Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof upon the occurrence and continuation of any of the following events: (a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such breach; (b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions; (c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; (d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement; (e) the Bankruptcy Court enters an order denying confirmation of the Plan; (f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases; (g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code; (h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet; (i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or (j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 6 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement, Restructuring Support Agreement (iHeartMedia, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (ai) with respect to the HPR Consenting Senior Creditors Noteholders, by the Required HPR Consenting Senior CreditorsNoteholders, and (bii) with respect to the HPR Consenting 2021 Noteholders Shareholders, by the Required HPR Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting SponsorsShareholders, in each case, case by the delivery to counsel to the Company Parties and the other Consenting Stakeholders of a written notice in accordance with Section 17.11 hereof 14.10 hereof, upon and at any time after the occurrence and continuation of any of the following events:events (each, a “Consenting Stakeholder Termination Event”) (unless waived in writing by, respectively, the Required HPR Consenting Noteholders or the Required HPR Consenting Shareholders, as applicable):
(a) the termination of this Agreement by any of the Company Parties;
(b) as to the Required HPR Consenting Noteholders and the Required HPR Consenting Shareholders, the Company publicly announces, or communicates in writing to any other Party, its intention not to support or pursue the Restructuring Transactions;
(c) any Company Party or the board of directors of any Company Party takes or refrains from taking any action in any respect on the basis of a determination made pursuant to Section 7.01 by the board of directors recommending not to support or pursue the Restructuring Transactions absent changes to the terms thereof;
(d) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (if susceptible to the extent curablecure) for ten eight (10) 8) Business Days after such terminating the Required HPR Consenting Stakeholders Noteholders or the Required HPR Consenting Shareholders, as applicable, transmit a written notice in accordance with Section 17.11 14.10 hereof detailing any such breach;
(be) as to the Required HPR Consenting Noteholders, the breach in any material respect by HPR Consenting Shareholders of any of the representations, warranties, or covenants of HPR Consenting Shareholders set forth in this Agreement, such that the non-breaching HPR Consenting Shareholders own or control less than 46% in aggregate amount of all of the outstanding common stock of the Company Parties and such breach remains uncured for eight (i) withdraw 8) Business Days after the Plan or (ii) publicly announce their intention not to support the Restructuring TransactionsRequired HPR Consenting Noteholders transmit a written notice in accordance with Section 14.10 hereof detailing any such breach;
(cf) the termination of the Merger Agreement by any Company Party determines, pursuant to Section 7.01, that a Company Party or party thereto in accordance with the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Lawterms thereof;
(dg) any of the Milestones set forth in Schedule 1 (as may have been extended with the approval of the Required HPR Consenting Noteholders) is not achieved, except where such Milestone has been waived or extended by the Required HPR Consenting Noteholders; provided, that the right to terminate this Agreement under this Section 12.01(g) shall not be available to a Consenting Stakeholder if the failure of such Milestone to be achieved is caused by, or results from, the breach by such Consenting Stakeholder of their covenants, agreements or other obligations under this Agreement;
(h) the issuance by any governmental authorityGovernmental Entity, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen ten (1510) Business Days after such terminating the Required HPR Consenting Stakeholders Noteholders or the Required HPR Consenting Shareholders, as applicable, transmit a written notice in accordance with Section 17.11 14.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party of HPR Consenting Noteholders or HPR Consenting Shareholders, as applicable, that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ei) any Company Party (i) commences a voluntary case under the Bankruptcy Code other than the Chapter 11 Cases; (ii) consents to the appointment of, or taking possession by, a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of any Company Party or the property or assets of any Company Party; (iii) seeks any arrangement, adjustment, protection or relief of its debts other than the In-Court Restructuring consistent with the terms of this Agreement and the Plan; or (iv) makes any general assignment for the benefit of its creditors;
(i) the commencement of an involuntary case (other than commenced by any of the Consenting Stakeholders) against any Company Party under the Bankruptcy Code that is not dismissed or withdrawn within 45 days, or (ii) a court of competent jurisdiction enters a ruling, judgment or order that appoints, or that authorizes or permits the taking of possession by, a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of any Company Party;
(k) the Effective Date has not occurred by the In-Court Restructuring Outside Date, as applicable (as such date may have been extended in accordance with the provisions of this Agreement); provided, however, that the right to terminate this Agreement under this Section 12.01(k) shall not be available to a Consenting Stakeholder if the failure of the Effective Date to have occurred by the In-Court Restructuring Outside Date, as applicable, is caused by, or results from, a breach by such Consenting Stakeholder of its covenants, agreements or other obligations under this Agreement; or
(l) if the Restructuring Transactions are to be implemented through the In-Court Restructuring and:
(i) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fii) the Bankruptcy Court enters an order terminating the Company’s exclusive right to file and/or solicit acceptances of a plan of reorganization;
(iii) the Company Parties (1) withdraw the Plan, (2) publicly announce, or communicate in writing to any other Party, their intention to withdraw the Plan or not support the Plan, or (3) move to voluntarily dismiss any of the Chapter 11 Cases;
(iv) the Company Parties amend or modify, or file a pleading seeking authority to amend or modify, any Definitive Document in a manner that is inconsistent with this Agreement or publicly announce their intention to take any such action;
(v) the Company Parties (i) file any motion seeking to avoid, disallow, subordinate, or recharacterize any Company Claims/Interests, lien, or interest held by any Consenting Stakeholder or (ii) shall have supported any application, adversary proceeding, or cause of action referred to in the immediately preceding clause (i) filed by a third party, or consent to the standing of any such third party to bring such application, adversary proceeding, or cause of action;
(vi) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any the Company Party Parties seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders), (i1) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii2) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company PartyCases, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv3) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(gvii) the Bankruptcy Court enters an order grants relief terminating or annulling the automatic stay (as set forth in an oral decision delivered from the bench finding, determining, or concluding that the classification section 362 of the Junior Debt Claims under Bankruptcy Code) with regard to any assets with an aggregate fair market value in excess of $20 million of the Plan will not be approved Company Parties; or
(viii) after entry by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) Confirmation Order, such order is reversed, stayed, dismissed, or vacated, in each case, in a manner materially inconsistent with this Agreement without the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination written consent of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required HPR Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodNoteholders.
Appears in 2 contracts
Samples: Transaction Support Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp)
Consenting Stakeholder Termination Events. This Agreement may be terminated (ay) with respect to the Consenting Senior Creditors First Lien Lenders by the Required Consenting Senior Creditors, First Lien Lenders and (bz) with respect to the Consenting 2021 Second Lien Noteholders by the Required Consenting 2021 Second Lien Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, case by the delivery to the Company other Parties of a written termination notice in accordance with Section 17.11 hereof 14.09 upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that is (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten three (103) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 14.09 detailing any such breach;
(b) the Company Parties breach in any material respect by Consenting First Lien Lenders holding an amount of First Lien Facility Claims that (i) withdraw either would (A) result in non-breaching Consenting First Lien Lenders failing to hold at least two thirds (2/3) of the Plan aggregate outstanding principal amount of First Lien Facility Claims or (B) reasonably be expected to prevent the consummation of the Restructuring Transactions, and (ii) publicly announce their intention remains uncured (to the extent curable) for three (3) Business Days after the Consenting Stakeholders seeking termination pursuant to this Section 12.01(b) transmit a written notice in accordance with Section 14.09 detailing any such breach; provided, however, any breaching Consenting First Lien Lender or breaching Consenting Second Lien Noteholder cannot use this Section 12.01(b) to support terminate the Restructuring TransactionsAgreement;
(c) any the breach by the Company Party determines, pursuant Parties under the Backstop Commitment Agreement giving the Exit Backstop Parties the right to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary terminate their obligations under applicable Lawthereunder;
(d) the breach in any material respect by Consenting Second Lien Noteholders holding an amount of Second Lien Notes Claims that (i) either would (A) result in non-breaching Consenting Second Lien Noteholders failing to hold at least two thirds (2/3) of the aggregate outstanding principal amount of Second Lien Notes Claims or (B) reasonably be expected to prevent the consummation of the Restructuring Transactions, and (ii) remains uncured (to the extent curable) for three (3) Business Days after the Consenting Stakeholders seeking termination pursuant to this Section 12.01(d) transmit a written notice in accordance with Section 14.09 detailing any such breach; provided, however, any breaching Consenting Second Lien Noteholder or breaching Consenting First Lien Lender cannot use this Section 12.01(d) to terminate the Agreement;
(e) any Company Party enters into a definitive agreement, amendment, restatement or modification of any Material Contracts/Leases or any other contracts, agreements or relationships with any affiliate (including, without limitation, Xxxxxx Energy) without the consent of the Required First Lien Lenders;
(f) (i) any Company Party shall have breached or be in default with respect to any of the Material Contracts/Leases other than the Excluded Contract/Lease Defaults, and (ii) such breach remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 14.09 detailing any such breach;
(g) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins would reasonably be expected to prevent the consummation of a material portion of or materially alter the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 14.09 detailing any such issuance; provided, that however, a Consenting Stakeholder cannot use this termination right may not be exercised by any Party that Section 12.01(g) to terminate the Agreement if it sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fh) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting SponsorsFirst Lien Lenders) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, ; (ii) dismissing any of the Chapter 11 Cases of the Company Parties; or (iii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(gi) the Company Parties lose the exclusive right to file a plan or plans of reorganization or to solicit acceptances thereof pursuant to Bankruptcy Code section 1121;
(j) the Bankruptcy Court enters an order or in an oral decision delivered granting relief from the bench finding, determining, or concluding that the classification automatic stay imposed by Bankruptcy Code section 362 authorizing any party to proceed with regard to any material asset of the Junior Debt Claims under Company Parties that, to the Plan will not be approved by extent such relief were granted, would have a material adverse effect on the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy CodeRestructuring Transactions;
(hk) any Event of Default under the DIP Facility Documents or the DIP Orders, as applicable, that has not been cured (if susceptible to cure) or waived by the applicable percentage of DIP Lenders, as applicable, in accordance with the terms of the DIP Facility Documents and DIP Orders, as applicable;
(l) the failure to meet a Milestone (unless such Milestone has been waived or extended in a manner consistent with this Agreement); provided, however, a Consenting Stakeholder cannot use this Section 12.01(l) to terminate the Agreement if such breach is the result of any act, omission, or delay on the part of the Consenting Stakeholder in violation of its obligations under this Agreement;
(m) any Company Party withdraws the Plan or amends any of the Definitive Documents without the prior consent of the Required First Lien Lenders and, solely with respect to economic treatment of the Second Lien Note Claims, the Required Second Lien Noteholders, which remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 14.09 detailing any such breach;
(n) any Company Party files or executes a Definitive Document, or amends or modifies a Definitive Document without the prior consent of the Required First Lien Lenders;
(o) any Company Party announces an intention to or enters into a definitive agreement with respect to an Alternative Restructuring Proposal;
(p) the failure of any Milestone the Company Parties to occur as pay the fees and when specified expenses set forth in Section 7.03 of this Agreement, the Restructuring Term Sheet;
(i) a termination DIP Orders, or other order of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or finalBankruptcy Court, as applicable) Financing Order; or
(jq) solely with respect the Company Parties file a Valuation Analysis that is not acceptable to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding First Lien Lenders in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodtheir sole and absolute discretion.
Appears in 2 contracts
Samples: Restructuring Support Agreement (Foresight Energy LP), Restructuring Support Agreement (Foresight Energy LP)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, Stakeholders by the delivery to the Company Parties of a prior written notice in accordance with Section 17.11 16.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, obligations, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for five (to the extent curable) for ten (105) Business Days after such terminating the Required Consenting Stakeholders transmit a written notice to the Company Parties in accordance with Section 17.11 16.10 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen ten (1510) Business Days after such terminating the Required Consenting Stakeholders transmit a written notice to the Company Parties in accordance with Section 17.11 16.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ec) the Bankruptcy Court enters an order denying confirmation of the PlanPlan and such order remains in effect for five (5) Business Days after entry of such order;
(fd) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(he) the failure to meet a Milestone, which has not been waived or extended in a manner consistent with this Agreement, unless such failure is the result of any Milestone to occur as and when specified in act, omission, or delay on the Restructuring Term Sheet;
(i) a termination part of the Company Parties’ right to consensually use cash collateral following the occurrence terminating Consenting Stakeholder in violation of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.its obligations under this Agreement;
Appears in 2 contracts
Samples: Restructuring Support Agreement (Covia Holdings Corp), Restructuring Support Agreement (Covia Holdings Corp)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Lenders by the Required Consenting Senior CreditorsLenders, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors Commitment Parties by the Consenting SponsorsRequired Commitment Parties, and (d) with respect to SFL (solely with respect to Sections 13.01(a), 13.01(c), 13.01(e), and 13.01(f) through 13.01(j)) by SFL, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 15.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such breach;
(b) the economic substance or the legal rights, remedies, or benefits of the Restructuring Transactions is materially and adversely affected in a manner that (i) is a result of fraud, bad faith, or willful misconduct by any of the Company Parties or their applicable boards of directors or officers and (ii) remains uncured for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 15.10 hereof detailing any such occurrence;
(c) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the failure by the Company Parties to have commenced one or more of the Chapter 11 Cases or Schemes of Arrangement by 11:59 p.m. prevailing Eastern time on September 12, 2017;
(f) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fg) the Investment Agreement is terminated according to its terms (other than as a result of a breach by the Consenting Stakeholder seeking termination under this Agreement);
(h) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors Lenders and the Consenting SponsorsRequired Commitment Parties) (i) converting one or more of the Chapter 11 Cases of a Company Party Filing Entity that is obligated under the Finance Documents to a case under chapter 7 of the Bankruptcy Code, (ii) dismissing one or more of the Chapter 11 Cases of a Filing Entity that is obligated under the Finance Documents, (iii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company PartyFiling Entity that is obligated under the Finance Documents, (iiiiv) vacating the (interim or final, as applicable) Financing Cash Collateral Order, or (ivv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company PartiesFiling Entities’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Cash Collateral Order; or
(j) solely other than for the purpose of implementing the Restructuring Transactions in accordance with the terms of this Agreement, one or more Insolvency Proceedings are opened in respect to the Required Consenting Senior Creditors, if of any Company Party does that is an Obligor under (and as defined in) the Finance Documents that have not immediately seek an extension been dismissed within forty-five (45) days of the commencement thereof; provided that this termination right shall not apply to or be exercised by any Party that initiated or supported the initiation of the Insolvency Proceedings in question in contravention of any deadline, order, contrary obligation or proceeding restriction set out in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodthis Agreement.
