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Common use of Company’s Obligations to Support the Transaction Clause in Contracts

Company’s Obligations to Support the Transaction. a. Subject to the terms and conditions of this Agreement and the exhibits attached hereto, the Company shall, subject to its applicable fiduciary duties and during the RSA Time Period: (i) support the Transaction within the timeframes outlined herein and in the Definitive Documents, as applicable, and on terms and conditions consistent in all respects with this Agreement and the Plan; (ii) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction contemplated in this Agreement, support and take all steps reasonably necessary and desirable to address such impediment; (iii) obtain any and all required regulatory and/or third-party approvals for the Transaction as expeditiously as practicable (if any, and to the extent such approvals are not overridden by the Bankruptcy Code); (iv) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Transaction as contemplated by this Agreement; (v) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Transaction (including, if applicable, the filing of timely filed objections or written responses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Transaction; (vi) comply with each Milestone set forth in this Agreement; (vii) not later than 24 hours after receipt, provide copies of any term sheets, offers, letters, or other proposals received by the Company or its advisors, whether solicited or unsolicited, for, in connection with, or related to any commitment to provide ABL financing, cash flow revolver, or other revolving credit or similar working capital financing to the Reorganized Company (the “ABL Financing Commitment”), and provide, upon reasonable request from advisors to the Ad Hoc Group, detailed updates regarding the status of the Company’s process for obtaining an ABL Financing Commitment; (viii) not later than 6:00 p.m. (prevailing New York City time) on each Wednesday, beginning with the week ended October 9th, provide a 13-Week Forecast covering the 13-week period beginning on such calendar week, together with a variance report (a “Variance Report”) in form and level of detail reasonably satisfactory to the Required Consenting Noteholders and their advisors reconciling the applicable 13-Week Forecast to the actual sources and uses of cash for the rolling four-week period (or, if a four-week period has not elapsed since the Agreement Effective Date, the cumulative period since the Agreement Effective Date) most recently ended on the last Friday prior to the delivery of each Variance Report (a) showing, for such periods, actual results for the following items: (i) cash receipts, (ii) operating disbursements, (iii) payroll, (iv) capital expenditures, (v) operating cash flow, (vi) non-operating disbursements and (vii) net cash flow; (b) noting a line-by-line reconciliation of variances from values set forth for such periods in the relevant 13-Week Forecast; and (c) providing an explanation for all material variances; (ix) at its own expense, facilitate and hold calls between the Consenting Noteholders, their advisors, and members of the Company’s executive management team and/or their advisors not less than on a bi-weekly basis; (x) not take any action that is inconsistent with, or is intended or is reasonably likely to interfere with or impede or delay consummation of, the Transaction; (xi) not file or otherwise pursue a chapter 11 plan or any other Definitive Document that is inconsistent with the terms of this Agreement and the Plan; (xii) except as contemplated by this Agreement or any Definitive Documents, not (a) operate its business outside the ordinary course, taking into account the Transaction, without the consent of the Consenting Noteholders or (b) transfer any material asset or right of the Company or any material asset or right used in the business of the Company to any person or entity outside the ordinary course of business; (xiii) maintain the good standing and legal existence of each Company entity under the Laws of the state in which it is incorporated, organized or formed; (xiv) not grant or agree to grant any additional or any increase in the wages, salary, bonus, commissions, retirement benefits, pension, severance or other compensation or benefits (including in the form of any vested or unvested equity interests of any other kind or nature) of any director, manager, officer or employee of, or any consultant or advisor that is retained or engaged by the Company except in the ordinary course of business, or grant or agree to grant, pursuant to a key employee retention or incentive plan or other similar agreement, any additional or any increase in the wages, salary, bonus or other compensation; (xv) not enter into, adopt or establish any new compensation or benefit plans or arrangements (including employment agreements and any retention, success or other bonus plans), or amend or terminate any existing compensation or benefit plans or arrangements (including employment agreements); (xvi) not make or change any tax election (including, with respect to any Company entity that is treated as a partnership or disregarded entity for U.S. federal income tax purposes, an election to be treated as a corporation for U.S. federal income tax purposes), file any amended U.S. federal or state or local income tax return, enter into any closing agreement with