, amalgamate, consolidate or merge the Company with or into, or sell all or substantially all of its assets to, any other person, or (C) acquire or agree to acquire (by acquisition of shares or assets or otherwise) any person, or make any investment either by purchase of shares or securities, contributions of capital or property transfer in or to any other person, where such acquisitions and investments have a value greater than $1.0 million in the aggregate; (iv) (A) materially increase compensation or severance entitlements or other benefits payable to directors, officers or other senior management of the Company, enter into any key employee retention plans or make any Bonus Payments other than in the ordinary course, (B) enter into or materially modify any severance or similar agreements, policies or arrangements with, or authorize any other form of material increase of compensation or any material increase of benefits payable to, or accelerate the vesting of any item of compensation of employee benefits with respect to, or (other than in the ordinary course of business) make any loan to, any director, officer or employee (or independent contractor) of the Company or make determinations under any benefit or other plans that are inconsistent with past practices, or (C) other than in the ordinary course of business, pay (other than pursuant to existing agreements) or incur any termination, severance, retention or similar payments to any employee, officer or director of the Company; (v) transfer, lease, license or otherwise dispose of all or any material part of its property, assets or undertakings outside of the ordinary course; (vi) (A) enter into any contract that, if entered into prior to the date hereof, would have been a Material Contract, or (B) modify or amend in any material respect, assign or terminate any Material Contract; or (vii) pay, discharge, settle, satisfy, compromise, waive, assign or release any claims, liabilities or obligations (including any claims of Noteholders and any Noteholder litigation relating to the Recapitalization Transaction or otherwise) for an amount exceeding $1.0 million in the aggregate, other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements; (h) to use commercially reasonable efforts to cause its current insurance policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (i) to promptly notify the Advisors of any claims threatened or brought against it which may be reasonably be expected to materially impede or delay the consummation of the Recapitalization Transaction or any material part thereof; (j) from and after the date hereof and until the earlier of (x) two years from the date hereof, and (y) the date that the Supporting Noteholder and its Permitted Affiliate Transferees cease, in the aggregate, to beneficially own at least $50 million principal amount of Notes, not to (i) create, incur or otherwise cause or suffer to exist or become effective any Liens of any kind securing “Indebtedness” (as currently defined in the Indenture) upon or with respect to any property or assets of the Company or any of its subsidiaries, other than “Permitted Liens” (as currently defined in the Indenture) of the type referred to in clauses (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), (18) or (19) of such “Permitted Liens” definition (collectively, “Ordinary Course Liens”) or to secure Indebtedness incurred under the Credit Facility pursuant to clause (10) of such “Permitted Liens” definition, or (ii) increase the total amount available to be borrowed under the Credit Facility, in each case without the prior written consent of the Supporting Noteholder; provided, however, that from and after one year from the date hereof, the Company may incur up to $15 million of additional “Indebtedness” (as currently defined in the Indenture) permitted by Section 4.09(x) of the Indenture (and incur Liens in respect thereof pursuant to clause (16) of such “Permitted Liens” definition) if the proceeds therefrom are used exclusively for working capital purposes; and (k) to comply with the Reimbursement Agreement (and, for purposes of the Reimbursement Agreement, only notice of termination of this Support Agreement that is given in accordance with Section 12 shall constitute notice by a Party to the other Party that it will not proceed with the “Proposed Transaction” (within the meaning of the Reimbursement Agreement)).
Appears in 1 contract
Samples: Support Agreement (Millar Western Forest Products LTD)
Company’s Covenants. The Commencing on the date hereof and continuing until the date this Agreement is terminated as to the Company, subject to, and in consideration of, the matters set forth in this Agreement, the Company hereby acknowledges, covenants and agrees:
(a) to the Recapitalization Transaction Terms (including and to support and take all reasonable actions necessary to implement the terms of Transaction in accordance with this Support Agreement and on the Plan)timetable set forth herein;
(b) to (i) apply to the Court pursuant to section 192 of file the CBCA Plan on a timely basis consistent with the terms and prepareconditions of this Agreement, file and diligently pursue an application for recommend that any Person entitled to vote on the Interim Order, (ii) afford the Supporting Noteholder and its Advisors a reasonable opportunity to review and comment on drafts of the Circular (and, in any event, at least five Business Days in advance of circulating the Circular to Noteholders) and accept reasonable comments made by them, and (iii) include in the Circular the recommendation of the Board that Noteholders CBCA Plan vote in favour of the Plan and a copy of the Fairness Opinion;
(c) to use CBCA Plan, take all commercially reasonable efforts actions necessary to pursue and support obtain any regulatory approvals required to implement the Recapitalization Transaction and to achieve the following timeline (which timeline may be extended at any time as agreed in writing (which may be by email) by the Company and the Supporting NoteholderInitial Consenting Noteholders):
(i) Court approval of filing the application in the CBCA Proceedings seeking the Interim Order shall have been obtained by no later than March 10, 2017;
(ii) the Meeting shall have been convened by no later than April 18, 20172019;
(ii) obtain approval of the Interim Order by the Court by no later than April 18, 2019;
(iii) the Plan shall have been approved by the Court pursuant to obtain approval of the Final Order by the Court by no later than April 28June 12, 20172019; and
(iv) implement the Recapitalization Transaction shall have been implemented pursuant to the CBCA Plan on or prior to the Outside Date;
(dc) to provide draft copies of all motions or applications and other material documents with respect to the Transaction and the CBCA Plan that the Company intends to file with the Court in connection with respect the CBCA Proceedings to the Recapitalization Transaction and the Plan Initial Consenting Noteholder Advisors at least three (3) Business Days prior to the Advisors date when the Company intends to file or otherwise disseminate such documents (or, where circumstances make it impracticable to allow for three (3) Business Days’ review, with as soon much opportunity for review and comment as practicable prior to filing such materials with is practically possible in the Courtcircumstances), and all such filings and other documents submitted to the Court shall be acceptable to the Supporting Noteholder, acting reasonably;