Appears in 2 contracts
Samples: Restructuring Support and Lock Up Agreement (North Atlantic Drilling Ltd.), Restructuring Support and Lock Up Agreement (Seadrill LTD)
Consenting Stakeholder Termination Events. This Agreement (A) may be terminated upon the occurrence of any of the Events set forth in clauses (a) with respect through (m) below,
(1) as to the Consenting Senior Creditors Term Loan Lenders, by the Required Consenting Senior Creditors, Term Loan Lenders,
(b2) with respect as to the Consenting 2021 Noteholders Unsecured Noteholders, by the Required Consenting 2021 Unsecured Noteholders, and (c3) with respect as to the Consenting Sponsors either Sponsor, by the Consenting Sponsorssuch Sponsor, in each case, case by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof 14.10 of this Agreement; or (B) may be terminated upon the occurrence and continuation of any of the following eventsEvent set forth in clause (m) below as to any individual Consenting Stakeholder by the delivery by such Consenting Stakeholder to the other Parties of a written notice in accordance with Section 14.10 of this Agreement:
(a) the breach in any material respect by a Company Party (other than by any Consenting Stakeholders asserting such breach) of any of the representations, warranties, covenants, or covenants commitments of the Company Parties Party set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision or could reasonably be expected to have a material adverse impact on the timely consummation of the Recapitalization Transactions and (ii) remains uncured for seven (to the extent curable) for ten (107) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 14.10 of this Agreement detailing any such breach; provided, that for the avoidance of doubt, the execution, amendment, or modification of this Agreement or any Definitive Document (as applicable) without obtaining the requisite consent(s) set forth in this Agreement (including Section 3 and Section 13 of this Agreement) or in such Definitive Document, as applicable, constitutes a material breach for purposes hereof;
(b) only with respect to the Consenting Unsecured Noteholders and/or the Consenting Term Loan Lenders, if the Ares Sponsor, the CPPIB Sponsor, or any Company Parties (i) withdraw Party publicly announces its intention to pursue an Alternative Transaction Proposal, or renounces this Agreement and/or the Plan or (ii) publicly announce their intention not to support the Restructuring Recapitalization Transactions;
(c) only as to the Consenting Term Loan Lenders, if (i) the Commitment Letter is terminated, rescinded, breached in any Company Party determinesmaterial respect, or renounced by any party to the Commitment Letter, or otherwise ceases to be in full force and effect, except in connection with a funding under the Commitment Letter (or any funding under the Commitment Letter ceases to be subject to an escrow for purposes of funding the Recapitalization Transactions prior to the Effective Date), or is amended, modified, waived, or supplemented in any manner that is adverse to the Consenting Term Loan Lenders seeking termination pursuant to this provision; and (ii) such Event remains uncured for five (5) Business Days after the Required Consenting Term Loan Lenders transmit a written notice in accordance with Section 7.01, 14.10 of this Agreement detailing any such Event (it being understood that such Event may be cured if the Commitment Letter is replaced by a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect commitment on terms not materially less favorable to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable LawConsenting Term Loan Lenders in any respect);
(d) only as to the Consenting Unsecured Noteholders, if (i) (A) the Commitment Letter is terminated, rescinded, breached in any material respect, or renounced by the Ares Sponsor, the CPPIB Sponsor, or any Company Party, or the Commitment Letter is amended, modified, waived, or supplemented (in each case, other than by any Consenting Unsecured Noteholder party thereto) in any manner that is adverse to the Consenting Unsecured Noteholders seeking termination pursuant to this provision; and (B) such Event remains uncured for five (5) Business Days after the Required Consenting Unsecured Noteholders transmit a written notice in accordance with Section 14.10 of this Agreement detailing any such Event (it being understood that such Event may be cured if the Commitment Letter is replaced by a commitment on terms not materially less favorable to the Consenting Unsecured Noteholders in any respect provided that the termination, rescindment, breach in any material respect, or renunciation of the Commitment Letter by the Ares Sponsor or CPPIB Sponsor cannot be cured with a replacement commitment by a party other than the Ares Sponsor or CPPIB Sponsor); or (ii) without the prior written consent of the Required Consenting Unsecured Noteholders, the Recapitalization Term Sheet or any executed Definitive Documents are amended, modified, or executed (as applicable) in a manner that is inconsistent in any respect with the terms, conditions and covenants relating to and effecting the agreements regarding the MT Preferred Equity set forth in the Recapitalization Term Sheet;
(e) only as to the Sponsors, if (i) the Commitment Letter is terminated, rescinded, breached in any material respect, or renounced by any of the Consenting Unsecured Noteholders (other than any Sponsor) party thereto, or is amended, modified, waived, or supplemented (in each case, other than by any Sponsor) in any manner that is adverse to the Sponsor seeking termination pursuant to this provision; and (ii) such Event remains uncured for five (5) Business Days after such terminating Sponsor transmits a written notice in accordance with Section 14.10 of this Agreement detailing any such Event (it being understood that such Event may be cured if the Commitment Letter is replaced by a commitment on terms not materially less favorable to the Sponsors in any respect);
(f) any Company Party executes, amends, or modifies the Recapitalization Term Sheet or any executed Definitive Document in a manner that is (i) inconsistent in any respect with the terms set forth in the Recapitalization Term Sheet or this Agreement, the other rights and benefits granted to, or received by the Consenting Stakeholders pursuant to the Recapitalization Term Sheet or this Agreement (including any Consenting Stakeholders’ consent rights regarding any Definitive Document), or the implementation thereof, unless, in the case of amendment or modification of any Definitive Document, such amendment or modification is otherwise consented to in accordance with Section 13 of this Agreement and/or the applicable provisions of the Recapitalization Term Sheet, or (ii) adverse to the Consenting Stakeholders seeking termination pursuant to this provision, and (iii) in each case of (i) and (ii) of this subsection (f), remains uncured for three (3) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 14.10 of this Agreement detailing any such Event;
(g) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Recapitalization Transactions and (ii) remains in effect for fifteen twenty (1520) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this Days. This termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone the Company Parties to occur as confirm by not later than three (3) Business Days prior to the Effective Date that the Series A MT Preferred Equity has been declared to be a security eligible for distribution by DTC and when specified in was agreed to be accepted by DTC for the Restructuring Term SheetDTC’s book-entry, delivery, settlement and depository services;
(i) a termination of the Company Parties’ right to consensually use cash collateral following upon the occurrence of a Termination Material Adverse Effect;
(j) only as to the Consenting Unsecured Noteholders and/or the Consenting Term Loan Lenders, if a Default or Event of Default (as defined in the Term Loan Credit Agreement or any of the Indentures) under the Term Loan Credit Agreement or any Indenture (interim and other than as expressly set forth in the Waiver, Rescission and Amendment under the Term Loan Credit Agreement, attached to this Agreement as Exhibit D) has occurred and is continuing;
(k) any of (i) the Company Parties, (ii) the Required Consenting Unsecured Noteholders, (iii) the Required Consenting Term Loan Lenders, or final(iv) the Sponsors, as applicablerespectively, validly terminates this Agreement in accordance with its terms;
(l) Financing Orderthe Exchange Offer has not launched by April 22, 2019; or
(jm) solely with respect to the Required Consenting Senior CreditorsEffective Date has not occurred by June 10, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period2019.
Appears in 1 contract
Samples: Transaction Support Agreement
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each caseStakeholders, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 14.10 hereof upon the occurrence and continuation of any of the following events, in each case, other than as contemplated by the Restructuring Transactions:
(a) the (i) breach (other than an immaterial breach) in any material respect by a Company Party of any of the undertakings, representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and or (ii) failure of the Company Parties to act in a manner materially consistent with this Agreement, which breach or failure remains uncured (to the extent curable) for ten five (105) Business Days after such terminating the Required Consenting Stakeholders transmit a written notice to the Company Parties in accordance with Section 17.11 14.10 hereof detailing any identifying such breach;
(b) the making public, modification, amendment, or filing of any of the Definitive Documents without the consent of the applicable Required Consenting Stakeholders in accordance with this Agreement;
(c) the Company Parties (i) withdraw the Plan or Plan, (ii) publicly announce their intention not to support the Restructuring Transactions;
Transactions or (ciii) any Company Party determinesfile, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, memberspublicly announce, or any similar governing body of execute a Company Party taking any action or refraining from taking any action definitive written agreement with respect to the an Alternative Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable LawProposal;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions Transactions, including the Plan and (ii) either (1) such ruling, judgment or order has been issued at the request of the Company Parties in contravention of any obligations set forth in this Agreement or (2) remains in effect for fifteen (15) Business Days after such terminating Required Consenting Stakeholders transmit a written notice in accordance with Section 17.11 14.10 hereof detailing any such issuance; provided, provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(i) the failure of any of Milestones (a), (b), (c), or (d) on Schedule 1 to this Agreement to be satisfied, which remains unsatisfied for three (3) Business Days, or (ii) the failure of Milestone (e) the Bankruptcy Court enters an order denying confirmation of the Planon Schedule 1 to this Agreement to be satisfied, which remains unsatisfied for one (1) Business Day;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee under section 1104 of the Bankruptcy Code in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases, (iv) terminating exclusivity under Bankruptcy Code section 1121, or (v) rejecting this Agreement;
(g) if any Company Party (i) voluntarily commences any case or files any petition seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect, except as contemplated by this Agreement, (ii) consents to the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determininginstitution of, or concluding that fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described in the classification preceding subsection (i), (iii) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator or similar official with respect to any Company Party or for a substantial part of such Company Party’s assets, (iv) makes a general assignment or arrangement for the benefit of creditors, or (v) takes any corporate action for the purpose of authorizing any of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Codeforegoing;
(h) an order is entered by the failure Bankruptcy Court granting relief from the automatic stay imposed by section 362 of the Bankruptcy Code authorizing any Milestone party to occur as proceed against any material asset of the Company Parties that would materially and when specified in adversely affect the Restructuring Term SheetCompany’s operational or financial performance;
(i) a termination upon the delivery of notice by the Company Parties’ right Parties pursuant to consensually use cash collateral following Section 7.01;
(j) failure by the occurrence Company Parties to pay the fees and expenses set forth in Section 14.22 of a Termination Event this Agreement as defined and when required, subject to applicable Law; provided, however, that the Effective Date shall not occur until and unless the fees and expenses set forth in the (interim or final, as applicable) Financing OrderSection 14.22 have been paid in full; or
(jk) solely the Company Parties file any motion or pleading with respect to the Bankruptcy Court that is not consistent in all material respects with this Agreement and such motion has not been withdrawn within two (2) Business Days of receipt by the Company Parties of written notice from the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, Stakeholders that such motion or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodpleading is inconsistent with this Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Parker Drilling Co /De/)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders Noteholder Group Creditors by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.the
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, Stakeholders by the delivery to the Company Parties of a written notice in accordance with Section 17.11 13.11 hereof upon the occurrence and continuation of any of the following events:
(a) the Petition Date has not occurred by 11:59 p.m. (Eastern Time) on July 23, 2020;
(b) the Debtors have not filed the Rent Deferral Motion with the Bankruptcy Court by the date that is three (3) calendar days after the Petition Date
(c) the Bankruptcy Court has not entered the Cash Collateral Order on an interim basis by the date that is five (5) Business Days after the Petition Date;
(d) the Bankruptcy Court has not entered the DIP Financing Order on a final basis by the date that is thirty-five (35) calendar days after the Petition Date;
(e) the Bankruptcy Court has not entered the Disclosure Statement Order by the date that is sixty (60) calendar days after the Petition Date;
(f) solicitation of the Plan has not commenced by the date that is seventy (70) calendar days after the Petition Date;
(g) the Bankruptcy Court has not entered the Confirmation Order by the date that is one hundred ten (110) calendar days after the Petition Date;
(h) the Plan Effective Date has not occurred by the date that is one hundred thirty (130) calendar days after the Petition Date;
(i) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 13.11 hereof detailing any such breach;
(bj) the Company Parties DIP ABL Facility (ias applicable) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactionsis terminated and accelerated in accordance with its terms;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(dk) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, including the Bankruptcy Court, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 13.11 hereof detailing any such issuance; provided, provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(el) the Bankruptcy Court enters an order denying confirmation of the PlanPlan or the Confirmation Order is reversed or vacated;
(fm) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, or (iiiii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases Cases;
(n) any Company Party (i) files, waives, amends or modifies, or files a pleading seeking approval of any Definitive Document or authority to waive, amend or modify any Definitive Document (including any waiver of any term or condition therein) in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement (including with respect to the consent rights afforded the Consenting Stakeholders under this Agreement), without the prior written consent of the Required Consenting Stakeholders, (ii) withdraws the Plan without the prior consent of the Required Consenting Stakeholders, or (iii) publicly announces its intention to take any such acts listed in the foregoing clause (i) or (ii), in the case of each of the foregoing clauses (i) through (iii), which remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 15.10 of this Agreement detailing any of the foregoing;
(o) any Company Party files or supports another party in filing (i) a motion or pleading challenging the amount, validity, or priority of any claims held by any Consenting Stakeholder against the Company Parties (or any liens securing such claims) or (ii) a motion or pleading asserting (or seeking standing to assert) any purported claims or causes of action against any of the Consenting Stakeholders;
(p) the Bankruptcy Court grants relief that is materially inconsistent with this Agreement or the Plan (in each case, with such amendments and modifications as have been effected in accordance with the terms hereof);
(q) any Company Party files, proposes, or otherwise supports any plan of liquidation, asset sale of all or substantially all of a Company Party, (iii) vacating ’s assets or plan of reorganization other than the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 CasesPlan;
(gr) the Bankruptcy Court enters an order or in an oral decision delivered from terminating the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company PartiesDebtors’ exclusive right to consensually use cash collateral following the occurrence file or solicit acceptances of a Termination Event as defined in plan of reorganization (including the (interim or final, as applicable) Financing OrderPlan); or
(js) solely with respect any court of competent jurisdiction has entered a final, non-appealable judgment or order declaring this Agreement to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodbe unenforceable.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, Stakeholders by the delivery to the Company Parties of a written notice in accordance with Section 17.11 13.11 hereof upon the occurrence and continuation of any of the following events:
(a) the Petition Date has not occurred by 11:59 p.m. (Eastern Time) on July 23, 2020;
(b) the Debtors have not filed the Rent Deferral Motion with the Bankruptcy Court by the date that is three (3) calendar days after the Petition Date
(c) the Bankruptcy Court has not entered the Cash Collateral Order on an interim basis by the date that is five (5) Business Days after the Petition Date;
(d) the Bankruptcy Court has not entered the DIP Financing Order on a final basis by the date that is thirty-five (35) calendar days after the Petition Date;
(e) the Bankruptcy Court has not entered the Disclosure Statement Order by the date that is sixty (60) calendar days after the Petition Date;
(f) solicitation of the Plan has not commenced by the date that is seventy (70) calendar days after the Petition Date;
(g) the Debtors have not filed a motion seeking entry of the Sale Order by November 26, 2020;
(h) the Bankruptcy Court has not entered the Confirmation Order by February 25, 2021;
(i) the Plan Effective Date has not occurred by March 11, 2021;
(j) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 13.11 hereof detailing any such breach;
(bk) the Company Parties DIP ABL Facility (ias applicable) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactionsis terminated and accelerated in accordance with its terms;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(dl) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, including the Bankruptcy Court, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 13.11 hereof detailing any such issuance; provided, provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(em) the Bankruptcy Court enters an order denying confirmation of the PlanPlan or the Confirmation Order is reversed or vacated;
(fn) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, or (iiiii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases Cases;
(o) any Company Party (i) files, waives, amends or modifies, or files a pleading seeking approval of any Definitive Document or authority to waive, amend or modify any Definitive Document (including any waiver of any term or condition therein) in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement (including with respect to the consent rights afforded the Consenting Stakeholders under this Agreement), without the prior written consent of the Required Consenting Stakeholders, (ii) withdraws the Plan without the prior consent of the Required Consenting Stakeholders, or (iii) publicly announces its intention to take any such acts listed in the foregoing clause (i) or (ii), in the case of each of the foregoing clauses (i) through (iii), which remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 15.10 of this Agreement detailing any of the foregoing;
(p) any Company Party files or supports another party in filing (i) a motion or pleading challenging the amount, validity, or priority of any claims held by any Consenting Stakeholder against the Company Parties (or any liens securing such claims) or (ii) a motion or pleading asserting (or seeking standing to assert) any purported claims or causes of action against any of the Consenting Stakeholders;
(q) the Bankruptcy Court grants relief that is materially inconsistent with this Agreement or the Plan (in each case, with such amendments and modifications as have been effected in accordance with the terms hereof);
(r) any Company Party files, proposes, or otherwise supports any plan of liquidation, asset sale of all or substantially all of a Company Party, (iii) vacating ’s assets or plan of reorganization other than the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 CasesPlan;
(gs) the Bankruptcy Court enters an order or in an oral decision delivered from terminating the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company PartiesDebtors’ exclusive right to consensually use cash collateral following the occurrence file or solicit acceptances of a Termination Event as defined in plan of reorganization (including the (interim or final, as applicable) Financing OrderPlan); or
(jt) solely with respect any court of competent jurisdiction has entered a final, non-appealable judgment or order declaring this Agreement to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodbe unenforceable.