respect to material taxes, consent to any extension or waiver of the limitations period applicable to any material tax claim or assessment, change any accounting methods, practices or periods for tax purposes, make or request any tax ruling, enter into any tax sharing or similar agreement or arrangement, or settle any tax material claim or assessment, or take or fail to take any action outside the ordinary course of business (except as contemplated by this Agreement or any Definitive Documents) if such action or failure to act would cause a change to the tax status of the Company or be expected to cause, individually or in the aggregate, a material adverse tax consequence to the Company, in each case, unless the Company has received the consent of the Required Consenting Noteholders; (xvii) not allow or permit any of their respective material permits to lapse, expire, terminate or be revoked, suspended or modified, or to suffer any material fine, penalty or other sanctions related to any of their respective permits; (xviii) other than in the ordinary course of business, not (A) enter into any contract which, if existing as of the date of this Agreement, would constitute a material contract had it been entered into prior to the date of this Agreement, or (B) amend, supplement, modify or terminate any material contract; (xix) not engage in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness or other similar transaction in each case outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof; (xx) not enter into, amend, or terminate any engagement letter or retention agreement with any professional, advisor, attorney, agent, banker, or other retained professional, without the consent of the Required Consenting Noteholders, which consent shall not be unreasonably withheld, conditioned or delayed; (xxi) not pay any discretionary fee payable under that certain engagement letter between Ducera Partners LLC and Xxxxxxx Xxxx & Company L.L.C. and Xxxxxx & Xxxxxxx LLP, dated as of May 21, 2020, without the consent of the Required Consenting Noteholders; (xxii) (i) on the date hereof, pay all reasonable and documented fees and expenses of Xxxxx Xxxx & Xxxxxxxx LLP, Evercore Group L.L.C., Xxxxxx Xxxxxx LLP, and any other advisors retained by the Ad Hoc Group (collectively, the “Restructuring Expenses”), accrued but unpaid as of such date (to the extent invoiced), and fund or replenish, as the case may be, any retainers reasonably requested by any of the foregoing professionals as of such date; (ii) after the Agreement Effective Date, pay all accrued but unpaid Restructuring Expenses on a regular and continuing basis (to the extent invoiced); and (iii) on the Plan Effective Date, so long as this Agreement has not been terminated as to all Parties, pay all accrued and unpaid Restructuring Expenses incurred up to (and including) the Plan Effective Date (to the extent invoiced), without any requirement for Bankruptcy Court review or further Bankruptcy Court order; (xxiii) as soon as reasonably practicable, notify counsel to the Ad Hoc Group of any governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) that would prevent, hinder, or delay the consummation of the transactions contemplated in this Agreement or the Plan by furnishing written notice to counsel to the Ad Hoc Group within two (2) business days of actual knowledge of such event; (xxiv) as soon as reasonably practicable, notify counsel to the Ad Hoc Group of any material breach by the Company in respect of any of the obligations, representations, warranties, or covenants set forth in this Agreement by furnishing written notice to counsel to the Ad Hoc Group within three (3) business days of actual knowledge of such breach; (xxv) other than in connection with or in furtherance of the Transaction, not actively seek, solicit, or support any (i) competing plan of reorganization or other financial and/or corporate restructuring of the Company, (ii) issuance, sale or other disposition of any equity or debt interests, or any material assets, of the Company, or (iii) merger, consolidation, business combination, liquidation, recapitalization, refinancing or similar transaction involving the Company (each, an “Alternative Transaction”), and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction that the boards of directors, members, or managers (as applicable) of the Company, determine in their good-faith judgment provides a higher or better economic recovery to the Company’s creditors than that set forth in this Agreement and such Alternative Transaction is from a proponent that the boards of directors, members, or managers (as applicable) of the Company have reasonably determined is capable of timely consummating such Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Ad Hoc Group of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved; provided that such information remains confidential and is treated on a “professional’s eyes only” basis in accordance with the confidentiality agreement between the Company and counsel to the Ad Hoc Group; and (xxvi) in the event that the SPN Filing Entities enter into any DIP financing agreement, deliver to the legal and financial advisors to the Ad Hoc Group any notices, reports, or other deliverables required to be delivered to the agent or lenders under such DIP financing agreement at the time such notices, reports, or other deliverables are required to be delivered under such DIP financing agreement.