(e) no earlier than the time at which the Interim Order is granted in a form consistent with this Agreement and no later than 8:00 a.m. (prevailing Eastern time) on the Business Day following the granting of the Interim Order, to issue a press release or other public disclosure that discloses the material provisions of the Recapitalization Transaction and that is otherwise acceptable to the Company and the Supporting NoteholderInitial Consenting Noteholders, each acting reasonably;
(d) not to, and such press release directly or indirectly, without the prior written consent (which may refer to the “Disclosure Information” contained in the “Cleansing Materials” (each as defined in the Confidentiality Agreementbe by email) for any part of such disclosure; and the Parties further agree that the “Disclosure Time” (as defined in and for purposes of the Confidentiality Initial Consenting Noteholders, modify the Transaction, in whole or in part, in a manner that is inconsistent with the terms of this Agreement) shall be , or take any action that is materially inconsistent with, or is intended or is likely to interfere with or delay the date and time the Interim Order is granted (or, if earlierconsummation of, the date and time this Support Agreement is terminated in accordance Transaction;
(e) to use reasonable efforts to timely file, where applicable, a formal objection to any action by any Person seeking to object to, delay, impede or take any other action to interfere with Section 12) and that the Cleansing Materials shall not be filed or otherwise publicly disclosed in advance thereof unless otherwise required by Lawapproval of implementation of the Transaction;
(f) to comply use commercially reasonable efforts to (A) preserve intact in all material respects the current business operations of the Company, (B) keep available the services of its current officers and key employees (in each case, other than voluntary resignations, terminations for cause, or terminations consistent with applicable fiduciary duties), and (C) preserve in all material respects its relationships with customers, suppliers, distributors, and others, in each case, having material business dealings with the terms and covenants of the Indenture Company (other than any terms and covenants that would restrict terminations for cause or impede (i) the commencement and/or continuation of the CBCA Proceedings in conformity consistent with this Support Agreement; and (ii) the pursuit of the Recapitalization Transaction, including the entering into of any related documents, in conformity with this Support Agreementapplicable fiduciary duties);
(g) except as is otherwise expressly contemplated to promptly, but in no event later than four (4) Business Days from Company Key Personnel becoming aware of the occurrence thereof, notify the Initial Consenting Noteholder Advisors of any material breach of a representation, warranty or covenant by the Recapitalization Transaction Terms and Company under this Support Agreement which would result in a failure to satisfy the conditions set out in Section 8 of this Agreement;
(h) to promptly, but in no event later than four (4) Business Days from Company Key Personnel becoming aware of the occurrence thereof, notify the Initial Consenting Noteholder Advisors of (i) any claims threatened or brought against it or (ii) any newly commenced governmental, regulatory, or is required by applicable Lawthird party litigations, to operate its business investigations, or hearings, in case which may impede or delay the ordinary course of business, and, without limiting the generality consummation of the foregoing, the Company shall not, directly or indirectly, except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement or as is required by applicable Law:Transaction;
(i) (A) amend to promptly notify the Initial Consenting Noteholder Advisors if, at any time before the Effective Date, it becomes aware that any material application for a regulatory approval or propose to amend the articles, by-laws or other constating documents of the Company or the terms of any securities of the Company or split, combine or reclassify any outstanding Company Shares or undertake any capital reorganization or reduction of capital or any combination thereof, (B) redeem, purchase or offer to purchase any Company Shares or other securities of the Company, (C) issue, grant, sell, distribute, dividend or authorize, or agree to issue, grant, sell, distribute, dividend or authorize, any shares of the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Company, (D) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any share of the Company, (E) reduce the stated capital of the shares of the Company, or (F) make any other material changes order, registration, consent, filing, ruling, exemption or approval under applicable Law contains a statement which is materially inaccurate or incomplete or of information that otherwise requires an amendment or supplement by the Company to such application, and the Company’s corporate Company shall prepare such amendment or capital structuresupplement as required;
(iij) to use commercially reasonable efforts to obtain any and all required regulatory and/or third party approvals necessary for the implementation of the Transaction;
(Ak) except with the prior written consent of the Initial Consenting Noteholders, or as specifically permitted by this Agreement (including the Term Sheet) and the Transaction, to not: (i) prepay, redeem prior to maturity, defease, refinance, repurchase or make other prepayments in respect of its funded indebtedness, or refinance or otherwise materially amend any material portion of its existing indebtedness, (B) make any other payments (other than interest payments as and when due in the ordinary course) or pay any fees of any kind in respect of any indebtedness for borrowed money including any consentmoney; (ii) other than in the ordinary course of business consistent with past practice, waiver directly or default feeindirectly, (C) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any indebtedness of any kind whatsoever for borrowed money; (except for indebtedness that is incurred in the ordinary course of business that is not material), or (Diii) create, incur, assume or otherwise cause or suffer to exist or become effective any new Lien lien, charge, mortgage, hypothec or security interest of any kind whatsoever on, over or against any of its assets or property (except for any Lien lien, charge, mortgage, hypothec or security interest that is incurred in the ordinary course of business or other Ordinary Course Lien, in each case where such Lien and that is not to secure indebtedness for borrowed money except as permitted by Section 5(jmaterial));
; or (iiiiv) (A) adopt a plan declare or pay any dividends or distributions on or in respect of liquidation or resolutions providing for the liquidation or dissolution any shares of the Company or commenceredeem, retract, purchase or consent to, Insolvency Proceedings, (B) reorganize, amalgamate, consolidate or merge the Company with or into, or sell all or substantially all acquire any of its assets to, any other person, or (C) acquire or agree to acquire (by acquisition of shares or assets or otherwise) any person, or make any investment either by purchase of shares or securities, contributions of capital or property transfer in or to any other person, where such acquisitions and investments have a value greater than $1.0 million in the aggregateshares;