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated terminated
(a) with respect to the Consenting Senior Creditors Lenders by the Required Consenting Senior CreditorsLenders, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors Commitment Parties by the Consenting SponsorsRequired Commitment Parties, and (d) with respect to SFL (solely with respect to Sections 13.01(a), 13.01(c), 13.01(e), and 13.01(f) through 13.01(j)) by SFL, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 15.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such breach;
(b) the economic substance or the legal rights, remedies, or benefits of the Restructuring Transactions is materially and adversely affected in a manner that (i) is a result of fraud, bad faith, or willful misconduct by any of the Company Parties or their applicable boards of directors or officers and (ii) remains uncured for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 15.10 hereof detailing any such occurrence;
(c) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the failure by the Company Parties to have commenced one or more of the Chapter 11 Cases or Schemes of Arrangement by 11:59 p.m. prevailing Eastern time on September 12, 2017;
(f) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fg) the Investment Agreement is terminated according to its terms (other than as a result of a breach by the Consenting Stakeholder seeking termination under this Agreement);
(h) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors Lenders and the Consenting SponsorsRequired Commitment Parties) (i) converting one or more of the Chapter 11 Cases of a Company Party Filing Entity that is obligated under the Finance Documents to a case under chapter 7 of the Bankruptcy Code, (ii) dismissing one or more of the Chapter 11 Cases of a Filing Entity that is obligated under the Finance Documents, (iii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company PartyFiling Entity that is obligated under the Finance Documents, (iiiiv) vacating the (interim or final, as applicable) Financing Cash Collateral Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 1 contract
Samples: Restructuring Support Agreement
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors RBL Lenders, by the Required Consenting Senior CreditorsRBL Lenders, and (b) with respect to the Consenting 2021 Noteholders Noteholders, by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 12.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for four (to the extent curable) for ten (104) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 12.10 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling ruling, judgment, or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 12.10 hereof detailing any such issuance; provided, that however, a Consenting Stakeholder cannot use this termination right may not be exercised by any Party that provision to terminate the Agreement if it sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ec) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fd) the entry of Bankruptcy Court enters an order by the Bankruptcy Courtorder, or the filing of any Company Party files a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 CasesCases of a Company Party, or (iv) rejecting this Agreement;
(ge) the Bankruptcy Court enters an order grants relief that is inconsistent in any material respect with this Agreement, the Definitive Documents or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
Transactions, and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring Transactions within five (i5) a termination of Business Days following written notice thereof to the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to Parties by the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.Stakeholders;
Appears in 1 contract
Samples: Restructuring Support Agreement (Oasis Petroleum Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors DIP Lenders, by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, DIP Lenders4 by the delivery to the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan Facility Lenders, the Consenting Second Lien Noteholders, and the Company Parties of a written notice in accordance with Section 17.11 14.10; (b) with respect to the Consenting Revolving Credit Facility Lenders, by the Required Consenting Revolving Credit Facility Lenders5 by the delivery to the Consenting DIP Lenders, the Consenting FLLO Term Loan Facility Lenders, the Consenting Second Lien Noteholders, and the Company Parties of a written notice in accordance with Section 14.10; (c) with respect to the Consenting FLLO Term Loan Facility Lenders, by the Required Consenting FLLO Term Loan Facility Lenders6 by the delivery to the Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting Second Lien Noteholders, and the Company Parties of a written notice in accordance with Section 14.10; and (d) with respect to the Consenting Second Lien Noteholders, by the Required Consenting Second Lien Noteholders,7 by the delivery to the Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, Consenting FLLO Term Loan Facility Lenders, and the Company Parties of a written notice in accordance with Section 14.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representationsits obligations under this Agreement, warranties, or covenants of the Company Parties set forth in this Agreement that which breach is not cured within five (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (105) Business Days after such terminating Consenting Stakeholders transmit a Company Party has been given written notice of such breach by another Party in accordance with Section 17.11 hereof detailing any such breach;
(b) 14.10 hereof, or if a Company Party files, publicly announces, or informs the Company Parties Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan Facility Lenders, and the Consenting Second Lien Noteholders of its intention to file a chapter 11 plan that contains terms and conditions that: (i) withdraw do not provide the Plan Consenting DIP Lenders, the Consenting Revolving Credit Facility Lenders, the Consenting FLLO Term Loan Facility Lenders, or the Consenting Second Lien Noteholders, as applicable, with the economic recovery set forth in the Restructuring Term Sheet or (ii) publicly announce their intention are not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action otherwise consistent with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions this Agreement and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 1 contract
Samples: Restructuring Support Agreement (Chesapeake Energy Corp)
Consenting Stakeholder Termination Events. 2 This Agreement may be terminated (ax) with respect as to the Consenting Senior Creditors all Parties by the Required Consenting Senior CreditorsStakeholders, (by) with respect as to the Consenting 2021 Noteholders PW Ad Hoc Group, by the Required Consenting 2021 NoteholdersPW Ad Hoc Group Members, and or (cz) with respect as to the Consenting Sponsors Akin Ad Hoc Group, by the Consenting SponsorsRequired Akin Ad Hoc Group Members, in each case, by the delivery to the Company Parties and other applicable parties of a written notice in accordance with Section 17.11 15.10 hereof upon the occurrence and continuation of any of the following events; provided that neither the Required PW Ad Hoc Group Members nor the Required Akin Ad Hoc Group Members may terminate this Agreement on account of a missed Milestone based solely on the failure of the Parties to agree to material terms and conditions of the Restructuring Transactions that are not agreed to as of the Agreement Effective Date:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten seven (107) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such breach;
(b) any of the Milestones (other than the Escrow Payment Milestone) set forth in Schedule 1 (as may have been extended with the approval of the Required Consenting Stakeholders) is not achieved, except where such Milestone has been waived or extended by the Required Consenting Stakeholders (or, solely with respect to any Consummation Milestone, where such Consummation Milestone has been extended by either the Required Akin Ad Hoc Group Members or the Required PW Ad Hoc Group Members, each without the need to obtain any consent of the other Required Consenting Stakeholders, for up to thirty (30) calendar days from the applicable initial Consummation Milestone date set forth in the Restructuring Term Sheet); provided that the right to terminate this Agreement under this Section 13.01(b) shall not be available to any Consenting Stakeholder, as applicable, if the failure of such Milestone to be achieved is caused by, or results from, the breach by such Consenting Stakeholder, as applicable, of its covenants, agreements or other obligations under this Agreement; 2 Any and all references to “Company Party” or “Company Parties” in this Section 13 shall mean each of the Company Parties (i) withdraw set forth on Exhibit A hereto, including any such party that has not yet executed and delivered a counterpart signature page or Joinder to this Agreement as of the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;Execution Date.
(c) any Company Party determinesthe Escrow Payment Milestone (as may have been extended with the approval of the Required PW Ad Hoc Group Members) is not achieved, except where the Escrow Payment Milestone has been waived or extended by the Required PW Ad Hoc Group Members; provided that only the Required PW Ad Hoc Group Members may terminate this Agreement based on this Section 13.01(c); provided, further, that the Required PW Ad Hoc Group Members may terminate this Agreement based on this Section 13.01(c) only if the Bankruptcy Court does not authorize the Escrow Payment pursuant to Section 7.01, that a Company Party the Final DIP Order (unless previously authorized by the Bankruptcy Court under the Interim DIP Order or otherwise authorized by the board Bankruptcy Court prior to or contemporaneously with entry of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable LawFinal DIP Order);
(d) this Agreement or any Definitive Document is amended, waived, or modified in any manner not consistent in any material respect with the terms of this Agreement;
(e) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins would reasonably be expected to prevent the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such issuance; provided, provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ef) the Bankruptcy Court enters an order denying confirmation of the PlanPlan and (i) such order remains in effect for seven (7) Business Days after entry of such order and (ii) the Company Parties have failed to timely appeal such order;
(fg) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (iiiii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement;
(h) upon the commencement of an involuntary case against any of the Company Parties or the filing of an involuntary petition seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization or other relief in respect of the Company Parties or their debts, or of a substantial part of their Assets, under any federal, state or foreign bankruptcy, insolvency, administrative, receivership or similar law now or hereafter in effect; provided that such involuntary proceeding is not dismissed within a period of thirty (30) days after the filing thereof, or if any court order grants the relief sought in such involuntary proceeding;
(i) any Company Party (i) files, amends or modifies, or files a pleading seeking approval of any Definitive Document or authority to amend or modify any Definitive Document in a manner that is inconsistent with or not permitted by this Agreement without the prior written consent of the Required Consenting Stakeholders, the Required DIP Lenders and the Requisite Commitment Parties, (ii) revokes the Restructuring Transactions without the prior consent of the Required Consenting Stakeholders and Required DIP Lenders, including the withdrawal of the Plan, as applicable, or support therefor, or (viii) dismissing one publicly announces its intention to take any such acts listed in the foregoing clauses (i) or more (ii) or is otherwise inconsistent with the consent rights afforded such Parties under this Agreement;
(j) the board of directors, board of managers, or such similar governing body of any Company Party determines, after consulting with outside counsel, (i) that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of its fiduciary duties or applicable Law or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal (including as contemplated by Section 7.02);
(k) if (i) any of the DIP Orders are reversed, stayed, dismissed, vacated, reconsidered, modified or amended without the consent of the Required DIP Lenders and Required Consenting Stakeholders, or (ii) a motion for reconsideration, reargument, or rehearing with respect to any such order has been filed and the Company Parties have failed to timely object to such motion;
(l) the Bankruptcy Court enters any order authorizing the use of cash collateral or post-petition financing that is not in the form of the DIP Orders or otherwise consented to by the Required DIP Lenders and the Required Consenting Stakeholders;
(m) occurrence of any “Event of Default” under (and as defined in) the DIP Orders, the DIP Term Loan Facility Documents, or the DIP ABL Facility Documents that has not been cured (if susceptible to cure) or waived by the Required DIP Lenders;
(n) if the Bankruptcy Court enters an order in the Chapter 11 CasesCases terminating any Company Party’s exclusive right to file a plan or plans of reorganization or to solicit acceptances thereof pursuant to section 1121 of the Bankruptcy Code;
(go) any Company Party files any motion or application seeking authority to sell any material assets without the prior written consent of the Required Consenting Stakeholders;
(p) entry by any of the Company Parties, or announcement of their intention to enter into, definitive documentation relating to any Alternative Restructuring Proposal;
(q) seven (7) Business Days after the occurrence of any court of competent jurisdiction or other competent governmental or regulatory authority issuing a ruling or an order and such ruling or order becoming final and non-appealable, making illegal or otherwise restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement in a way that cannot be reasonably remedied by the Company Parties;
(r) the entry of an order by any court of competent jurisdiction invalidating, disallowing, subordinating, or limiting, in any respect, as applicable, the enforceability, priority, or validity of the First Lien Claims, other than an order approving the transactions as contemplated by this Agreement or the Plan, as applicable, or the filing of any motion by the Company Parties that, if approved, would result in any of the foregoing; provided that the termination right in this
Section 13.01 (r) shall not apply with respect to any order invalidating, disallowing, subordinating, or limiting, in any respect, as applicable, the enforceability, priority, or validity of any First Lien Claim held by an Entity that was the beneficiary of the repurchase, redemption or other satisfaction by any Company Party of HoldCo Convertible Notes prior to the Petition Date;
(s) the Company Parties fail to timely pay, or cause to be paid, the Restructuring Expenses within one (1) Business Day of when due, and in a manner approved by the DIP Orders, without the consent of the relevant PW Ad Hoc Group Advisor, Akin Ad Hoc Group Advisor, or Secured Exchangeable Notes Advisor, as applicable; provided that (i) only the Required PW Ad Hoc Group Members may terminate this Agreement based on the Company Parties’ failure to make timely payment of the Restructuring Expenses of any of the PW Ad Hoc Group Advisors pursuant to this Section 13.01(s) and (ii) only the Required Akin Ad Hoc Group Members may terminate this Agreement based on the Company Parties’ failure to make timely payment of the Restructuring Expenses of any of the Akin Ad Hoc Group Advisors pursuant to this Section 13.01(s);
(t) any of the Escrow Payment is disgorged from any Consenting Stakeholder unless the Plan provides for the payment of the B-3 Escrow Claims in full in cash, at par, on the Plan Effective Date (including in accordance with the disgorgement provisions agreed to in connection with the Escrow Payment pursuant to Section 4.04(e) of this Agreement); provided that only the Required PW Ad Hoc Group Members may terminate this Agreement based on this Section 13.01(t);
(u) the Bankruptcy Court enters an order or in an oral decision delivered from denying the bench finding, determining, or concluding that RingCentral Assumption Motion; or
(v) the classification of the Junior Debt Claims under the Plan will 2023 PBGC Settlement is not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodCourt.
Appears in 1 contract
Samples: Restructuring Support Agreement (Avaya Holdings Corp.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Ad Hoc Lenders, by the Required Consenting Senior CreditorsAd Hoc Lenders, or (b) with respect to the Consenting 2021 Noteholders Plan Sponsor, by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting SponsorsPlan Sponsor, in each case, by the delivery to Counsel to the Company Parties Parties, Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor of a written notice in accordance with Section 17.11 15.11 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, obligations, or covenants of the Company Parties set forth in this Agreement or any Definitive Documents that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for seven (to the extent curable) for ten (107) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.11 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling ruling, judgment, or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuanceDays; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fc) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders):
(i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, ;
(ii) appointing a trustee, receiver, or an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, ;
(iii) vacating dismissing the (interim or final, as applicable) Financing Order, Chapter 11 Cases;
(iv) rejecting this Agreement; or or
(v) dismissing one approving any (a) plan of reorganization (or more of disclosure statement related thereto) in the Chapter 11 CasesCases inconsistent with the terms of this Agreement or (b) Definitive Documents inconsistent in any material respect with this Agreement in a manner that directly and adversely impacts the treatment of the terminating Consenting Stakeholders;
(gd) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification denying confirmation of the Junior Debt Claims under Plan, and the Plan will Bankruptcy Court does not be approved enter a Confirmation Order reasonably acceptable to the Required Consenting Stakeholders within ten (10) Business Days;
(e) the entry of an order by the Bankruptcy Court for or any reason other court of competent jurisdiction reversing, vacating, reconsidering, or dismissing the Confirmation Order, or any of the DIP Orders, and the Bankruptcy Court does not enter a revised Confirmation Order or DIP Order, as applicable, reasonably acceptable to the Required Consenting Stakeholders within ten (10) Business Days;
(f) subject to Section 7.02(g) in its entirety, the entrance, amendment, modification, renewal, or termination of any Material Lease, or any amendment of the foregoing, without the consent of (i) the Plan Sponsor (such consent not to be unreasonably withheld) and (ii) to the extent such action would materially and adversely affect the interests of any Consenting Stakeholder, the reasonable consent of such Consenting Stakeholder whose interests are affected;
(g) any of the Company Parties enters into any key employee incentive plan or key employee retention plan, any new or amended agreement regarding executive compensation, or other compensation agreement, in each case, outside of the ordinary course of business without obtaining the prior written consent of the Required Consenting Ad Hoc Lenders and the Plan Sponsor (in each case, such consent not to be unreasonably withheld);
(h) with respect to the Plan Sponsor, the failure to comply with or achieve any one of the requirements Milestones, and with respect to the Required Consenting Ad Hoc Lenders, the failure to comply with or achieve the Confirmation Order Milestone or the Effective Date Milestone, in each case as such Milestones may be extended or waived pursuant to Section 4.01;
(i) the occurrence and continuation of any event of default under the DIP Credit Agreement that is not cured in accordance with the terms of the DIP Credit Agreement;
(j) any Company Party challenges the principal amount, perfection, priority, and/or validity of any 2015 Credit Facility Claim, 2018 Credit Facility Claim, Weberstown Term Loan Facility Claim, or Unsecured Notes Claim held by a Consenting Stakeholder, or any liens associated with such claims;
(k) an order is entered by the Bankruptcy Court granting relief from the automatic stay imposed by Section 362 of the Bankruptcy Code authorizing any party to proceed against any material asset of a Company Party that is a borrower or guarantor in respect of any of the Existing Debt Agreements;
(l) the Bankruptcy Court enters an order in the Chapter 11 Cases terminating any of the Company Parties’ exclusive right to file a plan or plans of reorganization pursuant to Section 1121 of the Bankruptcy Code;
(hm) the failure board of directors, board of managers, or such similar governing body of any Milestone Company Party determines, pursuant to occur as and when specified in the Restructuring Term Sheet;
Section 8.01, after consulting with counsel, (i) a termination that proceeding with any of the Company Parties’ right to consensually use cash collateral following Restructuring Transactions would be inconsistent with the occurrence exercise of a Termination Event as defined its fiduciary duties or applicable Law or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal and any Company Party, and (interim a) makes a public announcement that it intends to accept an Alternative Restructuring Proposal or final, as applicable(b) Financing Orderenters into a definitive agreement with respect to an Alternative Restructuring Proposal; provided that no Consenting Stakeholder may terminate this Agreement solely pursuant to this Section 12.01(m) if such Alternative Restructuring Proposal is an Acceptable Alternative Restructuring Proposal that is binding and does not contain any financing or due diligence condition; or
(jn) the Backstop Commitment Agreement has been terminated in accordance with its terms; provided that if the Backstop Commitment Agreement is terminated by the Company Parties upon the material breach of the Backstop Parties, neither the Backstop Equity Premium, the Backstop Base Premium, nor the Backstop Termination Premium shall be earned by the Backstop Parties; provided, further that, following delivery of a Toggle Election Notice, no Consenting Stakeholder may terminate this Agreement pursuant to this Section 12.01(n) solely with because the Backstop Commitment Agreement has been terminated by the Company Parties; or
(o) solely as to the Consenting Ad Hoc Lenders, the breach in any material respect by the Plan Sponsor, and solely as to the Plan Sponsor, the breach in any material respect by the Required Consenting Senior CreditorsAd Hoc Lenders, if any Company Party does not immediately seek an extension in each case of any deadlineof the representations, orderwarranties, obligations, or proceeding covenants of the Plan Sponsor (or, as applicable, the Consenting Ad Hoc Lenders) set forth in this Agreement or any Definitive Documents that (i) is adverse, in any material way, to the Texas Litigation that would require Consenting Stakeholder or Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for seven (7) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 15.11 hereof detailing any party to take any action in the Texas Litigation during the Agreement Effective Periodsuch breach.