Appears in 2 contracts

Samples: Restructuring Support Agreement (Superior Energy Services Inc), Restructuring Support Agreement (Superior Energy Services Inc)

Company’s Obligations to Support the Transaction. a. Subject to the terms and conditions of this Agreement and the exhibits attached hereto, the Company shall, subject to its applicable fiduciary duties and during the RSA Time Period: (i) support the Transaction within the timeframes outlined herein and in the Definitive Documents, as applicable, and on terms and conditions consistent in all respects with this Agreement and the PlanPlan Term Sheet; (ii) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction contemplated in this Agreement, support and take all steps reasonably necessary and desirable to address such impediment; (iii) obtain any and all required regulatory and/or third-party approvals for the Transaction as expeditiously as practicable (if any, and to the extent such approvals are not overridden by the Bankruptcy Code); (iv) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Transaction as contemplated by this Agreement; (v) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Transaction (including, if applicable, the filing of timely filed objections or written responses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Transaction; (vi) comply with each Milestone set forth in this Agreement; (vii) not later than 24 hours after receipt, provide copies of any term sheets, offers, letters, or other proposals received by the Company or its advisors, whether solicited or unsolicited, for, in connection with, or related to any commitment to provide ABL financing, cash flow revolver, or other revolving credit or similar working capital financing to, in the event that the SplitCo Election is made, Reorganized NAM and Reorganized RemainCo, and, in the event that the SplitCo Election is not made, to the Reorganized Company (the “ABL Financing Commitment”), and provide, upon reasonable request from advisors to the Ad Hoc Group, detailed updates regarding the status of the Company’s process for obtaining an ABL Financing Commitment; (viii) not later than 6:00 p.m. (prevailing New York City time) on each Wednesday, beginning with the week ended October 9th, provide a 13-Week Forecast covering the 13-week period beginning on such calendar week, together with a variance report (a “Variance Report”) in form and level of detail reasonably satisfactory to the Required Consenting Noteholders and their advisors reconciling the applicable 13-Week Forecast to the actual sources and uses of cash for the rolling four-week period (or, if a four-week period has not elapsed since the Agreement Effective Date, the cumulative period since the Agreement Effective Date) most recently ended on the last Friday prior to the delivery of each Variance Report (a) showing, for such periods, actual results for the following items: (i) cash receipts, (ii) operating disbursements, (iii) payroll, (iv) capital expenditures, (v) operating cash flow, (vi) non-operating disbursements and (vii) net cash flow; (b) noting a line-by-line reconciliation of variances from values set forth for such periods in the relevant 13-Week Forecast; and (c) providing an explanation for all material variances; (ix) at its own expense, facilitate and hold calls between the Consenting Noteholders, their advisors, and members of the Company’s executive management team and/or their advisors not less than on a bi-weekly basis; (x) not take any action that is inconsistent with, or is intended or is reasonably likely to interfere with or impede or delay consummation of, the Transaction; (xi) not file or otherwise pursue a chapter 11 plan or any other Definitive Document that is inconsistent with the terms of this Agreement and the PlanPlan Term Sheet; (xii) except as contemplated by this Agreement or any Definitive Documents, not (a) operate its business outside the ordinary course, taking into account the Transaction, without the consent of the Consenting Noteholders or (b) transfer any material asset or right of the Company or any material asset or right used in the business of the Company to any person or entity outside the ordinary course of business; (xiii) maintain the good standing and legal existence of each Company entity under the Laws of the state in which it is incorporated, organized or formed; (xiv) not grant or agree to grant any additional or any increase in the wages, salary, bonus, commissions, retirement benefits, pension, severance or other compensation or benefits (including in the form of any vested or unvested equity interests of any other kind or nature) of any director, manager, officer or employee of, or any consultant or advisor that is retained or engaged by the Company except in the ordinary course of business, or grant or agree to grant, pursuant to a key employee retention or incentive plan or other similar agreement, any additional or any increase in the wages, salary, bonus or other compensation; (xv) not enter into, adopt or establish any new compensation or benefit plans or arrangements (including employment agreements and any retention, success or other bonus plans), or amend or terminate any existing compensation or benefit plans or arrangements (including employment agreements); (xvi) not make or change any tax election (including, with respect to any Company entity that is treated as a partnership or disregarded entity for U.S. federal income tax purposes, an election to be treated as a corporation for U.S. federal income tax purposes), file any amended U.S. federal or state