(ivl) to not, without the prior written consent of the Initial Consenting Noteholders, amend, modify, replace, terminate, repudiate, disclaim or waive any rights under or in respect of its Material Contracts (Aother than as expressly required by such Material Contracts, by this Agreement or in the ordinary course of performing its obligations under such Material Contracts) in any manner that would reasonably be expected to be materially adverse to the Company;
(m) to maintain good standing under the laws of the jurisdiction in which the Company and each of its subsidiaries is incorporated or organized, subject to the continuance of the Company to the CBCA contemplated in connection with the CBCA Plan;
(n) to use commercially reasonable efforts to continue to comply with the listing requirements of TSX;
(o) to provide, upon reasonable request and with reasonable prior notice, the Initial Consenting Noteholder Advisors or the Initial Consenting Noteholders that have entered into confidentiality agreements with the Company (including confidentiality agreements entered into prior to the date of this Agreement that remain in effect), or any of them, as the case may be, with reasonable access to the books and records of the Company and its subsidiaries and affiliates (other than books or records that are subject to solicitor-client privilege and subject to the Company having the right to not provide any material non-public information unless otherwise agreed by the Company and the applicable Initial Consenting Noteholder) for review in connection with the Transaction;
(p) to not seek discovery in connection with, prepare or commence any legal proceeding that challenges the amount, validity, enforceability or priority of the Relevant Debt or Relevant Shares of any Consenting Noteholder;
(q) to not make a determination that the implementation of the Transaction is deemed to result in a change of control under any equity or equity-linked incentive plan;
(r) to not: (i) materially increase compensation or severance entitlements or other benefits payable to its officers or directors, officers including by way of a key employee incentive plan, (ii) materially increase compensation or severance entitlements or other senior management benefits payable to all or substantially all of the employees of the Company, enter or (iii) take or omit to take any action that would entitle any person to any bonus, lump sum, change of control, severance, retention or other payment any time prior to the last date that such person would be entitled to receive such payment in accordance with a binding written agreement with the Company (entered into any key employee retention plans prior to the date hereof or otherwise as required in accordance with applicable Law);
(s) except with the prior written consent of the Initial Consenting Noteholders, to not make any Bonus Payments other than in the ordinary course, (B) enter into cash payment under any equity or materially modify any severance or similar agreements, policies or arrangements with, or authorize any other form of material increase of compensation or any material increase of benefits payable to, or accelerate the vesting of any item of compensation of employee benefits with respect to, or equity-linked incentive plans (other than in respect of any existing equity awards in the ordinary course of business) make any loan to, any director, officer or employee (or independent contractor) pursuant to the terms of the Company or make determinations under Company’s existing equity incentive plans);
(t) to comply with the terms and covenants of the Existing Senior Unsecured Notes Indenture other than any benefit or other plans terms and covenants that are inconsistent with past practicesmay be breached as a result of (i) the commencement and/or continuation of the CBCA Proceedings, or (Cii) other than the pursuit of the Transaction, including the entering into of any related documents, as specifically contemplated by this Agreement or the CBCA Plan, or otherwise agreed to by the Initial Consenting Noteholders;
(u) except with the prior written consent of the Initial Consenting Noteholders, to operate its business in the ordinary course of business, pay (other than pursuant having regard to existing agreements) or incur any termination, severance, retention or similar payments to any employee, officer or director of the Companyits current financial condition;
(v) transfer, lease, license or otherwise dispose of all or any material part of its property, assets or undertakings outside of the ordinary course;
(vi) (A) enter into any contract that, if entered into prior to the date hereof, would have been a Material Contract, or (B) modify or amend in any material respect, assign or terminate any Material Contract; or
(vii) pay, discharge, settle, satisfy, compromise, waive, assign or release any claims, liabilities or obligations (including any claims of Noteholders and any Noteholder litigation relating to the Recapitalization Transaction or otherwise) for an amount exceeding $1.0 million in the aggregate, other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements;
(h) to use all commercially reasonable efforts to cause its current insurance policies not to be cancelled or terminated or any have the New Second Lien Notes and the New Third Lien Notes rated by at least two credit rating agencies as of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(i) to promptly notify the Advisors of any claims threatened or brought against it which may be reasonably be expected to materially impede or delay the consummation of the Recapitalization Transaction or any material part thereof;
(j) from and after the date hereof and until the earlier of (x) two years from the date hereof, and (y) the date that the Supporting Noteholder and its Permitted Affiliate Transferees cease, in the aggregate, to beneficially own at least $50 million principal amount of Notes, not to (i) create, incur or otherwise cause or suffer to exist or become effective any Liens of any kind securing “Indebtedness” (as currently defined in the Indenture) upon or with respect to any property or assets of the Company or any of its subsidiaries, other than “Permitted Liens” (as currently defined in the Indenture) of the type referred to in clauses (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), (18) or (19) of such “Permitted Liens” definition (collectively, “Ordinary Course Liens”) or to secure Indebtedness incurred under the Credit Facility pursuant to clause (10) of such “Permitted Liens” definition, or (ii) increase the total amount available to be borrowed under the Credit Facility, in each case without the prior written consent of the Supporting Noteholder; provided, however, that from and after one year from the date hereof, the Company may incur up to $15 million of additional “Indebtedness” (as currently defined in the Indenture) permitted by Section 4.09(x) of the Indenture (and incur Liens in respect thereof pursuant to clause (16) of such “Permitted Liens” definition) if the proceeds therefrom are used exclusively for working capital purposesEffective Date; and
(kw) to comply with pay the Reimbursement Agreement (and, for purposes reasonable and documented outstanding fees and expenses of each of the Reimbursement Agreement, only notice of termination of this Support Agreement that is given Initial Consenting Noteholder Advisors in full in cash in accordance with Section 12 shall constitute notice by a Party to the other Party that it will not proceed each of their respective written agreements with the “Proposed Transaction” (within the meaning of the Reimbursement Agreement))Company.