Appears in 1 contract
Samples: Restructuring Support Agreement (Washington Prime Group, L.P.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) terminated, in each case, with respect to (i) the Consenting Senior Creditors AHG Noteholders, by the Required Consenting Senior CreditorsAHG Noteholders, (ii) the SoftBank Parties, by the SoftBank Parties, and (iii) Cupar, by Cupar, (a) solely to the extent that such event materially, adversely and disproportionately affects Cupar, and (b) with respect who may only terminate this Agreement as to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each caseitself, by the delivery to the Company Parties of a written notice to all other Parties in accordance with Section 17.11 13.10 hereof upon the occurrence and continuation of any of the following events, unless waived, in writing, by the terminating Consenting Stakeholders on a prospective or retroactive basis:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, undertakings, commitments, or covenants of the Company Parties set forth in this Agreement that remains uncured for five (i5) is adverse Business Days after such terminating Consenting Stakeholder transmits a written notice to the Company Parties in accordance with Section 13.10 hereof detailing any such breach;
(b) solely as to the Consenting Stakeholders seeking termination pursuant AHG Noteholders, the breach in any material respect by any of the SoftBank Parties, and solely as to the SoftBank Parties, the breach in any material respect by the Consenting AHG Noteholders, in each case of any of the representations, warranties, undertakings, commitments, or covenants of the SoftBank Parties or, the Consenting AHG Noteholders, as applicable, set forth in this provision and (ii) Agreement that remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice in accordance with Section 17.11 13.10 hereof detailing any such breach;
(b) ; provided, neither a Consenting AHG Noteholder nor a SoftBank Party shall have the Company Parties right to terminate this Agreement: (i) withdraw if such terminating Consenting Stakeholder is also in material breach of any of the Plan representations, warranties, or covenants of such terminating Consenting Stakeholder set forth in this Agreement; or (ii) publicly announce their intention not to support upon the Restructuring Transactionsbreach in any material respect by one or more of the Consenting AHG Noteholders of any of the representations, warranties, undertakings, commitments, or covenants, the non-breaching Consenting Noteholders still hold more than two-thirds 66.7% of the aggregate outstanding principal amount of 1L Series 1 Notes;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen thirty (1530) Business Days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice to the Company Parties in accordance with Section 17.11 13.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(d) any Company Party exercises a Fiduciary Out;
(e) (i) the Bankruptcy Court enters the Confirmation Order in a form not acceptable to the Required Consenting Stakeholders, (ii) the Bankruptcy Court enters an order denying confirmation of the Plan, or (iii) the Confirmation Order is reversed or vacated, and the Bankruptcy Court does not enter a revised Confirmation Order reasonably acceptable to the Required Consenting Stakeholders within five (5) Business Days of such reversal or vacation;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections section 1106(a)(3) and (4) of the Bankruptcy Code Code, a trustee, or a trustee responsible officer, in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating dismissing the (interim Chapter 11 Cases, or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the failure by a Company Party to comply with any of the Milestones unless such Milestone is extended by written consent of the Company Parties and the Required Consenting Stakeholders in accordance with this Agreement;
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement, the Definitive Documents, or the Restructuring Transactions, and such inconsistent relief is not dismissed, vacated, or modified to be consistent with this Agreement and the Restructuring Transactions within five (5) Business Days following written notice thereof to the Company Parties by such terminating Consenting Stakeholder;
(i) (1) the occurrence of a “Termination Event” under the Cash Collateral Orders that has not been waived or timely cured in accordance therewith; (2) any Cash Collateral Order is entered in form and substance not acceptable to the Required Consenting Stakeholders, and (3) any Cash Collateral Order is reversed, stayed, dismissed, vacated, reconsidered, or modified or amended in a manner that is not approved by Required Consenting Stakeholders;
(j) (i) the occurrence of a “Termination Event” under the DIP TLC Orders that has not been waived or timely cured in accordance therewith; (ii) any DIP TLC Order is entered in a form not acceptable to the Required Consenting Stakeholders, or (iii) any DIP TLC Order is reversed, stayed, dismissed, vacated, reconsidered, modified or amended in a manner that is not approved by Required Consenting Stakeholders;
(k) the Bankruptcy Court enters an order (or in the Company Parties seek an oral decision delivered from the bench findingorder) invalidating, determiningdisallowing, subordinating, recharacterizing, or concluding that the classification limiting, as applicable, any of the Junior Debt Claims under Company Claims/Interests of the Plan will not be approved Consenting Stakeholders, the liens securing the company Claims/Interests of the Consenting Stakeholders, or the adequate protection liens granted in any Cash Collateral Order or DIP LC Orders, or any official committee or other person obtains standing to pursue any Challenge (as defined in the Cash Collateral Orders);
(l) any of the Company Parties consummates or enters into a definitive agreement evidencing any merger, consolidation, disposition of material assets, acquisition of material assets, or similar transaction, pays any dividends, or incurs any indebtedness for borrowed money, in each case outside the ordinary course of business, in each case other than: (i) the Restructuring Transactions or (ii) with the prior consent of the Required Consenting Stakeholders
(m) any of the Company Parties enters into a material executory contract, lease, any key employee incentive plan or key employee retention plan, any new or amended agreement regarding executive compensation, or other compensation arrangement, in each case, outside of the ordinary course of business, in each case other than with the prior consent of the Required Consenting Stakeholders;
(n) the filing by any Company Party of any Definitive Document, motion, or pleading with the Bankruptcy Court for any reason or does that is not comply consistent in all material respects with this Agreement, and such filing is not withdrawn (or, in the requirements case of a motion that has already been approved by an order of the Bankruptcy CodeCourt at the time the Company Parties are provided with such notice, such order is not stayed, reversed, or vacated) within five (5) Business Days following written notice thereof to the Company Parties by the Required Consenting Stakeholders;
(ho) the Bankruptcy Court grants relief from any stay of proceeding (including, without limitation, the automatic stay) so as to allow a third party to proceed with foreclosure (or granting of a deed in lieu of foreclosure or other remedy against any asset with a value in excess of $10,000,000 or to permit other actions that would have a material adverse effect on the company Parties without the written consent of the Required Consenting Stakeholders;
(p) the Company Parties lose the exclusive right to file and solicit acceptances of a chapter 11 plan;
(q) the failure of any Milestone the Company Parties to occur promptly pay Consenting Stakeholder Transaction Expenses as and when specified in the Restructuring Term Sheetdue;
(r) any Company Party withdraws or revokes the Plan or files, proposes or otherwise supports any (i) Alternative Restructuring Proposal, including making any statements indicating intent to pursue any Alternative Restructuring Proposal, or (ii) amendment or modification to the Definitive Documents containing any terms that are materially inconsistent with the implementation of, and the terms of this Agreement without the prior written consent of the Required Consenting Stakeholders which remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Stakeholder transmits a termination written notice in accordance with Section 13.10 detailing any such breach;
(s) any Company Party enters into a definitive agreement with respect to an Alternative Restructuring Proposal;
(t) any of the Company Parties’ right Parties (i) files any motion seeking to consensually use cash collateral following avoid, disallow, subordinate, or recharacterize any Notes Claims, any Prepetition LC Facility Claims, or any lien or interest held by any Consenting Stakeholders arising under or relating to the occurrence Indentures, the Notes, the Prepetition LC Credit Agreement, or the Prepetition LC Facility Claims or (ii) supports any application, adversary proceeding, or Cause of Action filed by a Termination Event as defined third party against a Consenting Stakeholder, or consents to the standing of any such third party to bring such application, adversary proceeding, or Cause of Action against a Consenting Stakeholder, including, without limitation, any application, adversary proceeding, or Cause of Action referred to in the immediately preceding clause (interim or final, as applicable) Financing Order; ori);
(ju) solely with respect other than the Chapter 11 Cases and any Insolvency Proceedings that are consented to by the Required Consenting Senior CreditorsStakeholders, if any Company Party does not immediately seek an extension of (i) voluntarily commences any deadlinecase or files any petition seeking bankruptcy, orderwinding up, dissolution, liquidation, or proceeding foreign bankruptcy, insolvency, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official with respect to any Company party or for a substantial part of such Company Party’s assets, (iv) makes a general assignment or arrangement for the benefit of creditors, or (v) takes any corporate action for the purpose of authorizing any of the forgoing;
(v) any Definitive Document or any other document or agreement necessary to consummate the Restructuring Transactions is filed or solicited in form or substance not acceptable to the Texas Litigation Required Consenting Stakeholders or inconsistent with this Agreement;
(w) any Company Party (i) amending, or modifying, or filing a pleading seeking authority to amend or modify, the Definitive Documents in a manner that would require any party is inconsistent with this Agreement, (ii) suspending or revoking the Restructuring Transactions or (iii) publicly announcing its intention to take any such action listed in the Texas Litigation during foregoing clauses (i) and (ii) of this subsection;
(x) any Company Party incurs any liens or security interest, or encumbrance other than: (i) those existing immediately prior to the date hereof, (ii) those permitted pursuant to the DIP LC Facility, or (iii) those granted under or permitted by the DIP TLC Orders and Cash Collateral Orders;
(y) the amendment, termination, or modification of any agreement, document, instrument, indenture or other writing evidencing any indebtedness or prepayment, repayment, redemption, defeasance, purchase, acquisition, termination, or discharge of any such indebtedness without the consent of the Required Consenting Stakeholders;
(z) any Company Party (i) consummating or entering into a definitive agreement evidencing, or filing one or more motion or application seeking authority to consummate or enter into, any merger, consolidation, disposition of material assets, acquisition or sale of material assets, or similar transaction, (ii) making any material investments, (iii) paying any dividend, or (iv) incurring any indebtedness for borrowed money, in each case (x) outside the ordinary course of business, (y) in excess of $2,000,000 in the aggregate, or (z) other than as contemplated by this Agreement Effective Periodand the Restructuring Transactions, unless the SoftBank Parties and the Required Consenting AHG Noteholders have provided prior written consent;
(aa) any payment in satisfaction of any existing funded indebtedness other than as contemplated by the Restructuring Transactions or as authorized by the Bankruptcy Court;
(bb) the entry of any order authorizing the use of cash collateral that is not in the form of the Cash Collateral Orders, or otherwise acceptable to the Required Consenting Stakeholders;
(cc) the Cash Collateral Orders cease to be in full force and effect for any reason or an order shall be entered (or the Company Parties seek an order) reversing, amending, supplementing, staying, vacating, or otherwise modifying the Cash Collateral Orders without the written consent of the Required Consenting AHG Noteholders, or the SoftBank Parties, as applicable; or
(dd) the entry of any order authorizing the use of DIP financing that is not in the form of the DIP TLC Orders, or otherwise acceptable to the Required Consenting Stakeholders.
Appears in 1 contract
Consenting Stakeholder Termination Events. This Agreement may be terminated Each of (ai) with respect to the Consenting Senior Creditors by the Required Consenting Senior CreditorsLenders, (bii) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, Noteholders and (ciii) with respect to acting together, the Consenting Sponsors by the Consenting Sponsors, Second Lien Lenders (in each case, by where applicable) shall have the delivery right, but not the obligation, upon written notice to the Company Parties other Parties, to terminate the obligations of a written notice in accordance with Section 17.11 hereof the Consenting Lenders, the Consenting Noteholders or the Second Lien Lenders, as applicable, under this Agreement upon the occurrence and continuation of any of the following eventsevents (each, a “Consenting Stakeholder Termination Event”), unless waived, in writing, by the Required Consenting Lenders, the Required Consenting Noteholders or the Second Lien Lenders, as applicable, on a prospective or retroactive basis:
(a) the breach in failure to meet any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that Milestone unless (i) such failure is adverse to the result of any act, omission or delay on the part of any (x) Consenting Stakeholders seeking Lender (solely in its capacity as a Consenting Lender), in the case of termination pursuant to by the Required Consenting Lenders, (y) Consenting Noteholder (solely in its capacity as a Consenting Noteholder), in the case of termination by the Required Consenting Noteholders or (z) Second Lien Lender (solely in its capacity as a Second Lien Lender), in the case of termination by the Second Lien Lenders, in violation of its obligations under this provision and Agreement or (ii) remains uncured (to such Milestone is waived by the extent curable) for ten (10) Business Days after such terminating Required Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such breach28 of this Agreement;
(b) in the Company Parties (i) withdraw event the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determinesChapter 11 Cases are commenced, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) an order dismissing one or more of the Chapter 11 Cases;
(c) in the event the Chapter 11 Cases are commenced, the Bankruptcy Court enters an order appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code in one or more of the Chapter 11 Cases;
(d) with respect to the Required Consenting Lenders, the Definitive Documentation does not conform in all material economic respects to this Agreement and the Term Sheet with respect to the treatment, claims or rights and benefits granted to, or received by, the Consenting Lenders, or otherwise is not in form and substance reasonably acceptable to the Required Consenting Lenders (to the extent such acceptance is required by Section 4(b)) (in each instance, unless such Definitive Documentation has otherwise been previously agreed to, in writing, by the Required Consenting Lenders);
(e) with respect to the Required Consenting Noteholders, the Definitive Documentation does not conform in all material economic respects to this Agreement and the Term Sheet with respect to the treatment, claims or rights and benefits granted to, or received by, the Consenting Noteholders or otherwise is not in form and substance reasonably acceptable to the Required Consenting Noteholders (to the extent such acceptance is required by Section 4(b)) (in each instance, unless such Definitive Documentation has been previously agreed to in writing by the Required Consenting Noteholders);
(f) with respect to the Second Lien Lenders, the Definitive Documentation does not conform in all material economic respects to this Agreement and Term Sheet with respect to the treatment, claims or rights and benefits granted to, or received by, the Second Lien Lenders or otherwise is not in form and substance reasonably acceptable to the Second Lien Lenders (to the extent such acceptance is required by Section 4(b)) (in each instance, unless such Definitive Documentation has previously been agreed to in writing by the Second Lien Lenders);
(g) in the event the Chapter 11 Cases are commenced, any Affinion Party files with the Bankruptcy Court any motion or application seeking authority to sell any material assets that is not contemplated in the Term Sheet without the prior written consent of the Required Consenting Lenders, the Required Consenting Noteholders and the Second Lien Lenders;
(h) in the event the Chapter 11 Cases are commenced, the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any material assets of the Affinion Parties;
(1) any Affinion Party: (A) materially breaches any representation, warranty, or covenant under this Agreement, which breach is not cured within five (5) Business Days after receiving written notice of such breach, (B) withdraws or revokes the Plan, (C) amends or modifies the Definitive Documentation in a manner that is inconsistent in any material respect with the terms set forth in the Term Sheet and this Agreement, the other rights and benefits granted to, or received by, the Consenting Lenders, the Consenting Noteholders or the Second Lien Lenders, as applicable, pursuant to the Term Sheet or this Agreement, or the implementation thereof, unless such amendment or modification is otherwise consented to in accordance with Section 28 hereof or (D) files, publicly announces, or informs the Consenting Stakeholders of its intention to file a chapter 11 plan that contains terms and conditions that (i) do not provide the Consenting Lenders, the Consenting Noteholders or the Second Lien Lenders, as applicable, with the economic recovery set forth on, or the other rights and benefits granted to, or received by, the Consenting Lenders, the Consenting Noteholders or the Second Lien Lenders, as applicable, pursuant to the Term Sheet or this Agreement and (ii) are not otherwise consistent with this Agreement and the Term Sheet; (2) the Required Consenting Lenders (so long as such terminating Consenting Stakeholder is not a Consenting Lender) materially breach any representation, warranty or covenant under this Agreement, which breach or breaches are not cured within five (5) Business Days after receiving written notice of such breaches; (3) the Required Consenting Noteholders (so long as such terminating Consenting Stakeholder is not a Consenting Noteholder) materially breach any representation, warranty or covenant under this Agreement, which breach or breaches are not cured within five (5) Business Days after receiving written notice of such breaches; or (4) any Consenting Stakeholder that has entered into the Second Lien Commitment Letter breaches its obligations (i) under Section 6(f) of this Agreement not to terminate such commitment or (ii) under the Second Lien Commitment Letter to fund the Second Lien Credit Facility, in either case which breach or breaches are not cured within five (5) Business Days after receiving written notice of such breaches;
(j) one or more of the DIP Commitments shall have been terminated by an Affinion Party without the consent of the Backstop Parties;
(k) the occurrence of the termination of the Forbearance Agreement; provided, however, that this provision shall not apply if the Chapter 11 Cases are filed;
(l) in the event the Chapter 11 Cases are commenced, either (i) any Affinion Party files with the Bankruptcy Court a motion, application, or adversary proceeding (or any Affinion Party supports any such motion, application, or adversary proceeding filed or commenced by any third party) (a) challenging the validity, enforceability, or priority of, or seeking avoidance or subordination of, the Lender Claims, the Note Claims or the Second Lien Claims, as applicable or (b) asserting any other cause of action against the Consenting Lenders, the Administrative Agent, the Consenting Noteholders, the Second Lien Lenders or the Trustee, as applicable, other than for the enforcement of the obligations of the Consenting Stakeholders hereunder or (ii) the Bankruptcy Court enters an order providing relief against any Consenting Lender, the Administrative Agent, any Consenting Noteholder, any Second Lien Lender or in an oral decision delivered from the bench findingTrustee, determiningas applicable, or concluding that the classification with respect to any of the Junior Debt Claims under the Plan will not be approved foregoing causes of action or proceedings filed by any Affinion Party;
(m) if the Bankruptcy Court for or other governmental authority with jurisdiction shall have issued any reason order, injunction, or does not comply with other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins, or otherwise prohibits the requirements implementation of the Bankruptcy Code;
(h) Transactions in a way that cannot be remedied by the failure Affinion Parties or the effect of any Milestone to occur as which would render the Plan incapable of consummation on the terms set forth in this Agreement and when specified in the Restructuring Term Sheet;
(in) a termination any Affinion Party terminates its obligations under and in accordance with Section 9(d) of this Agreement;
(o) the Affinion Parties fail to timely pay the Restructuring Expenses in accordance with Section 15 hereof;
(p) in the event the Chapter 11 Cases are commenced, the entry of an order by the Bankruptcy Court or any other court with appropriate jurisdiction denying confirmation of the Company Parties’ right to consensually use cash collateral following Plan, or if the occurrence of Confirmation Order is reversed or vacated by a Termination Event as defined final order;
(q) in any instance, the Consenting Stakeholders do not hold, in the aggregate, at least 66-2/3% of the principal amount outstanding of all of each of the Lender Claims, the Second Lien Claims and the Note Claims;
(interim r) in the event the Chapter 11 Cases are commenced, the Affinion Parties execute or final, as applicablefile with the Bankruptcy Court any Definitive Documentation that is inconsistent with the requirements set forth in Section 4(b) Financing Orderof this Agreement; or
(js) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action event the Chapter 11 Cases are commenced, the Bankruptcy Court enters an order in the Texas Litigation during Chapter 11 Cases terminating any of the Agreement Effective PeriodAffinion Parties’ exclusive right to file a plan or plans of reorganization pursuant to section 1121 of the Bankruptcy Code.