or local income tax return, enter into any closing agreement with respect to material taxes, consent to any extension or waiver of the limitations period applicable to any material tax claim or assessment, change any accounting methods, practices or periods for tax purposes, make or request any tax ruling, enter into any tax sharing or similar agreement or arrangement, or settle any tax material claim or assessment, or take or fail to take any action outside the ordinary course of business (except as contemplated by this Agreement or any Definitive Documents) if such action or failure to act would cause a change to the tax status of the Company or be expected to cause, individually or in the aggregate, a material adverse tax consequence to the Company, in each case, unless the Company has received the consent of the Required Consenting Noteholders; (xvii) not allow or permit any of their respective material permits to lapse, expire, terminate or be revoked, suspended or modified, or to suffer any material fine, penalty or other sanctions related to any of their respective permits; (xviii) other than in the ordinary course of business, not (A) enter into any contract which, if existing as of the date of this Agreement, would constitute a material contract had it been entered into prior to the date of this Agreement, or (B) amend, supplement, modify or terminate any material contract; (xix) not engage in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness or other similar transaction in each case outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof; (xx) not enter into, amend, or terminate any engagement letter or retention agreement with any professional, advisor, attorney, agent, banker, or other retained professional, without the consent of the Required Consenting Noteholders, which consent shall not be unreasonably withheld, conditioned or delayed; (xxi) not pay any discretionary fee payable under that certain engagement letter between Ducera Partners LLC and Xxxxxxx Xxxx & Company L.L.C. and Xxxxxx & Xxxxxxx LLP, dated as of May 21, 2020, without the consent of the Required Consenting Noteholders; (xxii) (i) on the date hereofAgreement Effective Date, pay all reasonable and documented fees and expenses of Xxxxx Xxxx & Xxxxxxxx LLP, Evercore Group L.L.C., Xxxxxx Xxxxxx LLPany local counsel retained by the Ad Hoc Group, and any other advisors retained by the Ad Hoc Group (collectively, the “Restructuring Expenses”), accrued but unpaid as of such date (to the extent invoiced), and fund or replenish, as the case may be, any retainers reasonably requested by any of the foregoing professionals as of such date; (ii) after the Agreement Effective Date, pay all accrued but unpaid Restructuring Expenses on a regular and continuing basis (to the extent invoiced); and (iii) on the Plan Effective Date, so long as this Agreement has not been terminated as to all Parties, pay all accrued and unpaid Restructuring Expenses incurred up to (and including) the Plan Effective Date (to the extent invoiced), without any requirement for Bankruptcy Court review or further Bankruptcy Court order; (xxiii) as soon as reasonably practicable, notify counsel to the Ad Hoc Group of any governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) that would prevent, hinder, or delay the consummation of the transactions contemplated in this Agreement or the Plan by furnishing written notice to counsel to the Ad Hoc Group within two (2) business days of actual knowledge of such event; (xxiv) as soon as reasonably practicable, notify counsel to the Ad Hoc Group of any material breach by the Company in respect of any of the obligations, representations, warranties, or covenants set forth in this Agreement by furnishing written notice to counsel to the Ad Hoc Group within three (3) business days of actual knowledge of such breach; (xxv) other than in connection with or in furtherance of the Transaction, not actively seek, solicit, or support any (i) competing plan of reorganization or other financial and/or corporate restructuring of the Company, (ii) issuance, sale or other disposition of any equity or debt interests, or any material assets, of the Company, or (iii) merger, consolidation, business combination, liquidation, recapitalization, refinancing or similar transaction involving the Company (each, an “Alternative Transaction”), and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction that the boards of directors, members, or managers (as applicable) of the Company, determine in their good-faith judgment provides a higher or better economic recovery to the Company’s creditors than that set forth in this Agreement and such Alternative Transaction is from a proponent that the boards of directors, members, or managers (as applicable) of the Company have reasonably determined is capable of timely consummating such Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Ad Hoc Group of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved; provided that such information remains confidential and is treated on a “professional’s eyes only” basis in accordance with the confidentiality agreement between the Company and counsel to the Ad Hoc Group; and (xxvi) in the event that the SPN Filing Entities enter into any DIP financing agreement, deliver to the legal and financial advisors to the Ad Hoc Group any notices, reports, or other deliverables required to be delivered to the agent or lenders under such DIP financing agreement at the time such notices, reports, or other deliverables are required to be delivered under such DIP financing agreement.