Appears in 1 contract
Samples: Consent and Support Agreement (Bellatrix Exploration Ltd.)
Company’s Covenants. The Company hereby acknowledges, covenants and agreesagrees and, in the Agency Agreement and/or the Special Warrant Indenture, the Company will covenant and agree as follows:
(a) to use its commercially reasonable best efforts (i) to cause a Registration Statement to be filed and prosecuted to effectiveness, (ii) to cause the Recapitalization Transaction Terms preliminary prospectus of the Company relating to the distribution of the Unit Shares and Warrants (including the terms of this Support Agreement "PRELIMINARY PROSPECTUS") to be filed and (iii) to obtain receipts for the final Prospectus, as expeditiously as reasonably practicable after the Closing Date, in each case in form and substance satisfactory to the Company and the Plan)Agents, acting reasonably;
(b) to (i) apply use its reasonable best efforts to promptly comply with all filing and other requirements under all Applicable Securities Laws, including, where required by the Agency Agreement or any Applicable Securities Laws, the filing of amendments to the Court pursuant to section 192 Preliminary Prospectus and Prospectus in each of the CBCA and prepare, file and diligently pursue an application for the Interim Order, (ii) afford the Supporting Noteholder and its Advisors a reasonable opportunity to review and comment on drafts of the Circular (Canadian Jurisdictions; and, in any event, at least five Business Days in advance of circulating the Circular to Noteholders) and accept reasonable comments made by them, and (iii) include in the Circular the recommendation of the Board that Noteholders vote in favour of the Plan and a copy of the Fairness Opinion;
(c) to use its commercially reasonable best efforts to pursue and support maintain its status as a reporting issuer (or analogous entity) under the Recapitalization Transaction Applicable Securities Laws of such provinces in which it becomes a reporting issuer (or analogous entity) as a result of filing the Prospectus as required under the Agency Agreement and to achieve the following timeline (which timeline may continue to be extended at any time as agreed in writing by the Company and the Supporting Noteholder):
(i) Court approval of the Interim Order shall have been obtained by no later than March 10, 2017;
(ii) the Meeting shall have been convened by no later than April 18, 2017;
(iii) the Plan shall have been approved by the Court pursuant to the Final Order by no later than April 28, 2017; and
(iv) the Recapitalization Transaction shall have been implemented pursuant to the Plan on or prior to the Outside Date;
(d) to provide draft copies of all motions or applications and other material documents that the Company intends to file compliance with the Court with respect to the Recapitalization Transaction and the Plan to the Advisors as soon as practicable prior to filing such materials with the Court, and all such filings shall be acceptable to the Supporting Noteholder, acting reasonably;
(e) no earlier than the time at which the Interim Order is granted and no later than 8:00 a.m. (prevailing Eastern time) on the Business Day following the granting of the Interim Order, to issue a press release or other public disclosure that discloses the material provisions of the Recapitalization Transaction and that is acceptable to the Company and the Supporting Noteholder, each acting reasonably, and such press release may refer to the “Disclosure Information” contained in the “Cleansing Materials” (each as defined in the Confidentiality Agreement) for any part of such disclosure; and the Parties further agree that the “Disclosure Time” (as defined in and for purposes of the Confidentiality Agreement) shall be the date and time the Interim Order is granted (or, if earlier, the date and time this Support Agreement is terminated in accordance with Section 12) and that the Cleansing Materials shall not be filed or otherwise publicly disclosed in advance thereof unless otherwise required by Law;
(f) to comply with the terms and covenants of the Indenture other than any terms and covenants that would restrict or impede (i) the commencement and/or continuation of the CBCA Proceedings in conformity with this Support Agreement; and (ii) the pursuit of the Recapitalization Transaction, including the entering into of any related documents, in conformity with this Support Agreement;
(g) except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement, or is required by applicable Law, to operate its business in the ordinary course of business, andobligations thereunder, without limiting the generality default, for a period of the foregoing, the Company shall not, directly or indirectly, except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement or as is required by applicable Law:
(i) (A) amend or propose to amend the articles, by-laws or other constating documents of the Company or the terms of any securities of the Company or split, combine or reclassify any outstanding Company Shares or undertake any capital reorganization or reduction of capital or any combination thereof, (B) redeem, purchase or offer to purchase any Company Shares or other securities of the Company, (C) issue, grant, sell, distribute, dividend or authorize, or agree to issue, grant, sell, distribute, dividend or authorize, any shares of the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Company, (D) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any share of the Company, (E) reduce the stated capital of the shares of the Company, or (F) make any other material changes to the Company’s corporate or capital structure;