Appears in 1 contract
Consenting Stakeholder Termination Events. This Agreement may be terminated with respect to (a) with respect to the Consenting Senior Creditors Term Loan Lenders, by the Required Consenting Senior CreditorsTerm Loan Lenders, and (b) with respect to the any other Consenting 2021 Noteholders Stakeholder, by the Required such Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting SponsorsStakeholder, in each case, by the delivery to the Company Parties of a upon written notice to all Parties in accordance with Section 17.11 14.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders Term Loan Lender(s) seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten five (105) Business Days after such terminating Consenting Stakeholders Term Loan Lender(s) transmit a written notice in accordance with Section 17.11 14.10 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen ten (1510) Business Days after such terminating the Required Consenting Stakeholders Term Loan Lenders transmit a written notice in accordance with Section 17.11 14.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ec) the Bankruptcy Court enters an order denying confirmation of the Plan;; or
(fd) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party or any of its Affiliates seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Term Loan Lenders, not to be unreasonably withheld), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; ;
(e) the failure to meet a Milestone, which has not been waived or extended in a manner consistent with this Agreement, unless such failure is the result of any act, omission, or delay on the part of a terminating Consenting Stakeholder in violation of its obligations under this Agreement;
(vf) dismissing one any Definitive Document is amended, modified, or more supplemented in a manner that is (i) inconsistent with this Agreement and (b) materially, adversely and disproportionately affects the rights or treatment of the Chapter 11 Casesterminating Consenting Stakeholder; provided that this section shall only apply to a Consenting Stakeholder whose rights or treatment are materially, adversely and disproportionately affected by such amendment, modification, or supplement in a manner inconsistent with this Agreement and, if a Consenting Stakeholder terminates this Agreement, such Agreement shall otherwise remain in full force and effect with respect to all other Parties;
(g) a Company Party or any of its Affiliates (i) publicly announces, or announces in writing, to any of the Consenting Term Loan Lenders or other holders of Company Claims/Equity Interests, its intention not to support or pursue the Restructuring Transactions; (ii) enter into definitive documentation regarding an Alternative Restructuring Proposal without the consent of the Required Consenting Term Loan Lenders; or (iii) breaches any of the covenants, agreements or obligations set forth in Section 6.02(e) hereof;
(h) a Company Party or any of its Affiliates (i) repudiates or asserts a defense to any obligation or liability under the Loan Documents or this Agreement or (ii) initiates any action, suit or proceeding, at law or in equity, against the Agent or any Consenting Term Loan Lender;
(i) if a Company Party (i) voluntarily commences any case or files any petition seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization, or other relief under any federal, state, or foreign bankruptcy, insolvency, administrative receivership, or similar Law now or hereafter in effect, except as contemplated by this Agreement, (ii) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described in the immediately preceding clause (i) or such involuntary proceeding or petition remains pending as of the date that is ten (10) calendar days after the filing of such involuntary proceeding or petition, (iii) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official with respect to any Company Party or for a substantial part of such Company Party’s assets, or (iv) makes a general assignment or arrangement for the benefit of creditors;
(j) a Company Party or any of its Affiliates files or seeks approval of, or the Bankruptcy Court enters an a final order approving any Definitive Document that is materially inconsistent with this Agreement and materially adverse to any Consenting Stakeholder;
(k) a Company Party or in an oral decision delivered from any of its Affiliates loses the bench finding, determining, exclusive right to file a chapter 11 plan or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements to solicit acceptances thereof pursuant to section 1121 of the Bankruptcy Code;
(hl) a Company Party or any of its Affiliates files or seeks approval of, or the failure of Bankruptcy Court enters any Milestone to occur as and when specified in the Restructuring Term Sheetorder approving, any Definitive Document that is not materially consistent with this Agreement;
(m) a Company Party or any of its Affiliates (i) files, amends, or modifies, or files a termination pleading seeking approval of, any Definitive Document or authority to amend or modify any Definitive Document, in a manner that is materially inconsistent with this Agreement or constitutes a material breach of this Agreement that has not been withdrawn within two (2) Business Days of receipt by the Company Parties of written notice (e-mail being sufficient) from the Required Consenting Stakeholders thereof , (ii) withdraws the Plan without the prior consent of the Company Parties’ right Required Consenting Stakeholders, or (iii) publicly announces its intention to consensually use cash collateral following the occurrence of a Termination Event as defined take any such acts listed in the foregoing clause (interim i) or final, as applicable) Financing Order(ii); or
(jn) solely with respect to the entry of an order by the Bankruptcy Court or any other court of competent jurisdiction, or the filing of a motion, application, or other pleading by a Company Party seeking an order (without the prior written consent of the Required Consenting Senior CreditorsStakeholders (which may be by email)), if any Company Party does not immediately seek an extension of any deadline, order, reversing or proceeding in vacating the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodConfirmation Order.
Appears in 1 contract
Samples: Restructuring Support Agreement (Vertex Energy Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Term Loan Lender, by the Required Consenting Senior CreditorsTerm Loan Lender, (b) with respect to the Consenting 2021 Noteholders ABL Lenders, by the Required Consenting 2021 Noteholders, and ABL Lenders; (c) with respect to the Consenting Sponsors Secured Noteholders, by the Consenting SponsorsSecured Noteholders; and (d) with respect to the Consenting Unsecured Noteholders, by the Required Consenting Unsecured Noteholders, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 15.10 hereof upon the occurrence and and/or continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is materially adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for five (to the extent curable) for ten (105) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins would reasonably be expected to prevent the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen ten (1510) Business Days after such terminating Consenting Stakeholders transmit delivery of a written notice to the Company in accordance with Section 17.11 15.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ec) the Bankruptcy Court (i) enters an order denying confirmation of the Plan, (ii) enters the Confirmation Order in a form not acceptable to Highbridge and the Required Consenting Unsecured Noteholders and does not enter a revised Confirmation Order reasonably acceptable to Highbridge and the Required Consenting Unsecured Noteholders in the event the Confirmation Order is reversed or vacated, within five (5) Business Days, (iii) does not enter a revised Confirmation Order reasonably acceptable to Highbridge and the Required Consenting Unsecured Noteholders in the event the Confirmation Order is reversed or vacated, within five (5) Business Days of such reversal or vacation, or (iv) grants relief that is inconsistent in any material respect with this Agreement, the Definitive Documents or the Restructuring Transactions, and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring Transactions within five (5) Business Days following written notice thereof to the Company Parties by the terminating Consenting Stakeholder;
(fd) the entry of an order by the Bankruptcy Court, or the filing Filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; ;
(e) a Company Party (i) withdraws or revokes the Plan or publicly announces its intention to withdraw the Plan, (ii) files, proposes or otherwise supports or approves an Alternative Restructuring Proposal or enters into a definitive agreement with respect to an Alternative Restructuring Proposal or (viii) dismissing one files, proposes or more otherwise supports or approves any amendment or modification to the Definitive Documents containing any terms that are materially inconsistent with the implementation of, and the terms of, this Agreement without the prior written consent of the Chapter 11 Casesterminating Consenting Stakeholder which remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 15.10 detailing any such breach;
(f) the Milestones have not been achieved, extended or waived in accordance with this Agreement; provided that, for the avoidance of doubt, no Party may terminate this Agreement on account of failure to satisfy a Milestone to the extent that such failure is primarily caused by or primarily resulting from such Party’s own action (or failure to act) in breach of the terms of this Agreement;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification terminating any Company Party’s exclusive right to file and/or solicit acceptances of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements a plan of the Bankruptcy Codereorganization;
(h) any of the failure Company Parties consummates or enters into a definitive agreement evidencing any merger, consolidation, disposition of material assets, acquisition of material assets, or similar transaction, pays any Milestone to occur as and when specified dividend, or incurs any indebtedness for borrowed money, in each case outside the ordinary course of business, in each case other than: (i) the Restructuring Term SheetTransactions or (ii) with the prior consent of Highbridge and the Required Consenting Unsecured Noteholders;
(i) a termination any of the Company Parties’ right Parties enters into an executory contract or lease involving consideration of more than $10 million, any key employee incentive plan or key employee retention plan, any new or amended agreement regarding executive compensation, or other compensation arrangement, in each case, outside of the ordinary course of business, in each case other than with the prior consent (such consent not to consensually use cash collateral following be unreasonably withheld, conditioned, or delayed) of Highbridge and the occurrence Required Consenting Unsecured Noteholders;
(j) the filing by any Company Party of any Definitive Document, amendments, modifications or supplements thereto, motion or pleading with the Bankruptcy Court that is not consistent in all material respects with this Agreement, and such filing is not withdrawn (or, in the case of a Termination Event as defined motion that has already been approved by an order of the Bankruptcy Court at the time the Company Parties are provided with such notice, such order is not stayed, reversed or vacated) within five (5) Business Days following written notice thereof to the Company Parties by Highbridge or the Required Consenting Unsecured Noteholders;
(k) any of the Company Parties (i) files any motion seeking to avoid, disallow, subordinate, or recharacterize any DIP ABL Claim, DIP Term Claim, Term Loan Claim, ABL Claim, Secured Notes Claim or Convertible Notes Claim held by any Consenting Stakeholder or (ii) supports any application, adversary proceeding or Cause of Action referred to in the immediately preceding clause (interim i) filed by a third party, or finalconsents to the standing of any such third party to bring such application, adversary proceeding or Cause of Action;
(l) other than the Chapter 11 Cases or a voluntary chapter 11 filing under the Bankruptcy Code by Company Parties formed or otherwise based in North America, if any Company Party: (i) voluntarily commences any case or files any petition seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, receivership, reorganization (by way of voluntary administration, deed of company arrangement or otherwise) or other relief under any federal, state or foreign bankruptcy, insolvency, arrangement, scheme of arrangement, administrative receivership or similar law now or hereafter in effect, except as applicablecontemplated by this Agreement, (ii) Financing Orderconsents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described in the preceding subsection (i), (iii) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator or similar official with respect to any Company Party or for a substantial part of such Company Party’s assets, (iv) makes a general assignment or arrangement for the benefit of creditors, or (v) takes any corporate action for the purpose of authorizing any of the foregoing;
(m) the Bankruptcy Court grants relief terminating, annulling or modifying the automatic stay (as set forth in Section 362 of the Bankruptcy Code) with regard to any assets of the Debtors having an aggregate fair market value in excess of $25 million without the written consent of Highbridge and the Required Consenting Unsecured Noteholders; or
(jn) solely with respect the termination of this Agreement as to the Required (i) Consenting Senior CreditorsTerm Loan Lender, (ii) the Consenting Secured Noteholders or (iii) the Consenting Unsecured Noteholders, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding such termination results in the Texas Litigation that would require any Consenting Unsecured Noteholders party to take any action in this agreement holding less than 66.67% of the Texas Litigation during the Agreement Effective PeriodConvertible Notes.
Appears in 1 contract
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Stakeholders, by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting SponsorsStakeholders, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 15.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen thirty (1530) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fc) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement;
(d) the occurrence of an Event of Default under and as defined in the Cash Collateral Order(s) for which the Consenting Stakeholders have not provided a forbearance or that has not been cured (if susceptible to cure) or waived in accordance with the terms thereof; provided, that the right to terminate this Agreement under this Section 12.01(d) shall not be available to any Consenting Stakeholder if the occurrence of such Event of Default is caused by, or results from, the material breach by such Consenting Stakeholder of its covenants, agreements, or other obligations under the Cash Collateral Order(s);
(ve) dismissing one the commencement of an involuntary bankruptcy case against any Company Party under the Bankruptcy Code, if such involuntary case is not dismissed within forty-five (45) calendar days after the filing thereof, or more if a court order grants the relief sought in such involuntary case;
(f) any of the Chapter 11 CasesMilestones (as may have been extended in accordance with the terms hereof) is not achieved, except where such Milestone has been waived or extended in accordance with the terms hereof; provided, that the right to terminate this Agreement under this Section 12.01(f) shall not be available to any Consenting Stakeholder if the failure of such Milestone to be achieved is caused by, or results from, the material breach by such Consenting Stakeholder of its covenants, agreements, or other obligations under this Agreement;
(g) the Company Parties’ exclusive right to file a plan or plans of reorganization or to solicit acceptances thereof pursuant to section 1121 of the Bankruptcy Code, including all extensions thereof, expires or is terminated by order of the Bankruptcy Court or otherwise;
(h) any court of competent jurisdiction has entered a final, non-appealable judgment or order declaring this Agreement to be unenforceable;
(i) the rejection of this Agreement, or the filing of a motion by a Company Party seeking such relief;
(j) any Definitive Document or any document or agreement necessary to consummate the Transactions is not consistent with the approval or consent rights hereunder (and the Company Parties do not revise such Definitive Document, document or agreement as reasonably requested by the Required Consenting Stakeholders) or the Company withdraws the Plan without the consent of the Required Consenting Stakeholders;
(k) any Company Party files, amends, or modifies a pleading seeking approval of, any Definitive Document or authority to amend or modify any Definitive Document, in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement without the prior written consent of the Required Consenting Stakeholders and such motion or pleading has not been withdrawn within five (5) Business Days of such filing;
(l) any Company Party (i) makes a public announcement that it is proceeding with an Alternative Transaction Proposal without the consent of the Required Consenting Stakeholders, (ii) files a motion with the Bankruptcy Court seeking the approval of an Alternative Transaction Proposal or supports (or fails to timely object to) another party in filing or seeking approval of an Alternative Transaction Proposal without the consent of the Required Consenting Stakeholders, (iii) agrees to pursue (including, for the avoidance of doubt, as may be evidenced by an executed term sheet, an executed letter of intent or similar binding documentation) an Alternative Transaction Proposal without the consent of the Required Consenting Stakeholders, or (iv) notifies the Consenting Stakeholders pursuant to Section 8 hereof of its determination to take any action or to refrain from taking any action with respect to the Transactions to the extent taking or failing to take such action would be materially inconsistent with this Agreement;
(m) any Company Party files a motion, application, or adversary proceeding (or a Company Party supports any such motion, application, or adversary proceeding filed or commenced by any third party other than the Consenting Stakeholders) challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the 2028 Senior Secured Notes or asserting any other cause of action against the Consenting Stakeholders, as applicable, or with respect to or relating to such 2028 Senior Secured Notes, or the prepetition liens securing any of the 2028 Senior Secured Notes, other than an order approving the transactions as contemplated by this Agreement or the Plan, as applicable;
(n) the Bankruptcy Court enters any order authorizing the use of cash collateral or postpetition financing that is not in a form and substance acceptable to the Required Consenting Stakeholders;
(o) the Bankruptcy Court enters an order denying confirmation of the Plan and such order remains in effect for fourteen (14) days after entry of such order;
(p) (1) any of the Confirmation Order, order(s) approving the Disclosure Statement or in an oral decision delivered from the bench finding, determiningSolicitation Materials, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved any other material order entered by the Bankruptcy Court for any reason is reversed, stayed, dismissed, vacated, reconsidered, modified or does not comply with amended without the requirements consent of the Bankruptcy Code;
Required Consenting Stakeholders, or (h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i2) a termination of motion for reconsideration, reargument, or rehearing with respect to any such order has been filed and the Company Parties’ right Parties have failed to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Ordertimely object to such motion; or
(jq) solely with respect the Bankruptcy Court enters an order granting relief from the automatic stay imposed by section 362 of the Bankruptcy Code authorizing any party to the Required Consenting Senior Creditors, if proceed against any material asset of any Company Party does not immediately seek an extension of or that would materially and adversely affect any deadline, order, or proceeding Company Party’s ability to operate their businesses in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodordinary course.