Appears in 1 contract

Samples: Restructuring Support Agreement (Superior Energy Services Inc)

Company’s Obligations to Support the Transaction. a. Subject to the terms and conditions of this Agreement and the exhibits attached hereto, the Company shall, subject to its applicable fiduciary duties and during agrees that for the RSA Time Periodduration of the Support Period it will: (i) support and take all steps reasonably necessary, or reasonably requested by the Consenting Creditors, to consummate the Transaction within pursuant to the timeframes outlined herein Plan (including the entry of the Combined Disclosure Statement and in the Definitive Documents, Confirmation Order) as applicable, and expeditiously as practicable under applicable law on terms and conditions consistent in all respects with this Agreement and in accordance with the PlanMilestones (as defined below); (ii) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction contemplated in this Agreementherein, support and take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions (consistent with the terms of this Agreement and the Plan Term Sheet) to address any such impediment, in each case, in a manner acceptable to the RBL Agent and the Required Consenting Noteholders, as applicable; (iii) obtain any and all required regulatory and/or governmental, regulatory, and third-party approvals for to effectuate the Transaction as expeditiously as practicable (if any, and to the extent such approvals are not overridden by the Bankruptcy Code); (iv) negotiate in good faith prosecute and use commercially reasonable efforts to execute and deliver the Definitive Documents defend any objections and any other required agreements appeals by parties in interest relating to effectuate the Transaction, including without limitation, the “first day” and consummate “second day” motions and orders, the Transaction as contemplated by this AgreementCash Collateral Orders, the Hedging Order, and the Combined Disclosure Statement and Confirmation Order; (v) actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Transaction (including, if applicable, the filing of timely filed objections or written responses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate implementation of the Transaction; (vi) comply with each Milestone set forth in this Agreement; (vii) not later than 24 hours after receipt, provide copies of any term sheets, offers, letters, or other proposals received by the Company or its advisors, whether solicited or unsolicited, for, in connection with, or related to any commitment to provide ABL financing, cash flow revolver, or other revolving credit or similar working capital financing to the Reorganized Company (the “ABL Financing Commitment”), and provide, upon reasonable request from advisors to the Ad Hoc Group, detailed updates regarding the status of the Company’s process for obtaining an ABL Financing Commitment; (viii) not later than 6:00 p.m. (prevailing New York City time) on each Wednesday, beginning with the week ended October 9th, provide a 13-Week Forecast covering the 13-week period beginning on such calendar week, together with a variance report (a “Variance Report”) in form and level of detail reasonably satisfactory to the Required Consenting Noteholders and their advisors reconciling the applicable 13-Week Forecast to the actual sources and uses of cash for the rolling four-week period (or, if a four-week period has not elapsed since the Agreement Effective Date, the cumulative period since the Agreement Effective Date) most recently ended on the last Friday prior to the delivery of each Variance Report (a) showing, for such periods, actual results for the following items: (i) cash receipts, (ii) operating disbursements, (iii) payroll, (iv) capital expenditures, (v) operating cash flow, (vi) non-operating disbursements and (vii) net cash flow; (b) noting a line-by-line reconciliation of variances from values set forth for such periods in the relevant 13-Week Forecast; and (c) providing an explanation for all material variances; (ix) at its own expense, facilitate and hold calls between the Consenting Noteholders, their advisors, and members of the Company’s executive management team and/or their advisors not less than on a bi-weekly basis; (x) not take any action that is inconsistent with, or is intended or is reasonably likely to interfere with or impede or delay consummation of, the Transaction; (xivi) not file or otherwise pursue a chapter 11 plan or any other Definitive Document that is inconsistent with the terms of this Agreement and the PlanPlan Term Sheet; (xiivii) provide draft copies of all orders, motions or applications related to the Transaction, including all “first day” and “second day” motions and orders, the Plan, the Disclosure Statement, any proposed amendments or supplements to the Plan, form of ballots, and other solicitation materials in respect of the Plan and proposed Combined Disclosure Statement and Confirmation Order, and any other Definitive Documents the Company intends to file with the Bankruptcy Court to the RBL Agent’s counsel (Linklaters LLP) and counsel to the ad hoc committee of certain Noteholders (the “Ad Hoc Noteholders Group”), if reasonably practicable, at least two (2) business days prior to the date when the Company intends to file any such motion or application (provided that if delivery of such motions, orders, or materials at least two (2) business days in advance is not reasonably practicable prior to filing, such motion, order, or application shall be delivered as soon as reasonably practicable prior to filing), and consult in good faith with the RBL Agent’s counsel and the Ad Hoc Noteholders