(ii) (A) prepay, redeem prior to maturity, defease, refinance, repurchase or make other prepayments in respect of its funded indebtedness, or refinance or otherwise materially amend any material portion of its existing indebtedness, (B) make any other payments (other than interest payments as and when due in the ordinary course) or pay any fees of any kind in respect of any indebtedness for borrowed money including any consent, waiver or default fee, (C) create, incur, issue, assume, guarantee or otherwise become directly liable with respect to indebtedness of any kind whatsoever (except for indebtedness that is incurred in the ordinary course of business that is not material), or (D) create, incur, assume or otherwise cause or suffer to exist or become effective any new Lien on, over or against any of its assets or property (except for any Lien that is incurred in the ordinary course of business or other Ordinary Course Lien, in each case where such Lien is not to secure indebtedness for borrowed money except as permitted by Section 5(j));
(iii) (A) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or commence, or consent to, Insolvency Proceedings, (B) reorganize, amalgamate, consolidate or merge the Company with or into, or sell all or substantially all of its assets to, any other person, or (C) acquire or agree to acquire (by acquisition of shares or assets or otherwise) any person, or make any investment either by purchase of shares or securities, contributions of capital or property transfer in or to any other person, where such acquisitions and investments have a value greater than $1.0 million in the aggregate;
(iv) (A) materially increase compensation or severance entitlements or other benefits payable to directors, officers or other senior management of the Company, enter into any key employee retention plans or make any Bonus Payments other than in the ordinary course, (B) enter into or materially modify any severance or similar agreements, policies or arrangements with, or authorize any other form of material increase of compensation or any material increase of benefits payable to, or accelerate the vesting of any item of compensation of employee benefits with respect to, or (other than in the ordinary course of business) make any loan to, any director, officer or employee (or independent contractor) of the Company or make determinations under any benefit or other plans that are inconsistent with past practices, or (C) other than in the ordinary course of business, pay (other than pursuant to existing agreements) or incur any termination, severance, retention or similar payments to any employee, officer or director of the Company;
(v) transfer, lease, license or otherwise dispose of all or any material part of its property, assets or undertakings outside of the ordinary course;
(vi) (A) enter into any contract that, if entered into prior to the date hereof, would have been a Material Contract, or (B) modify or amend in any material respect, assign or terminate any Material Contract; or
(vii) pay, discharge, settle, satisfy, compromise, waive, assign or release any claims, liabilities or obligations (including any claims of Noteholders and any Noteholder litigation relating to the Recapitalization Transaction or otherwise) for an amount exceeding $1.0 million in the aggregate, other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements;
(h) to use commercially reasonable efforts to cause its current insurance policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(i) to promptly notify the Advisors of any claims threatened or brought against it which may be reasonably be expected to materially impede or delay the consummation of the Recapitalization Transaction or any material part thereof;
(j) from and after the date hereof and until the earlier of (x) two years from the date hereof, and (y) the date that the Supporting Noteholder and its Permitted Affiliate Transferees cease, in the aggregate, to beneficially own at least $50 million principal amount of Notes, not to (i) create, incur or otherwise cause or suffer to exist or become effective any Liens of any kind securing “Indebtedness” (as currently defined in the Indenture) upon or with respect to any property or assets of the Company or any of its subsidiaries, other than “Permitted Liens” (as currently defined in the Indenture) of the type referred to in clauses (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), (18) or (19) of such “Permitted Liens” definition (collectively, “Ordinary Course Liens”) or to secure Indebtedness incurred under the Credit Facility pursuant to clause (10) of such “Permitted Liens” definition, or (ii) increase the total amount available to be borrowed under the Credit Facility, in each case without the prior written consent of the Supporting Noteholder; provided, however, that from and after one year from the date hereofof the filing of the Prospectus in each Canadian Jurisdiction. In addition, the covenants of and terms applicable to the Company may incur up to $15 million of additional “Indebtedness” (as currently defined set out in the Indenture) permitted by Section 4.09(x) Agency Agreement are hereby incorporated into this section as additional covenants of the Indenture (and incur Liens in respect thereof pursuant to clause (16) of such “Permitted Liens” definition) if the proceeds therefrom are used exclusively for working capital purposes; and
(k) to comply with the Reimbursement Agreement (and, for purposes of the Reimbursement Agreement, only notice of termination of this Support Agreement that is given in accordance with Section 12 shall constitute notice by a Party to the other Party that it will not proceed with the “Proposed Transaction” (within the meaning of the Reimbursement Agreement))Company.