Appears in 1 contract
Consenting Stakeholder Termination Events. This Agreement (A) may be terminated upon the occurrence of any of the Events set forth in clauses (a) with respect through (m) below, (1) as to the Consenting Senior Creditors Term Loan Lenders, by the Required Consenting Senior CreditorsTerm Loan Lenders, (b2) with respect as to the Consenting 2021 Noteholders Unsecured Noteholders, by the Required Consenting 2021 Unsecured Noteholders, and (c3) with respect as to the Consenting Sponsors either Sponsor, by the Consenting Sponsorssuch Sponsor, in each case, case by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof 14.10 of this Agreement; or (B) may be terminated upon the occurrence and continuation of any of the following eventsEvent set forth in clause (m) below as to any individual Consenting Stakeholder by the delivery by such Consenting Stakeholder to the other Parties of a written notice in accordance with Section 14.10 of this Agreement:
(a) the breach in any material respect by a Company Party (other than by any Consenting Stakeholders asserting such breach) of any of the representations, warranties, covenants, or covenants commitments of the Company Parties Party set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision or could reasonably be expected to have a material adverse impact on the timely consummation of the Recapitalization Transactions and (ii) remains uncured for seven (to the extent curable) for ten (107) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 14.10 of this Agreement detailing any such breach; provided, that for the avoidance of doubt, the execution, amendment, or modification of this Agreement or any Definitive Document (as applicable) without obtaining the requisite consent(s) set forth in this Agreement (including Section 3 and Section 13 of this Agreement) or in such Definitive Document, as applicable, constitutes a material breach for purposes hereof;
(b) only with respect to the Consenting Unsecured Noteholders and/or the Consenting Term Loan Lenders, if the Ares Sponsor, the CPPIB Sponsor, or any Company Parties (i) withdraw Party publicly announces its intention to pursue an Alternative Transaction Proposal, or renounces this Agreement and/or the Plan or (ii) publicly announce their intention not to support the Restructuring Recapitalization Transactions;
(c) only as to the Consenting Term Loan Lenders, if (i) the Commitment Letter is terminated, rescinded, breached in any Company Party determinesmaterial respect, or renounced by any party to the Commitment Letter, or otherwise ceases to be in full force and effect, except in connection with a funding under the Commitment Letter (or any funding under the Commitment Letter ceases to be subject to an escrow for purposes of funding the Recapitalization Transactions prior to the Effective Date), or is amended, modified, waived, or supplemented in any manner that is adverse to the Consenting Term Loan Lenders seeking termination pursuant to this provision; and (ii) such Event remains uncured for five (5) Business Days after the Required Consenting Term Loan Lenders transmit a written notice in accordance with Section 7.01, 14.10 of this Agreement detailing any such Event (it being understood that such Event may be cured if the Commitment Letter is replaced by a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect commitment on terms not materially less favorable to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable LawConsenting Term Loan Lenders in any respect);
(d) only as to the Consenting Unsecured Noteholders, if (i) (A) the Commitment Letter is terminated, rescinded, breached in any material respect, or renounced by the Ares Sponsor, the CPPIB Sponsor, or any Company Party, or the Commitment Letter is amended, modified, waived, or supplemented (in each case, other than by any Consenting Unsecured Noteholder party thereto) in any manner that is adverse to the Consenting Unsecured Noteholders seeking termination pursuant to this provision; and (B) such Event remains uncured for five (5) Business Days after the Required Consenting Unsecured Noteholders transmit a written notice in accordance with Section 14.10 of this Agreement detailing any such Event (it being understood that such Event may be cured if the Commitment Letter is replaced by a commitment on terms not materially less favorable to the Consenting Unsecured Noteholders in any respect provided that the termination, rescindment, breach in any material respect, or renunciation of the Commitment Letter by the Ares Sponsor or CPPIB Sponsor cannot be cured with a replacement commitment by a party other than the Ares Sponsor or CPPIB Sponsor); or (ii) without the prior written consent of the Required Consenting Unsecured Noteholders, the Recapitalization Term Sheet or any executed Definitive Documents are amended, modified, or executed (as applicable) in a manner that is inconsistent in any respect with the terms, conditions and covenants relating to and effecting the agreements regarding the MT Preferred Equity set forth in the Recapitalization Term Sheet;
(e) only as to the Sponsors, if (i) the Commitment Letter is terminated, rescinded, breached in any material respect, or renounced by any of the Consenting Unsecured Noteholders (other than any Sponsor) party thereto, or is amended, modified, waived, or supplemented (in each case, other than by any Sponsor) in any manner that is adverse to the Sponsor seeking termination pursuant to this provision; and (ii) such Event remains uncured for five (5) Business Days after such terminating Sponsor transmits a written notice in accordance with Section 14.10 of this Agreement detailing any such Event (it being understood that such Event may be cured if the Commitment Letter is replaced by a commitment on terms not materially less favorable to the Sponsors in any respect);
(f) any Company Party executes, amends, or modifies the Recapitalization Term Sheet or any executed Definitive Document in a manner that is (i) inconsistent in any respect with the terms set forth in the Recapitalization Term Sheet or this Agreement, the other rights and benefits granted to, or received by the Consenting Stakeholders pursuant to the Recapitalization Term Sheet or this Agreement (including any Consenting Stakeholders’ consent rights regarding any Definitive Document), or the implementation thereof, unless, in the case of amendment or modification of any Definitive Document, such amendment or modification is otherwise consented to in accordance with Section 13 of this Agreement and/or the applicable provisions of the Recapitalization Term Sheet, or (ii) adverse to the Consenting Stakeholders seeking termination pursuant to this provision, and (iii) in each case of (i) and (ii) of this subsection (f), remains uncured for three (3) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 14.10 of this Agreement detailing any such Event;
(g) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Recapitalization Transactions and (ii) remains in effect for fifteen twenty (1520) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this Days. This termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone the Company Parties to occur as confirm by not later than three (3) Business Days prior to the Effective Date that the Series A MT Preferred Equity has been declared to be a security eligible for distribution by DTC and when specified in was agreed to be accepted by DTC for the Restructuring Term SheetDTC’s book-entry, delivery, settlement and depository services;
(i) a termination of the Company Parties’ right to consensually use cash collateral following upon the occurrence of a Termination Material Adverse Effect;
(j) only as to the Consenting Unsecured Noteholders and/or the Consenting Term Loan Lenders, if a Default or Event of Default (as defined in the Term Loan Credit Agreement or any of the Indentures) under the Term Loan Credit Agreement or any Indenture (interim and other than as expressly set forth in the Waiver, Rescission and Amendment under the Term Loan Credit Agreement, attached to this Agreement as Exhibit D) has occurred and is continuing;
(k) any of (i) the Company Parties, (ii) the Required Consenting Unsecured Noteholders, (iii) the Required Consenting Term Loan Lenders, or final(iv) the Sponsors, as applicablerespectively, validly terminates this Agreement in accordance with its terms;
(l) Financing Orderthe Exchange Offer has not launched by April 22, 2019; or
(jm) solely with respect to the Required Consenting Senior CreditorsEffective Date has not occurred by June 10, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period2019.
Appears in 1 contract
Samples: Transaction Support Agreement (Neiman Marcus Group LTD LLC)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) upon written notice delivered in accordance with Section 16.09 hereof with respect to the Consenting Senior Creditors Stakeholders by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof Stakeholders upon the occurrence and continuation of any of the following events:.
(a) the The breach in any material respect by a Company Party Aegean of any of the representations, warranties, or covenants of the Company Parties such breaching Party as set forth in this Agreement that has a material adverse effect on consummating the Restructuring; provided, that the Required Consenting Stakeholders shall transmit a notice to counsel to Aegean in accordance with the notice provisions hereof, detailing any such breach and, if such breach is capable of being cured, the breaching Party shall have five (5) business days after receiving such notice to cure any breach.
(b) The issuance by any governmental authority, including any regulatory authority, the Bankruptcy Court, or another court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling, or order that, in each case, has a material adverse effect on consummating the Restructuring; provided, that Aegean shall have ten (10) business days after issuance of such injunction, judgment, decree, charge, ruling, or order to obtain relief that would allow consummation of the Restructuring.
(c) Aegean loses the exclusive right to file a plan of reorganization.
(d) The Bankruptcy Court enters an order denying confirmation of the Plan and such order remains in effect for five (5) business days after entry of such order.
(e) Aegean (i) files, amends, or modifies, or files a pleading seeking approval of, any Restructuring Document or authority to amend or modify any Restructuring Document, in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement and is adverse to the Consenting Stakeholders Stakeholder seeking termination pursuant to this provision and (including with respect to the consent rights afforded the Consenting Stakeholders under this Agreement), without the prior written consent of the Required Consenting Stakeholders (ii) withdraws the Plan without the prior written consent of the Required Consenting Stakeholders, or (iii) publicly announces its intention to take any such acts listed in the foregoing clause (i) or (ii), in the case of each of the foregoing clauses (i) through (iii), which remains uncured (to the extent curable) for ten five (105) Business Days business days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 16.09 detailing any such breach;.
(bf) the Company Parties Aegean (i) withdraw the Plan makes a public announcement that it intends to accept an alternative restructuring proposal or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that enters into a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action definitive agreement with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;an alternative restructuring proposal.
(dg) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that The (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party conversion to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more dismissal of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) , unless such conversion or dismissal, as applicable, is made with the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification consent of the Junior Debt Claims under Required Consenting Stakeholders; or (ii) appointment of a trustee, receiver, examiner with expanded power, above and beyond that provided for by statute, in the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;Chapter 11 Cases.
(h) Except to the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to extent the Required Consenting Senior CreditorsStakeholders have waived such Milestone in accordance herewith, if the failure to meet any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodMilestones.
Appears in 1 contract
Samples: Restructuring Support Agreement (Aegean Marine Petroleum Network Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Revolving Lenders, by the Required Consenting Senior Creditors, Revolving Lenders; (b) with respect to the Consenting 2021 Noteholders Term Loan Lenders, by the Required Consenting 2021 Noteholders, and Term Loan Lenders; (c) with respect to the Consenting Sponsors Ad Hoc Term Loan Lender Group, by the Required Ad Hoc Term Loan Lender Group; and (d) with respect to the Consenting SponsorsSenior Noteholders, if any, by the Required Consenting Senior Noteholders, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof 13.10 of this Agreement upon the occurrence and continuation of any of the following events; provided that, notwithstanding any termination of this Agreement by or with respect to the Consenting Senior Noteholders, if any, this Agreement shall remain in full force and effect and binding upon the Company Parties and the other Consenting Stakeholders:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for five (to the extent curable) for ten (105) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 13.10 of this Agreement detailing any such breach;
(b) any representation or warranty made by a Company Party in this Agreement proves to have been incorrect in any material respect on the Company Parties Agreement Effective Date (i) withdraw or such other applicable date with respect to a representation expressly made as to a period of time other than the Plan Agreement Effective Date), or, to the extent such representation or (ii) publicly announce their intention not warranty is already qualified by materiality, such representation or warranty proves to support the Restructuring Transactionshave been incorrect in any respect as of such date;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen thirty (1530) Business Days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice in accordance with Section 17.11 hereof 13.10 of this Agreement detailing any such issuance; provided, provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ed) the Bankruptcy Court enters an order denying confirmation of the Plan, or the Plan Effective Date does not occur on or prior to July 29, 2019;
(fe) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating dismissing the (interim Chapter 11 Cases, or final, as applicable) Financing Order, (iv) rejecting this Agreement; ;
(f) the Bankruptcy Court enters a Final Order modifying or (v) dismissing one or more terminating the Company Parties’ exclusive right to file and/or solicit acceptances of the Chapter 11 Casesa plan of reorganization;
(g) except as necessary to implement the DIP Facility, or with the prior consent of the counsel to the Required Consenting Revolving Lenders (email shall suffice), and in consultation with the Required Ad Hoc Term Loan Lender Group and the Required Consenting Term Loan Lenders, the Bankruptcy Court enters an order or in an oral decision delivered from the bench findinggrants a Final Order terminating, determiningannulling, or concluding that modifying the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any assets of the Company Parties having an aggregate fair market value in excess of $1,000,000.00;
(h) the failure Bankruptcy Court enters a Final Order pursuant to a motion filed or supported by the Company Parties or at the direct or indirect direction of the Company Parties authorizing or directing the assumption or rejection of any Milestone Material Executory Contract or Unexpired Lease other than in accordance with this Agreement, the Plan or as otherwise approved in writing by counsel to occur as the Required Consenting Revolving Lenders (email shall suffice), in consultation with the Required Ad Hoc Term Loan Lender Group and when specified in the Restructuring Required Consenting Term SheetLoan Lenders;
(i) the commencement of an avoidance action or other legal proceeding by the Company Parties to challenge the validity, enforceability, or priority of the Credit Agreement or the obligations thereunder;
(j) the Plan is withdrawn, amended, or otherwise modified so as to be materially inconsistent with this Agreement, the Term Sheets, or the Plan;
(k) (i) the occurrence of the DIP Maturity Date, (ii) the termination or modification of the Interim DIP Order or the Final DIP Order in a manner that is inconsistent with the DIP Credit Agreement; (iii) the termination of any order or agreement permitting the use of cash collateral in the Chapter 11 Cases; or (iv) the occurrence of an Event of Default under the DIP Credit Agreement that shall not have been cured within any applicable grace periods or waived pursuant to the terms of the DIP Credit Agreement, and subject to the rights set forth in the Interim DIP Order and the Final DIP Order of certain parties to contest whether a Termination Event (as defined in the Interim DIP Order and the Final DIP Order, as applicable) has occurred;
(l) the failure by the Company Parties to satisfy or comply with any of its obligations under Section 13.20 of this Agreement, subject to any orders of the Bankruptcy Court regarding the fees and expenses contemplated to be paid by such Section 13.20 of this Agreement;
(m) other than with respect to the Amended Management Employment Agreements, the Company Parties retain any new executive officer or employee or modifies the terms of any Existing Employment Agreement with its executive officers or employees on terms not acceptable to the Required Consenting Revolving Lenders in their sole and absolute discretion;
(n) the Company Parties shall not have complied with any of the PSA Milestones(unless such PSA Milestone is waived or amended in accordance with Section 12 of this Agreement);
(o) an examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code or a trustee shall have been appointed in one or more of the chapter 11 cases with respect to any of the Company Parties; provided that the termination right in this clause (o) shall not be available to any Consenting Stakeholder that directly or indirectly supported, or encouraged any other Entity to directly or indirectly support, any request for the appointment of such an examiner or a trustee;
(p) the Company Parties shall have terminated, amended, amended and restated, modified, or supplemented (i) any of the Material Agreements or Material Executory Contracts or Unexpired Leases in a manner that is not reasonably acceptable to the Required Consenting Revolving Lenders in their sole and absolute discretion or (ii) any other agreement contemplated to impose obligations on the Company Parties and/or the Reorganized Debtors equal to or above the Material Agreement Threshold on less than five (5) Business Days’ right notice to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing OrderConsenting Revolving Lenders; or
(jq) solely the Restructuring Transactions are not consummated in accordance with respect to the Required Consenting Senior Creditorsterms of this Agreement, if any Company Party does not immediately seek an extension of any deadlinethe Term Sheets, order, or proceeding in and the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodPlan.