Group’s counsel regarding, and consider in good faith any changes proposed by the RBL Agent’s counsel and the Ad Hoc Noteholders Group’s counsel with respect to, the form and substance of any such proposed filing with the Bankruptcy Court; (viii) timely file with the Bankruptcy Court a written objection to any motion filed with the Bankruptcy Court seeking the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (C) dismissing any of the Chapter 11 Cases, or (D) modifying or terminating the Company’s exclusive right to file or solicit acceptances of a plan of reorganization; (ix) except as contemplated by this Agreement or any Definitive Documents, not (aA) operate its businesses without material change in such operations and (B) not dispose of any material assets (unless in such instance, the RBL Agent and the Required Consenting Noteholders have consented thereto in writing, such consent not to be unreasonably withheld) in accordance with its business outside judgment; (x) unless the ordinary courseRBL Agent and the Required Consenting Noteholders provide written consent otherwise (such consent not to be unreasonably withheld), taking into account use commercially reasonable efforts to preserve in all material respects its current business organizations, keep available the services of its current officers and material employees (in each case, other than voluntary resignations, terminations for cause, or terminations consistent with applicable fiduciary duties) and preserve in all material respects its relationships with customers, sales representatives, suppliers, distributors, and others, in each case, having material business dealings with the Company (other than terminations for cause or consistent with applicable fiduciary duties); (xi) provide written notice within one (1) business day to the RBL Agent and counsel to the Ad Hoc Noteholders Group of any failure of any Company Party (of which the Company has actual knowledge) to comply with or satisfy, in any material respect, any covenant, condition or agreement hereunder; (xii) within one (1) business day of obtaining knowledge thereof, provide written notice to the RBL Agent and counsel to the Ad Hoc Noteholders Group of any: (A) occurrence, or failure to occur, of any event, of which the Company has actual knowledge, which could reasonably be expected to cause any covenant of the Company contained in this Agreement not to be satisfied in any respect; (B) receipt by the Company of any notice from any governmental body in connection with this Agreement or the Transaction, without ; and (C) receipt of any notice from any party alleging that the consent of such party is or may be required in connection with the Consenting Noteholders or (b) transfer any material asset or right of transactions contemplated by the Company or any material asset or right used in the business of the Company to any person or entity outside the ordinary course of businessTransaction; (xiii) maintain promptly pay (but in no event later than three (3) business days after submission of summary invoices therefor) all reasonable and documented prepetition and postpetition fees and expenses of (A) the good standing RBL Agent, including the fees, charges and legal existence disbursements of each Linklaters LLP, as counsel, Xxxxxxxxx LLP, as local and real estate counsel, and Opportune LLP, as financial advisor, and (B) the advisors to the Ad Hoc Noteholders Group, including the fees, charges and disbursements of Stroock & Stroock & Xxxxx LLP, as counsel, Xxxx Xxxxxx, P.C., as co-counsel and local counsel, and Xxxxxxxx Inc., as financial advisor (collectively, the “Restructuring Expenses”), and unless otherwise agreed by the Company entity under and the Laws applicable firm, the Company shall (i) on the Agreement Effective Date, pay (x) all Restructuring Expenses accrued but unpaid as of such date (to the extent invoiced) and (y) fund or replenish, as the case may be, any retainers reasonably requested by any of the state foregoing professionals; and (ii) on the Plan Effective Date, pay all accrued and unpaid Restructuring Expenses incurred up to (and including) the Plan Effective Date, without any requirement for individual time detail, Bankruptcy Court review or further Bankruptcy Court order; provided, that, notwithstanding the foregoing, nothing herein shall affect or limit any obligations of the Company to pay the Restructuring Expenses as provided in which it is incorporated, organized or formedthe Cash Collateral Orders; (xiv) not grant or agree as soon as reasonably practicable, notify the RBL Agent and counsel to grant any additional or any increase in the wages, salary, bonus, commissions, retirement benefits, pension, severance or other compensation or benefits (including in the form Ad Hoc Noteholders Group of any vested governmental or unvested equity interests third-party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) that could reasonably be expected to prevent, hinder, or delay the consummation of the transactions contemplated by this Agreement or the Plan of which the Company had actual knowledge by furnishing written notice to the RBL Agent and counsel to the Ad Hoc Noteholders Group within one (1) business day of actual knowledge of such event; (xv) provide to counsel for the RBL Agent and counsel for the Ad Hoc Noteholders Group, within two (2) business days of receipt, a copy of any other kind or nature) of any directorwritten offer, managerproposal, officer or employee ofterm sheet, or any consultant or advisor that is retained or engaged other indication of interest received by the Company except for the purchase of any Oil and Gas Properties (other than Hydrocarbons