Appears in 1 contract
Samples: Subscription Agreement (Voice Mobility International Inc)
Company’s Covenants. The Company hereby acknowledges, covenants and agreesagrees and, in the Agency Agreement and/or the Special Warrant Indenture, the Company will covenant and agree as follows:
(a) to use its commercially reasonable best efforts (i) to cause a Registration Statement to be filed and prosecuted to effectiveness, (ii) to cause the Recapitalization Transaction Terms preliminary prospectus of the Company relating to the distribution of the Unit Shares and Warrants (including the terms of this Support Agreement "PRELIMINARY PROSPECTUS") to be filed and (iii) to obtain receipts for the final Prospectus, as expeditiously as reasonably practicable after the Closing Date, in each case in form and substance satisfactory to the Company and the Plan)Agents, acting reasonably;
(b) to (i) apply use its reasonable best efforts to promptly comply with all filing and other requirements under all Applicable Securities Laws, including, where required by the Agency Agreement or any Applicable Securities Laws, the filing of amendments to the Court pursuant to section 192 Preliminary Prospectus and Prospectus in each of the CBCA and prepare, file and diligently pursue an application for the Interim Order, (ii) afford the Supporting Noteholder and its Advisors a reasonable opportunity to review and comment on drafts of the Circular (Canadian Jurisdictions; and, in any event, at least five Business Days in advance of circulating the Circular to Noteholders) and accept reasonable comments made by them, and (iii) include in the Circular the recommendation of the Board that Noteholders vote in favour of the Plan and a copy of the Fairness Opinion;
(c) to use its commercially reasonable best efforts to pursue and support maintain its status as a reporting issuer (or analogous entity) under the Recapitalization Transaction Applicable Securities Laws of such provinces in which it becomes a reporting issuer (or analogous entity) as a result of filing the Prospectus as required under the Agency Agreement and to achieve the following timeline (which timeline may continue to be extended at any time as agreed in writing by the Company and the Supporting Noteholder):
(i) Court approval of the Interim Order shall have been obtained by no later than March 10, 2017;
(ii) the Meeting shall have been convened by no later than April 18, 2017;
(iii) the Plan shall have been approved by the Court pursuant to the Final Order by no later than April 28, 2017; and
(iv) the Recapitalization Transaction shall have been implemented pursuant to the Plan on or prior to the Outside Date;
(d) to provide draft copies of all motions or applications and other material documents that the Company intends to file compliance with the Court with respect to the Recapitalization Transaction and the Plan to the Advisors as soon as practicable prior to filing such materials with the Court, and all such filings shall be acceptable to the Supporting Noteholder, acting reasonably;
(e) no earlier than the time at which the Interim Order is granted and no later than 8:00 a.m. (prevailing Eastern time) on the Business Day following the granting of the Interim Order, to issue a press release or other public disclosure that discloses the material provisions of the Recapitalization Transaction and that is acceptable to the Company and the Supporting Noteholder, each acting reasonably, and such press release may refer to the “Disclosure Information” contained in the “Cleansing Materials” (each as defined in the Confidentiality Agreement) for any part of such disclosure; and the Parties further agree that the “Disclosure Time” (as defined in and for purposes of the Confidentiality Agreement) shall be the date and time the Interim Order is granted (or, if earlier, the date and time this Support Agreement is terminated in accordance with Section 12) and that the Cleansing Materials shall not be filed or otherwise publicly disclosed in advance thereof unless otherwise required by Law;
(f) to comply with the terms and covenants of the Indenture other than any terms and covenants that would restrict or impede (i) the commencement and/or continuation of the CBCA Proceedings in conformity with this Support Agreement; and (ii) the pursuit of the Recapitalization Transaction, including the entering into of any related documents, in conformity with this Support Agreement;
(g) except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement, or is required by applicable Law, to operate its business in the ordinary course of business, andobligations thereunder, without limiting the generality default, for a period of the foregoing, the Company shall not, directly or indirectly, except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement or as is required by applicable Law:
(i) (A) amend or propose to amend the articles, by-laws or other constating documents of the Company or the terms of any securities of the Company or split, combine or reclassify any outstanding Company Shares or undertake any capital reorganization or reduction of capital or any combination thereof, (B) redeem, purchase or offer to purchase any Company Shares or other securities of the Company, (C) issue, grant, sell, distribute, dividend or authorize, or agree to issue, grant, sell, distribute, dividend or authorize, any shares of the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Company, (D) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any share of the Company, (E) reduce the stated capital of the shares of the Company, or (F) make any other material changes to the Company’s corporate or capital structure;
(ii) (A) prepay, redeem prior to maturity, defease, refinance, repurchase or make other prepayments in respect of its funded indebtedness, or refinance or otherwise materially amend any material portion of its existing indebtedness, (B) make any other payments (other than interest payments as and when due in the ordinary course) or pay any fees of any kind in respect of any indebtedness for borrowed money including any consent, waiver or default fee, (C) create, incur, issue, assume, guarantee or otherwise become directly liable with respect to indebtedness of any kind whatsoever (except for indebtedness that is incurred in the ordinary course of business that is not material), or (D) create, incur, assume or otherwise cause or suffer to exist or become effective any new Lien on, over or against any of its assets or property (except for any Lien that is incurred in the ordinary course of business or other Ordinary Course Lien, in each case where such Lien is not to secure indebtedness for borrowed money except as permitted by Section 5(j));
(iii) (A) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or commence, or consent to, Insolvency Proceedings, (B) reorganize, amalgamate, consolidate or merge the Company with or into, or sell all or substantially all of its assets to, any other person, or (C) acquire or agree to acquire (by acquisition of shares or assets or otherwise) any person, or make any investment either by purchase of shares or securities, contributions of capital or property transfer in or to any other person, where such acquisitions and investments have a value greater than $1.0 million in the aggregate;