Appears in 1 contract
Samples: Plan Support Agreement (Vanguard Natural Resources, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Revolving Lenders, by the Required Consenting Senior Creditors, Revolving Lenders; (b) with respect to the Consenting 2021 Noteholders Term Loan Lenders, by the Required Consenting 2021 Noteholders, and Term Loan Lenders; (c) with respect to the Consenting Sponsors Ad Hoc Term Loan Lender Group, by the Required Ad Hoc Term Loan Lender Group; and (d) with respect to the Consenting SponsorsSenior Noteholders, if any, by the Required Consenting Senior Noteholders, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 hereof 13.10 of this Agreement upon the occurrence and continuation of any of the following events; provided that, notwithstanding any termination of this Agreement by or with respect to the Consenting Senior Noteholders, if any, this Agreement shall remain in full force and effect and binding upon the Company Parties and the other Consenting Stakeholders:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for five (to the extent curable) for ten (105) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 13.10 of this Agreement detailing any such breach;
(b) any representation or warranty made by a Company Party in this Agreement proves to have been incorrect in any material respect on the Company Parties Agreement Effective Date (i) withdraw or such other applicable date with respect to a representation expressly made as to a period of time other than the Plan Agreement Effective Date), or, to the extent such representation or (ii) publicly announce their intention not warranty is already qualified by materiality, such representation or warranty proves to support the Restructuring Transactionshave been incorrect in any respect as of such date;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen thirty (1530) Business Days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice in accordance with Section 17.11 hereof 13.10 of this Agreement detailing any such issuance; provided, provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ed) the Bankruptcy Court enters an order denying confirmation of the PlanPlan or approval of the Settlement, or the Plan Effective Date does not occur on or prior to July 29, 2019;
(fe) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating dismissing the (interim Chapter 11 Cases, or final, as applicable) Financing Order, (iv) rejecting this Agreement; ;
(f) the Bankruptcy Court enters a Final Order modifying or (v) dismissing one or more terminating the Company Parties’ exclusive right to file and/or solicit acceptances of the Chapter 11 Casesa plan of reorganization;
(g) except as necessary to implement the DIP Facility, or with the prior consent of the counsel to the Required Consenting Revolving Lenders (email shall suffice), and in consultation with the Required Ad Hoc Term Loan Lender Group, and the Required Consenting Term Loan Lenders, the Bankruptcy Court enters an order or in an oral decision delivered from the bench findinggrants a Final Order terminating, determiningannulling, or concluding that modifying the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any assets of the Company Parties having an aggregate fair market value in excess of $1,000,000.00;
(h) the failure Bankruptcy Court enters a Final Order pursuant to a motion filed or supported by the Company Parties or at the direct or indirect direction of the Company Parties authorizing or directing the assumption or rejection of any Milestone Material Executory Contract or Unexpired Lease other than in accordance with this Agreement, the Plan or as otherwise approved in writing by counsel to occur as the Required Consenting Revolving Lenders (email shall suffice), in consultation with the Required Ad Hoc Term Loan Lender Group, the Required Consenting Term Loan Lenders, and when specified in the Restructuring Term SheetAd Hoc Senior Noteholder Group;
(i) the commencement of an avoidance action or other legal proceeding by the Company Parties to challenge the validity, enforceability, or priority of the Credit Agreement or the obligations thereunder;
(j) the Plan is withdrawn, amended, or otherwise modified so as to be materially inconsistent with this Agreement, the Term Sheets, or the Plan;
(k) (i) the occurrence of the DIP Maturity Date, (ii) the termination or modification of the Interim DIP Order or the Final DIP Order in a manner that is inconsistent with the DIP Credit Agreement; (iii) the termination of any order or agreement permitting the use of cash collateral in the Chapter 11 Cases; or (iv) the occurrence of an Event of Default under the DIP Credit Agreement that shall not have been cured within any applicable grace periods or waived pursuant to the terms of the DIP Credit Agreement, and subject to the rights set forth in the Interim DIP Order and the Final DIP Order of certain parties to contest whether a Termination Event (as defined in the Interim DIP Order and the Final DIP Order, as applicable) has occurred;
(l) the failure by the Company Parties to satisfy or comply with any of its obligations under Section 13.20 of this Agreement, subject to any orders of the Bankruptcy Court regarding the fees and expenses contemplated to be paid by such Section 13.20 of this Agreement;
(m) other than with respect to the Amended Management Employment Agreements, the Company Parties retain any new executive officer or employee or modifies the terms of any Existing Employment Agreement with its executive officers or employees on terms not acceptable to the Required Consenting Revolving Lenders in their sole and absolute discretion;
(n) the Company Parties shall not have complied with any of the PSA Milestones (unless such PSA Milestone is waived or amended in accordance with Section 12 of this Agreement);
(o) an examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code or a trustee shall have been appointed in one or more of the chapter 11 cases with respect to any of the Company Parties; provided that the termination right in this clause (o) shall not be available to any Consenting Stakeholder that directly or indirectly supported, or encouraged any other Entity to directly or indirectly support, any request for the appointment of such an examiner or a trustee;
(p) the Company Parties shall have terminated, amended, amended and restated, modified, or supplemented (i) any of the Material Agreements or Material Executory Contracts or Unexpired Leases in a manner that is not reasonably acceptable to the Required Consenting Revolving Lenders in their sole and absolute discretion or (ii) any other agreement contemplated to impose obligations on the Company Parties and/or the Reorganized Debtors equal to or above the Material Agreement Threshold on less than five (5) Business Days’ right notice to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing OrderConsenting Revolving Lenders; or
(jq) solely the Restructuring Transactions are not consummated in accordance with respect to the Required Consenting Senior Creditorsterms of this Agreement, if any Company Party does not immediately seek an extension of any deadlinethe Term Sheets, order, or proceeding in and the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodPlan.
Appears in 1 contract
Samples: Plan Support Agreement (Vanguard Natural Resources, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders Noteholder Group Creditors by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 16.11 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 16.11 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 16.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ed) the Bankruptcy Court enters an order denying confirmation of the Plan;
(fe) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;; or
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(if) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 1 contract
Samples: Restructuring Support Agreement (iHeartMedia, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior CreditorsNoteholders, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 NoteholdersDIP FILO Lenders, and (c) with respect to or the Consenting Sponsors by the Consenting Sponsors, in each case, by the delivery to the Company Parties of a Required DIP 2L Lenders upon written notice delivered in accordance with Section 17.11 16.09 hereof upon the occurrence and continuation of any of the following events:.
(a) the The breach in any material respect by a Company Party Aegean of any of the representations, warranties, or covenants of the Company Parties such breaching Party as set forth in this Agreement that has a material adverse effect on consummating the Restructuring; provided, that the Required Consenting Stakeholders shall transmit a notice to counsel to Aegean in accordance with the notice provisions hereof, detailing any such breach and, if such breach is capable of being cured, the breaching Party shall have five (5) business days after receiving such notice to cure any breach.
(b) The issuance by any governmental authority, including any regulatory authority, the Bankruptcy Court, or another court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling, or order that, in each case, has a material adverse effect on consummating the Restructuring; provided, that Aegean shall have ten (10) business days after issuance of such injunction, judgment, decree, charge, ruling, or order to obtain relief that would allow consummation of the Restructuring.
(c) Aegean loses the exclusive right to file a plan of reorganization.
(d) The Bankruptcy Court enters an order denying confirmation of the Plan and such order remains in effect for five (5) business days after entry of such order.
(e) Aegean (i) files, amends, or modifies, or files a pleading seeking approval of, any Restructuring Document or authority to amend or modify any Restructuring Document, in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement and is adverse to the Consenting Stakeholders Stakeholder seeking termination pursuant to this provision and (including with respect to the consent rights afforded the Consenting Stakeholders under this Agreement), without the prior written consent of the Required Consenting Stakeholders (ii) withdraws the Plan without the prior written consent of the Required Consenting Stakeholders, or (iii) publicly announces its intention to take any such acts listed in the foregoing clause (i) or (ii), in the case of each of the foregoing clauses (i) through (iii), which remains uncured (to the extent curable) for ten five (105) Business Days business days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof 16.09 detailing any such breach;.
(bf) the Company Parties Aegean (i) withdraw the Plan makes a public announcement that it intends to accept an alternative restructuring proposal or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that enters into a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action definitive agreement with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;an alternative restructuring proposal.
(dg) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that The (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party conversion to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more dismissal of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) , unless such conversion or dismissal, as applicable, is made with the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification consent of the Junior Debt Claims under Required Consenting Stakeholders; or (ii) appointment of a trustee, receiver, examiner with expanded power, above and beyond that provided for by statute, in the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;Chapter 11 Cases.
(h) Except to the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to extent the Required Consenting Senior CreditorsStakeholders have waived such Milestone in accordance herewith, if the failure to meet any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective PeriodMilestones.
Appears in 1 contract
Samples: Restructuring Support Agreement (Aegean Marine Petroleum Network Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated by (ax) with respect to the Consenting Senior Creditors First Lien Noteholders, by the Required Consenting Senior Creditors, First Lien Noteholders and (by) with respect to the Consenting 2021 Noteholders Unsecured Noteholders, by the Required Consenting 2021 NoteholdersUnsecured Noteholders (such Consenting Stakeholders seeking to terminate, and (c) with respect to the “Terminating Consenting Sponsors by the Consenting SponsorsStakeholders”), in each case, case by the delivery to the Company Parties of a written notice in accordance with Section 17.11 14.13 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Terminating Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten (10) Business Days after such terminating the Terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 14.13 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support without the Restructuring Transactionsconsent of the Required Consenting Noteholders;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) either (1) such ruling, judgment, or order has been at the request of the Company Parties in contravention of any obligations set forth in this Agreement or (2) remains in effect for fifteen (15) Business Days after such terminating the Terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 14.13 hereof detailing any such issuance; providednotwithstanding the foregoing, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ed) any Company Party (i) files with the Bankruptcy Court enters an order denying confirmation any Definitive Document, or amends or modifies, or files a pleading with the Bankruptcy Court seeking authority to amend or modify, any of the PlanDefinitive Documents, in a manner that is inconsistent with this Agreement or which is otherwise in form or substance not reasonably satisfactory to the Required Consenting First Lien Noteholders, or (ii) publicly announces its intention to take any such acts;
(fe) the entry of an order by any Company Party files, or publicly announces that it will file, with the Bankruptcy CourtCourt any plan of reorganization other than the Plan, or files with the filing of a Bankruptcy Court any motion or application by seeking authority to sell any Company Party seeking an order (material assets, without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 CasesNoteholders;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 1 contract
Samples: Restructuring Support Agreement (Jones Energy, Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors Stakeholders, by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each caseStakeholders, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 14.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach (other than an immaterial breach) in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties (i) set forth in this Agreement that and (iii) is adverse to made to, owed to, or for the benefit of the Consenting Stakeholders seeking termination pursuant to this provision and provision, so long as such breach either (iix) is due to the Company Parties’ failure to comply with Section 6.01(g) after becoming aware of the occurrence of the event or circumstance described in Section 11.01(j) or (y) remains uncured (to the extent curable) for ten (10) Business Days after such applicable terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 14.10 hereof detailing any such breach;
(b) the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any finalruling, non-appealable ruling judgment or order that (i) enjoins the consummation of of, or renders illegal, a material portion of the Restructuring Transactions and (ii) either (A) has been issued at the request of or with the acquiescence of any Company Party or (B) remains in effect for fifteen thirty (1530) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 hereof detailing any such issuancedays; provided, that this termination right may shall not apply to or be exercised by any Party Consenting Stakeholder that (i) failed to provide information required to process regulatory applications or (ii) sought or requested such ruling or order in contravention of any obligation or restriction set out in this Agreement;
(ec) three (3) Business Days after the Bankruptcy Court enters an order denying confirmation of the Plan (or reverses or vacates an order confirming the Plan); provided, the Required Consenting Stakeholders and the Company Parties shall use commercially reasonable efforts to agree to an approach to cure any infirmities causing the denial and, if the Required Consenting Stakeholders and the Company Parties have agreed to such approach (evidenced in writing, which may be by email) within three (3) Business Days, then no parties may terminate this Agreement pursuant to this Section 11.01(c);
(fd) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order order, (without the prior written consent i) dismissing any of the Required Consenting Creditors and the Consenting Sponsors) Chapter 11 Cases, (iii) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (iiiii) appointing a trustee or an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) pursuant to section 1104 of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing OrderCode, (iv) rejecting this Agreement; terminating or shortening exclusivity under section 1121 of the Bankruptcy Code, (v) dismissing one rejecting this Agreement or more (vi) the effect of which would render the Restructuring Transactions incapable of consummation on the terms set forth in this Agreement;
(e) any of the Chapter 11 CasesCompany Parties (i) publicly announces their intention not to support the Restructuring Transactions, (ii) files, publicly announces, or executes a definitive written agreement with respect to an Alternative Restructuring Proposal, or (iii) otherwise provides written notice to the Consenting Stakeholders of a determination not to proceed with the Restructuring Transactions, or to pursue an Alternative Restructuring Proposal, in accordance with Section 7.01;
(f) any of the following events (the “Milestones”) have not been achieved, extended, or waived by no later than 11:59 p.m. prevailing Eastern Time on the dates set forth below:
(i) the Debtors cause solicitation of votes on the Plan to begin no later than March 25, 2024;
(ii) the Petition Date occurs no later than March 25, 2024;
(iii) the Plan and Disclosure Statement are filed on or prior to the date that is one (1) Business Day after the Petition Date;
(iv) the Bankruptcy Court has entered (A) the interim DIP Order and (B) an interim order approving the Securitization Facilities, in each case, on or prior to the date that is three (3) Business Days after the Petition Date;
(v) the Bankruptcy Court has entered the final DIP Order on or prior to the date that is forty-five (45) calendar days after the Petition Date;
(vi) the Bankruptcy Court has entered a final order approving the Securitization Facilities on or prior to the date that is forty-five (45) calendar days after the Petition Date;
(vii) the Bankruptcy Court has entered an order confirming the Plan and approving the Disclosure Statement on or prior to the date that is fifty (50) calendar days after the Petition Date; and
(viii) the Effective Date occurs on or prior to the date that is one hundred twenty (120) calendar days after the Petition Date;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved is entered by the Bankruptcy Court for granting relief from the automatic stay to the holder or holders of any reason security interest to permit foreclosure (or does not comply the granting of a deed in lieu of foreclosure on the same) on any assets of any Company Party (other than with respect to assets having an immaterial value to the requirements of the Bankruptcy CodeCompany Parties);
(h) the failure any court of any Milestone competent jurisdiction has entered a judgment or order declaring this Agreement to occur as and when specified in the Restructuring Term Sheetbe unenforceable;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of an Event of Default under the DIP Credit Agreement that has not been cured or waived in accordance with the DIP Credit Agreement;
(j) the occurrence of an “Event of Default” or other similar event or circumstance under any Securitization Facility (after giving effect to any amendment, waiver or forbearance, including those entered into as part of the Restructuring Transactions), in each case, after giving effect to any grace period therein, the effect of which “Event of Default” is to cause, or to permit the holder or holders of such Securitization Facility Indebtedness to cause, with or without the giving of notice or lapse of time, such Securitization Facility Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed, or an offer to repurchase, prepay, defease or redeem such Securitization Facility Indebtedness to be made, prior to its stated maturity; provided that this Section 11.01(j) shall not apply to any secured Securitization Facility Indebtedness that becomes due as a Termination Event as defined in result of the (interim voluntary sale or finaltransfer of the property or assets securing such Securitization Facility Indebtedness, as applicable) Financing Orderif such sale or transfer is not prohibited hereunder and permitted under the documents providing for such Securitization Facility Indebtedness and such Securitization Facility Indebtedness is repaid when required under the documents providing for such Securitization Facility Indebtedness; or
(jk) any Definitive Document filed by any Company Party, or any related order entered by the Bankruptcy Court in the Chapter 11 Cases, is inconsistent with this Agreement, including the Consenting Stakeholders’ consent rights under this Agreement (in each case implicating a Definitive Document, solely with respect to the Required extent that the terminating Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, orderStakeholders have consent rights over such Definitive Document), or proceeding is otherwise not in the Texas Litigation that would require accordance with this Agreement in any party to take any action in the Texas Litigation during the Agreement Effective Periodmaterial respect.