in the ordinary course of business, or grant or agree to grant, pursuant to a key employee retention or incentive plan or other similar agreement, any additional ) (each as defined in the RBL Credit Agreement) or any increase in other assets of the wages, salary, bonus or other compensation; (xv) not enter into, adopt or establish any new compensation or benefit plans or arrangements (including employment agreements and any retention, success or other bonus plans), or amend or terminate any existing compensation or benefit plans or arrangements (including employment agreements)Company of more than de minimis value; (xvi) use commercially reasonable efforts to seek additional support for the Transaction from their other material stakeholders not make or change any tax election party hereto and to the extent reasonably necessary to consummate the Transaction and coordinate its activities with the other Parties hereto (includingsubject to the terms hereof) in respect of all matters concerning the implementation and consummation of the Transaction; (xvii) cooperate, and cause each Xxxxxxxx Subsidiary and affiliate, and each of their respective, officers, directors, employees, and advisors to cooperate, with respect (A) the respective advisors to the RBL Agent and Consenting Noteholders, in their review, analysis, and evaluation of the Company’s financial affairs, finances, financial conditions, business, and operations (including historical financial information and projections) and (B) the RBL Agent, the Consenting RBL Lenders, the Consenting Noteholders and their respective designees and advisors in furnishing information reasonably available to the Company as and when requested, or as soon thereafter as reasonably practicable, by the RBL Agent, the Consenting RBL Lenders, the Consenting Noteholders and their respective designees and advisors; provided, that such information shall be subject to any confidentiality agreements between the Company entity that is treated and the RBL Agent, the Consenting RBL Lenders, and the Consenting Noteholders, as a partnership or disregarded entity for U.S. federal income tax purposes, an election to be treated as a corporation for U.S. federal income tax purposes), applicable; (xviii) not file any amended U.S. federal or state or local income tax return, enter into any closing agreement with respect to material taxes, consent to any extension or waiver of the limitations period applicable to any material tax claim or assessment, change any accounting methods, practices or periods for tax purposes, make or request any tax ruling, enter into any tax sharing or similar agreement or arrangement, or settle any tax material claim or assessment, or take or fail to take any action outside the ordinary course of business (except as to the extent expressly contemplated by this Agreement the Plan or any Definitive Documentsthe Plan Term Sheet) if such action or failure to act would cause (prior to, on, or following, the Plan Effective Date) a change to the tax status of the any Company Party (or of any consolidated, combined or unitary group of which a Company Party is a member) or be expected to causecause (prior to, on, or following, the Plan Effective Date), individually or in the aggregate, a material adverse tax consequence to the CompanyCompany Parties, in each case, unless the Company has Parties have (A) received the written consent, not to be unreasonably withheld, conditioned or delayed, of the Required Consenting Noteholders, and (B) provided the RBL Agent no less than five (5) calendar days written notice of such action or their intention not to take such action; and (xix) other than as expressly contemplated by the Plan Term Sheet in connection with the Transaction, without the prior written consent of the Required Consenting Noteholders; Noteholders (xviiwhich shall not be unreasonably withheld, delayed, or conditioned), (A) not allow amend or permit propose to amend any of their respective material permits to lapse, expire, terminate or be revoked, suspended or modified, or to suffer any material fine, penalty or other sanctions related to any of their respective permits; organizational documents (xviii) other than in as may be reasonably necessary to implement the ordinary course of businessChapter 11 Cases), not (A) enter into any contract which, if existing as of the date of this Agreement, would constitute a material contract had it been entered into prior to the date of this Agreement, or (B) amendauthorize, supplementcreate or issue any additional equity interests in any of the Company Parties, modify or terminate redeem, purchase, acquire, declare any material contract; distribution on or make any distribution on any equity interests in any of the Company Parties, (xixC) not engage in any merger, consolidation, material acquisition, disposition, material acquisition, investment, dividend, incurrence of indebtedness liens or indebtedness, or other similar transaction in each case outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof; or (xxD) not enter intointo or adopt any new compensation or employee benefit arrangements (or amend, amendmodify, or terminate any engagement letter existing compensation or retention agreement with employee benefit arrangements). The Company Parties shall provide the RBL Agent prompt notice of any professional, advisor, attorney, agent, banker, or other retained professional, without request made to the Noteholders for consent of pursuant to this clause. b. Notwithstanding anything to the Required Consenting Noteholders, which consent shall not be unreasonably withheld, conditioned or delayed; (xxi) not pay any discretionary fee payable