(iv) (A) materially increase compensation or severance entitlements or other benefits payable to directors, officers or other senior management of the Company, enter into any key employee retention plans or make any Bonus Payments other than in the ordinary course, (B) enter into or materially modify any severance or similar agreements, policies or arrangements with, or authorize any other form of material increase of compensation or any material increase of benefits payable to, or accelerate the vesting of any item of compensation of employee benefits with respect to, or (other than in the ordinary course of business) make any loan to, any director, officer or employee (or independent contractor) of the Company or make determinations under any benefit or other plans that are inconsistent with past practices, or (C) other than in the ordinary course of business, pay (other than pursuant to existing agreements) or incur any termination, severance, retention or similar payments to any employee, officer or director of the Company;
(v) transfer, lease, license or otherwise dispose of all or any material part of its property, assets or undertakings outside of the ordinary course;
(vi) (A) enter into any contract that, if entered into prior to the date hereof, would have been a Material Contract, or (B) modify or amend in any material respect, assign or terminate any Material Contract; or
(vii) pay, discharge, settle, satisfy, compromise, waive, assign or release any claims, liabilities or obligations (including any claims of Noteholders and any Noteholder litigation relating to the Recapitalization Transaction or otherwise) for an amount exceeding $1.0 million in the aggregate, other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements;
(h) to use commercially reasonable efforts to cause its current insurance policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(i) to promptly notify the Advisors of any claims threatened or brought against it which may be reasonably be expected to materially impede or delay the consummation of the Recapitalization Transaction or any material part thereof;
(j) from and after the date hereof and until the earlier of (x) two years from the date hereof, and (y) the date that the Supporting Noteholder and its Permitted Affiliate Transferees cease, in the aggregate, to beneficially own at least $50 million principal amount of Notes, not to (i) create, incur or otherwise cause or suffer to exist or become effective any Liens of any kind securing “Indebtedness” (as currently defined in the Indenture) upon or with respect to any property or assets of the Company or any of its subsidiaries, other than “Permitted Liens” (as currently defined in the Indenture) of the type referred to in clauses (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), (18) or (19) of such “Permitted Liens” definition (collectively, “Ordinary Course Liens”) or to secure Indebtedness incurred under the Credit Facility pursuant to clause (10) of such “Permitted Liens” definition, or (ii) increase the total amount available to be borrowed under the Credit Facility, in each case without the prior written consent of the Supporting Noteholder; provided, however, that from and after one year from the date hereofof the filing of the Prospectus in each Canadian Jurisdiction. In addition, the covenants of and terms applicable to the Company may incur up to $15 million of additional “Indebtedness” (as currently defined described in the Indenture) permitted by Section 4.09(x) Agency Agreement are hereby incorporated into this section as additional covenants of the Indenture (and incur Liens in respect thereof pursuant to clause (16) of such “Permitted Liens” definition) if the proceeds therefrom are used exclusively for working capital purposes; and
(k) to comply with the Reimbursement Agreement (and, for purposes of the Reimbursement Agreement, only notice of termination of this Support Agreement that is given in accordance with Section 12 shall constitute notice by a Party to the other Party that it will not proceed with the “Proposed Transaction” (within the meaning of the Reimbursement Agreement))Company.
Appears in 1 contract
Samples: Subscription Agreement (Voice Mobility International Inc)
Company’s Covenants. The Subject to, and in consideration of, the matters set forth in Section 4 above, the Company hereby acknowledges, covenants and agrees:
(a) to take all reasonable actions necessary to implement the Recapitalization Transaction Terms (including on the terms of this Support Agreement and the Plan)timetable set forth herein;
(b) to (i) apply to the Court pursuant to section 192 of the CBCA and prepare, file and diligently pursue an application for the Interim Order, (ii) afford the Supporting Noteholder and its Advisors a reasonable opportunity to review and comment on drafts of the Circular (and, in any event, at least five Business Days in advance of circulating the Circular to Noteholders) and accept reasonable comments made by them, and (iii) include in the Circular the recommendation of the Board that Noteholders vote in favour of the Plan and a copy of the Fairness Opinion;
(c) to use commercially reasonable efforts to pursue and support the Recapitalization Transaction and to achieve the following timeline (which timeline may be extended at any time as agreed in writing by the Company and the Supporting NoteholderMajority Consenting Debentureholders):
(i) Court approval if, at the election of the Company, the Transaction is to be implemented pursuant to a CBCA Plan:
(A) filing the application in the CBCA Proceedings seeking the Interim Order shall have been obtained by no later than March 10, 2017;
(ii) the Meeting shall have been convened by no later than April 18, 20172019;
(iiiB) implement the Plan shall have been approved by the Court Transaction pursuant to the Final Order by no later than April 28, 2017CBCA Plan on or prior to the Outside Date; andor
(ivii) if, at the Recapitalization election of the Company, the Transaction shall have been is to be implemented pursuant to a Debenture Amendment:
(A) implement the Plan Transaction pursuant to the Debenture Amendment on or prior to the Outside Date;
(c) not to, directly or indirectly, without the consent of the Majority Consenting Debentureholders, modify the Transaction, in whole or in part, in a manner that is inconsistent with the terms of this Agreement, or take any action that is materially inconsistent with, or is intended or is likely to interfere with or delay the consummation of, the Transaction, except as required by applicable Law or by any stock exchange rules, by any other regulatory authority having jurisdiction over the Company or by any court of competent jurisdiction;
(d) to provide draft copies of all motions take reasonable actions to oppose and object to any action by an Person seeking to object to, delay, impede or applications and take any other material documents that the Company intends action to file interfere with the Court with respect to approval or implementation of the Recapitalization Transaction and the Plan to the Advisors as soon as practicable prior to filing such materials with the Court, and all such filings shall be acceptable to the Supporting Noteholder, acting reasonablyTransaction;
(e) no earlier than to promptly notify the time at which the Interim Order is granted and no later than 8:00 a.m. (prevailing Eastern time) on the Business Day following the granting Consenting Debentureholders and/or their advisors of the Interim Orderany material breach of a representation, to issue a press release warranty or other public disclosure that discloses the material provisions of the Recapitalization Transaction and that is acceptable to covenant by the Company and under this Agreement which would result in a failure to satisfy the Supporting Noteholder, each acting reasonably, and such press release may refer to the “Disclosure Information” contained conditions set out in the “Cleansing Materials” (each as defined in the Confidentiality Section 8 of this Agreement) for any part of such disclosure; and the Parties further agree that the “Disclosure Time” (as defined in and for purposes of the Confidentiality Agreement) shall be the date and time the Interim Order is granted (or, if earlier, the date and time this Support Agreement is terminated in accordance with Section 12) and that the Cleansing Materials shall not be filed or otherwise publicly disclosed in advance thereof unless otherwise required by Law;and