under that certain engagement letter between Ducera Partners LLC and Xxxxxxx Xxxx & Company L.L.C. and Xxxxxx & Xxxxxxx LLP, dated as of May 21, 2020, without the consent of the Required Consenting Noteholders; (xxii) (i) on the date hereof, pay all reasonable and documented fees and expenses of Xxxxx Xxxx & Xxxxxxxx LLP, Evercore Group L.L.C., Xxxxxx Xxxxxx LLP, and any other advisors retained by the Ad Hoc Group (collectivelycontrary herein, the “Restructuring Expenses”)Company shall be entitled, accrued but unpaid as of such date (at any time prior to the extent invoiced), and fund or replenish, as the case may be, any retainers reasonably requested by any of the foregoing professionals as of such date; (ii) after the Agreement Effective Date, pay all accrued but unpaid Restructuring Expenses on a regular and continuing basis (to the extent invoiced); and (iii) on the Plan Effective Date, so long as this Agreement has not been terminated as to all Parties, pay all accrued respond to and unpaid Restructuring Expenses incurred up to (and including) the Plan Effective Date (to the extent invoiced), without negotiate any requirement for Bankruptcy Court review offer or further Bankruptcy Court order; (xxiii) as soon as reasonably practicable, notify counsel to the Ad Hoc Group of any governmental or third party complaints, litigations, investigationsproposal from, or hearings (engage in any discussions or communications indicating that the same may be contemplated negotiations with, any person or threatened) that would prevent, hinder, entity concerning any actual or delay the consummation proposed transaction involving any or all of the transactions contemplated in this Agreement or the Plan by furnishing written notice to counsel to the Ad Hoc Group within two (2) business days of actual knowledge of such event; (xxiv) as soon as reasonably practicable, notify counsel to the Ad Hoc Group of any material breach by the Company in respect of any of the obligations, representations, warranties, or covenants set forth in this Agreement by furnishing written notice to counsel to the Ad Hoc Group within three (3) business days of actual knowledge of such breach; (xxv) other than in connection with or in furtherance of the Transaction, not actively seek, solicit, or support any (i) a competing plan of reorganization or other financial and/or or corporate restructuring of the Company, (ii) the issuance, sale or other disposition of any equity or debt interests, or any material assets, of the Company, or (iii) a merger, consolidation, business combination, liquidation, recapitalization, refinancing or similar transaction involving the Company (each, an “Alternative Transaction”), and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction that the boards of directors, members, or managers (as applicable) of the Company, determine in their good-faith judgment provides a higher or better economic recovery each case to the Companyextent Parent’s creditors than board of directors determines in good faith, based on advice of outside counsel, that set forth in this Agreement and such Alternative Transaction is from a proponent best maximizes value for the applicable Company Party and its stakeholders and that failure to pursue such Alternative Transaction would be inconsistent with the boards fiduciary duties of Parent’s board of directors. For the duration of the Support Period, membersthe Company shall deliver to the Consenting Creditors within one (1) business day all written communications delivered to or received by the Company (or any of its advisors) from any person or entity making, or managers (as applicable) of the Company have reasonably determined is capable of timely consummating such materially modifying, any offer or proposal concerning any actual or proposed Alternative Transaction, the Company willincluding, within 24 hours without limitation, copies of the receipt of such proposal or expression all written expressions of interest, notify counsel term sheets, letters of interest, offers, and proposed agreements related to the Ad Hoc Group foregoing to be received and maintained in accordance with any confidentiality obligations agreed to between the Company and each of the receipt thereofapplicable Consenting Creditors. c. Each Company Party acknowledges and agrees and shall not dispute that, with such notice to include after the material terms thereof, including the identity commencement of the person or group Chapter 11 Cases, the giving of persons involved; provided that such information remains confidential and is treated on a “professional’s eyes only” basis notice of termination of this Agreement by any Party solely in accordance with the confidentiality agreement between terms of this Agreement shall not be a violation of the automatic stay of section 362 of the Bankruptcy Code (and each Company and counsel Party hereby waives, to the Ad Hoc Groupfullest extent permitted by law, the applicability of the automatic stay to the giving of such notice); and (xxvi) in the event provided, however, that nothing herein shall prejudice any Party’s rights to argue that the SPN Filing Entities enter into any DIP financing agreement, deliver to giving of notice of default or termination was not proper under the legal and financial advisors to the Ad Hoc Group any notices, reports, or other deliverables required to be delivered to the agent or lenders under such DIP financing agreement at the time such notices, reports, or other deliverables are required to be delivered under such DIP financing agreementterms of this Agreement.

Appears in 1 contract

Samples: Restructuring Support Agreement (Lonestar Resources US Inc.)