(f) to comply with the terms and covenants of the Indenture other than any terms and covenants that would restrict or impede (i) the commencement and/or continuation of the CBCA Proceedings in conformity with this Support Agreement; and (ii) the pursuit of the Recapitalization Transaction, including the entering into of any related documents, in conformity with this Support Agreement;
(g) except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement, or is required by applicable Law, to operate its business in the ordinary course of business, and, without limiting the generality of the foregoing, the Company shall not, directly or indirectly, except as is otherwise expressly contemplated by the Recapitalization Transaction Terms and this Support Agreement or as is required by applicable Law:
(i) (A) amend or propose to amend the articles, by-laws or other constating documents of the Company or the terms of any securities of the Company or split, combine or reclassify any outstanding Company Shares or undertake any capital reorganization or reduction of capital or any combination thereof, (B) redeem, purchase or offer to purchase any Company Shares or other securities of the Company, (C) issue, grant, sell, distribute, dividend or authorize, or agree to issue, grant, sell, distribute, dividend or authorize, any shares of the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the Company, (D) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any share of the Company, (E) reduce the stated capital of the shares of the Company, or (F) make any other material changes to the Company’s corporate or capital structure;
(ii) (A) prepay, redeem prior to maturity, defease, refinance, repurchase or make other prepayments in respect of its funded indebtedness, or refinance or otherwise materially amend any material portion of its existing indebtedness, (B) make any other payments (other than interest payments as and when due in the ordinary course) or pay any fees of any kind in respect of any indebtedness for borrowed money including any consent, waiver or default fee, (C) create, incur, issue, assume, guarantee or otherwise become directly liable with respect to indebtedness of any kind whatsoever (except for indebtedness that is incurred in the ordinary course of business that is not material), or (D) create, incur, assume or otherwise cause or suffer to exist or become effective any new Lien on, over or against any of its assets or property (except for any Lien that is incurred in the ordinary course of business or other Ordinary Course Lien, in each case where such Lien is not to secure indebtedness for borrowed money except as permitted by Section 5(j));
(iii) (A) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or commence, or consent to, Insolvency Proceedings, (B) reorganize, amalgamate, consolidate or merge the Company with or into, or sell all or substantially all of its assets to, any other person, or (C) acquire or agree to acquire (by acquisition of shares or assets or otherwise) any person, or make any investment either by purchase of shares or securities, contributions of capital or property transfer in or to any other person, where such acquisitions and investments have a value greater than $1.0 million in the aggregate;
(iv) (A) materially increase compensation or severance entitlements or other benefits payable to directors, officers or other senior management of the Company, enter into any key employee retention plans or make any Bonus Payments other than in the ordinary course, (B) enter into or materially modify any severance or similar agreements, policies or arrangements with, or authorize any other form of material increase of compensation or any material increase of benefits payable to, or accelerate the vesting of any item of compensation of employee benefits with respect to, or (other than in the ordinary course of business) make any loan to, any director, officer or employee (or independent contractor) of the Company or make determinations under any benefit or other plans that are inconsistent with past practices, or (C) other than in the ordinary course of business, pay (other than pursuant to existing agreements) or incur any termination, severance, retention or similar payments to any employee, officer or director of the Company;
(v) transfer, lease, license or otherwise dispose of all or any material part of its property, assets or undertakings outside of the ordinary course;
(vi) (A) enter into any contract that, if entered into prior to the date hereof, would have been a Material Contract, or (B) modify or amend in any material respect, assign or terminate any Material Contract; or
(vii) pay, discharge, settle, satisfy, compromise, waive, assign or release any claims, liabilities or obligations (including any claims of Noteholders and any Noteholder litigation relating to the Recapitalization Transaction or otherwise) for an amount exceeding $1.0 million in the aggregate, other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements;
(h) to use commercially reasonable efforts to cause its current insurance policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(i) to promptly notify the Advisors Consenting Debentureholders and/or their advisors of any claims threatened or brought against it which may be reasonably be expected to materially impede or delay the consummation of the Recapitalization Transaction or any material part thereof;
(j) from and after the date hereof and until the earlier of (x) two years from the date hereof, and (y) the date that the Supporting Noteholder and its Permitted Affiliate Transferees cease, in the aggregate, to beneficially own at least $50 million principal amount of Notes, not to (i) create, incur or otherwise cause or suffer to exist or become effective any Liens of any kind securing “Indebtedness” (as currently defined in the Indenture) upon or with respect to any property or assets of the Company or any of its subsidiaries, other than “Permitted Liens” (as currently defined in the Indenture) of the type referred to in clauses (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), (18) or (19) of such “Permitted Liens” definition (collectively, “Ordinary Course Liens”) or to secure Indebtedness incurred under the Credit Facility pursuant to clause (10) of such “Permitted Liens” definition, or (ii) increase the total amount available to be borrowed under the Credit Facility, in each case without the prior written consent of the Supporting Noteholder; provided, however, that from and after one year from the date hereof, the Company may incur up to $15 million of additional “Indebtedness” (as currently defined in the Indenture) permitted by Section 4.09(x) of the Indenture (and incur Liens in respect thereof pursuant to clause (16) of such “Permitted Liens” definition) if the proceeds therefrom are used exclusively for working capital purposes; and
(k) to comply with the Reimbursement Agreement (and, for purposes of the Reimbursement Agreement, only notice of termination of this Support Agreement that is given in accordance with Section 12 shall constitute notice by a Party to the other Party that it will not proceed with the “Proposed Transaction” (within the meaning of the Reimbursement Agreement)).
Appears in 1 contract
Samples: Consent and Support Agreement (Bellatrix Exploration Ltd.)