Appears in 1 contract
Samples: Restructuring Support Agreement (CURO Group Holdings Corp.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors First Lien Noteholders, by the Required Consenting Senior CreditorsFirst Lien Noteholders, (b) with respect to the Consenting 2021 Noteholders Second Lien Term Lenders, by the Required Consenting 2021 NoteholdersSecond Lien Term Lenders, and (c) with respect to the any Consenting Sponsors Stakeholder, by the such Consenting SponsorsStakeholder, in each case, by the delivery to the Company Parties of a written notice in accordance with Section 17.11 16.10 hereof upon the occurrence and continuation of any of the following events:
(a) the occurrence of a breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for fifteen (to the extent curable) for ten (1015) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 16.10 hereof detailing any such breach;
(b) the Company Parties occurrence of an Event of Default under and as defined in the Cash Collateral Order(s) for which the Consenting Stakeholders have not provided a forbearance or that has not been cured (iif susceptible to cure) withdraw or waived in accordance with the Plan terms thereof; provided, that the right to terminate this Agreement under this Section 13.01(b) shall not be available to any Consenting Stakeholder if the occurrence of such Event of Default is caused by, or (ii) publicly announce their intention not to support results from, the Restructuring Transactionsmaterial breach by such Consenting Stakeholder of its covenants, agreements, or other obligations under the Cash Collateral Order(s);
(c) any Company Party determinesof the Milestones (as may have been extended in accordance with the terms hereof) is not achieved, pursuant to Section 7.01except where such Milestone has been waived or extended in accordance with the terms hereof; provided, that a Company Party or the board right to terminate this Agreement under this Section 13.01(c) shall not be available to any Consenting Stakeholder if the failure of directors, board of managers, memberssuch Milestone to be achieved is caused by, or any similar governing body results from, the material breach by such Consenting Stakeholder of a Company Party taking any action its covenants, agreements, or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary other obligations under applicable Lawthis Agreement;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen thirty (1530) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 16.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the commencement of an involuntary bankruptcy case against any Company Party under the Bankruptcy Code, if such involuntary case is not dismissed within forty-five (45) calendar days after the filing thereof, or if a court order grants the relief sought in such involuntary case;
(f) the Company Parties’ exclusive right to file a plan or plans of reorganization or to solicit acceptances thereof pursuant to section 1121 of the Bankruptcy Code, including all extensions thereof, expires or is terminated by order of the Bankruptcy Court or otherwise;
(g) this Agreement or any Definitive Document is amended, waived, or modified in any manner not consistent in any material respect with the terms of this Agreement;
(h) any court of competent jurisdiction has entered a final, non-appealable judgment or order declaring this Agreement to be unenforceable;
(i) the rejection of this Agreement, or the filing of a motion by a Company Party seeking such relief;
(j) any Definitive Document or any document or agreement necessary to consummate the Restructuring Transactions is not satisfactory to the Required Consenting Stakeholders (and the Company Parties do not revise such Definitive Document, document or agreement as reasonably requested by the Required Consenting Stakeholders) or the Company withdraws the Plan without the consent of the Required Consenting Stakeholders;
(k) any Company Party files, amends, or modifies a pleading seeking approval of, any Definitive Document or authority to amend or modify any Definitive Document, in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement without the prior written consent of the Required Consenting Stakeholders and such motion or pleading has not been withdrawn within five (5) Business Days of such filing;
(l) any Company Party (i) makes a public announcement that it is proceeding with an Alternative Restructuring Proposal, (ii) files a motion with the Bankruptcy Court seeking the approval of an Alternative Restructuring Proposal or supports (or fails to timely object to) another party in filing or seeking approval of an Alternative Restructuring Proposal, (iii) agrees to pursue (including, for the avoidance of doubt, as may be evidenced by an executed term sheet, an executed letter of intent or similar binding documentation) an Alternative Restructuring Proposal without the consent of the Required Consenting Stakeholders, or (iv) notifies the Consenting Stakeholders pursuant to Section 8 hereof of its determination to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with this Agreement;
(m) any Company Party files a motion, application, or adversary proceeding (or a Company Party supports any such motion, application, or adversary proceeding filed or commenced by any third party other than the Consenting Stakeholders) challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the First Lien Senior Secured Notes or Second Lien Term Loan or asserting any other cause of action against the Consenting Stakeholders, as applicable, or with respect to or relating to such First Lien Senior Secured Notes or Second Lien Term Loan, or the prepetition liens securing any of the First Lien Senior Secured Notes or the Second Lien Term Loan, other than an order approving the transactions as contemplated by this Agreement or the Plan, as applicable;
(n) the Bankruptcy Court enters any order authorizing the use of cash collateral or postpetition financing that is not in a form and substance acceptable to the Required Consenting Stakeholders;
(o) (A) any of the Confirmation Order, order(s) approving the Disclosure Statement or Solicitation Materials, or any other material order entered by the Bankruptcy Court is reversed, stayed, dismissed, vacated, reconsidered, modified or amended without the consent of the Required Consenting Stakeholders, or (B) a motion for reconsideration, reargument, or rehearing with respect to any such order has been filed and the Company Parties have failed to timely object to such motion;
(p) the Bankruptcy Court enters an order denying confirmation of the PlanPlan and such order remains in effect for fourteen (14) days after entry of such order;
(fq) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;or
(gr) the Bankruptcy Court enters an order or in an oral decision delivered granting relief from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved automatic stay imposed by the Bankruptcy Court for any reason or does not comply with the requirements section 362 of the Bankruptcy Code;
(h) the failure Code authorizing any party to proceed against any material asset of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of or that would materially and adversely affect any deadline, order, or proceeding Company Party’s ability to operate their businesses in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodordinary course.
Appears in 1 contract
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to by the DIP Secured Parties or the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect Foris Prepetition Secured Lenders as to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, all Parties by the delivery to the Company all Parties of a written notice in accordance with Section 17.11 14.12 hereof upon the occurrence and continuation of any one of the following events:
(a) the breach in any material respect by a Company Party or any Other Consenting Stakeholder of any of the representations, warranties, or covenants of the Company Parties or the Other Consenting Stakeholders set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured (to the extent curable) for ten seven (107) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 14.12 hereof detailing any such breach;
(b) any of the Company Milestones set forth in Section 4 (as may have been extended with the approval of the DIP Secured Parties (iand Consenting Foris Prepetition Secured Lenders) withdraw is not achieved, except where such Milestone has been waived or extended by the Plan or (ii) publicly announce their intention not to support the Restructuring Transactionsapplicable Consenting Stakeholders;
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body delivery of a notice by the Company Party taking any action or refraining from taking any action Parties in accordance with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable LawSection 8.01;
(d) this Agreement or any Definitive Document is amended, waived or modified in any manner not consistent in any material respect with the terms of this Agreement;
(e) the issuance by any governmental authorityGovernmental Authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins would reasonably be expected to prevent the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 14.12 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) the Bankruptcy Court enters an order denying confirmation of the Plan;
(f) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party or any Other Consenting Stakeholder seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (iiiii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party, (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) any Company Party or Other Consenting Stakeholder (i) files, amends or modifies, or files a pleading seeking approval of any Definitive Document or authority to amend or modify any Definitive Document in a manner that is inconsistent with or not permitted by this Agreement (including with respect to the consent rights afforded the Consenting Stakeholders under this Agreement) without the prior written consent of the Consenting Stakeholders, (ii) revokes the Restructuring Transactions without the prior consent of the Consenting Stakeholders, including the withdrawal of the Plan or support therefor, or (iii) publicly announces its intention to take any such acts listed in the foregoing clauses (i) or (ii) or is otherwise inconsistent in any material respect with the consent rights afforded such Parties under this Agreement;
(h) the Bankruptcy Court grants relief that is (i) inconsistent with this Agreement in any material respect or (ii) would, or would reasonably be expected to, materially frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions, in each case unless the Company Parties have sought a stay of such relief within seven (7) days after the date that the Bankruptcy Court grants such relief and such order is stayed, reversed, or vacated within fourteen (14) days after the date that the Bankruptcy Court grants such relief;
(i) any Company Party files any motion or application seeking authority to sell any material assets without the prior written consent of the Consenting Stakeholders;
(j) if the Bankruptcy Court enters an order in the Chapter 11 Cases terminating any Company Party’s exclusive right to file a plan or plans of reorganization or to solicit acceptances thereof pursuant to section 1121 of the Bankruptcy Code;
(k) the Bankruptcy Court enters any order authorizing the use of cash collateral or post-petition financing that is not in the form of the DIP Orders or otherwise consented to by the Consenting Stakeholders;
(l) the occurrence of any “Event of Default” under (and as defined in) the DIP Orders or DIP Credit Agreement that has not been cured (if susceptible to cure) or waived by the DIP Agent;
(m) if (i) any of the DIP Orders are reversed, stayed, dismissed, vacated, reconsidered, modified or amended without the consent of the DIP Secured Parties, or (ii) a motion for reconsideration, reargument or rehearing with respect to any such order has been filed and the Company Parties have failed to timely object to such motion;
(n) if, prior to the scheduled hearing date to consider approval of the Plan, the Debtors have not negotiated modifications to the Lease dated as of March 10, 2008 by and between ES East Associates, LLC and Amyris, Inc (as from time to time amended, modified, supplemented, restated or amended and restated) for the real property located at 0000 Xxxxxx Xxxxxx, Emeryville, California that are acceptable to the DIP Secured Parties or the Consenting Foris Prepetition Secured Lenders;
(o) the delivery of a notice by the Company Parties, in accordance with Section 14.12, indicating that a Company Party has determined it will not take any action or will refrain from taking any action with respect to the Restructuring Transactions that constitutes a Permitted Fiduciary-Out Action that is Materially Inconsistent with the Plan;
(p) seven (7) Business Days after the occurrence of any court of competent jurisdiction or other competent governmental or regulatory authority issuing a ruling or an order and such ruling or order becoming final and non-appealable, making illegal or otherwise restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement in a way that cannot be reasonably remedied by the Company Parties;
(q) the entry of an order by any court of competent jurisdiction invalidating, disallowing, subordinating, or limiting, in any respect, as applicable, the enforceability, priority, or validity of the Foris Prepetition Claims, other than an order approving the transactions as contemplated by this Agreement or the Plan, as applicable, or the filing of any motion or complaint that, if approved, would result in any of the foregoing;
(r) if, prior to the scheduled hearing date to consider approval of the Plan, the allowed amount, and treatment, of the Lavvan Secured Claim under the Plan is in such form and in such amount that is not acceptable to the Consenting Stakeholders in their sole and absolute discretion;
(s) the failure to satisfy the conditions precedent to confirmation of the Plan as set forth in the Plan, unless waived pursuant to the terms of the Plan;
(t) the failure to satisfy the conditions to the Plan Effective Date as set forth in the Plan, unless waived pursuant to the terms of the Plan; or
(u) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification denying confirmation of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court and such order remains in effect for any reason or does not comply with the requirements seven (7) Business Days after entry of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, such order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 1 contract
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors First Lien Lenders, by the Required Consenting Senior CreditorsFirst Lien Lenders, (b) with respect to the Consenting 2021 Noteholders Second Lien Lenders, by the Required Consenting 2021 NoteholdersSecond Lien Lenders, and (c) with respect to the Consenting Sponsors DIP Revolving Loan Lenders, by the Required Consenting SponsorsDIP Revolving Loan Lenders, (d) with respect to the Consenting DIP Term Loan Lenders, by the Required Consenting DIP Term Loan Lenders, and (e) with respect to each Specified Equity Holder, as to such Specified Equity Holder solely in its capacity as such and not in any other capacity and, in connection with Sections 11.01(e) and 11.01(p), such Specified Equity Holder may only terminate this Agreement as to itself (and only in its capacity as a Specified Equity Holder) solely to the extent that the document, filing or action, as applicable, does not comply with or is inconsistent with respect to the Specified Equity Holder Consent Right, in each case, by the delivery to the Company Parties and the other Parties of a written notice in accordance with Section 17.11 13.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party or Specified Equity Holder that is, or is an Affiliate of, a Consenting Second Lien Lender of any of the representations, warranties, or covenants of the Company Parties such party set forth in this Agreement that (i) is adverse to the Consenting Stakeholders Stakeholder seeking termination pursuant to this provision and (ii) remains uncured (if susceptible to the extent curablecure) for ten (10) Business Days days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice in accordance with Section 17.11 13.10 hereof detailing describing any such breach;
breach (bfor avoidance of doubt, this clause (a) shall apply to the Company Parties (i) withdraw the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;
(c) failure of any Company Party determinesto comply with its obligations hereunder, pursuant to Section 7.01, that whether or not such failure is the result of any action or inaction of a Company Party or the board of directors, board of managers, members, or any similar a governing body of a Company Party taking any action or refraining from taking any action with respect pursuant to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable LawSection 7 of this Agreement);
(db) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins makes the consummation of a material portion of the Restructuring Transactions and contemplated by the Plan illegal, or (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Stakeholders transmit enjoins or prevents the consummation of a written notice in accordance with Section 17.11 hereof detailing any such issuancematerial portion of the Restructuring Transactions contemplated by the Plan; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ec) the Bankruptcy Court enters an order denying confirmation of the Plan, provided, that the Consenting Creditors shall use commercially reasonable efforts to agree to an approach, if any, to cure any infirmities causing the basis for the denial and, if the Required Consenting Creditors have agreed to such approach (evidenced in writing, which may be by email) within ten (10) Business Days, then no Party may terminate this Agreement pursuant to this Section 11.01(c) with respect to the specific order to which the Required Consenting Creditors have so agreed;
(fd) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Creditors, as applicable, which consent shall not be unreasonably withheld, conditioned, or delayed), (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (iiiii) appointing an appointing, in one or more of the Chapter 11 Cases of a Company Party, a trustee or examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee Code; provided that an examiner appointed solely to review fees and expenses of professionals retained in one or more of the Chapter 11 Cases of shall not constitute a termination event under Section 11 hereof; or (iv) terminating the Company PartyParties’ exclusivity under Bankruptcy Code section 1121; provided, (iii) vacating the (interim in each case, that such order, motion or finalapplication, as applicable, is not withdrawn or reversed (to the extent capable of being withdrawn or reversed) Financing Orderwithin five (5) Business Days of such entry or filing, as applicable;
(ive) rejecting the entry into, modification, amendment or filing of any of the Definitive Documents without the consent of the applicable Consenting Stakeholder in accordance with this Agreement, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, that such modification, amendment or filing, as applicable, is not reversed or withdrawn within five (v5) dismissing one Business Days of such modification, amendment or more filing, as applicable;
(f) entry of an order by the Bankruptcy Court granting relief from the automatic stay imposed by section 362 of the Chapter 11 CasesBankruptcy Code authorizing any party to proceed against any asset of any Company Party that would materially and adversely affect the Company Party’s operational or financial performance;
(g) the Bankruptcy Court enters an order Company Parties (i) withdraw the Plan, (ii) publicly announce their intention not to support the Restructuring Transactions or in an oral decision delivered from the bench finding(iii) file, determiningpublicly announce, or concluding execute a definitive written agreement with respect to an Alternative Restructuring Proposal; provided, that such withdrawal, announcement, filing or execution, as applicable, is not revoked or withdrawn (to the classification extent capable of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason being revoked or does not comply with the requirements withdrawn) within five (5) Business Days of the Bankruptcy Codesuch withdrawal, announcement, filing or execution, as applicable;
(h) the failure of any of the Company Parties to satisfy a Milestone, which Milestone remains unsatisfied for five (5) Business Days; provided, however, that the right to occur as and when specified in terminate this Agreement under this Section 11.01(h) on account of a failure by the Restructuring Term SheetCompany Parties to comply with the Milestones hereof may not be asserted by a Consenting Stakeholder if the Company’s failure to comply with such Milestones is caused solely by, or results solely from, the breach by such Consenting Stakeholder of its covenants, agreements or obligations under this Agreement;
(i) a termination the failure by any of the Company Parties’ right Parties to consensually use cash collateral following pay the fees and expenses set forth in Section 13.24 as and when required, which failure is not remedied within five (5) Business Days; provided, however, that the Plan Effective Date shall not occur until and unless the fees and expenses set forth in Section 13.24 have been paid in full;
(j) upon (i) a filing by any of the Company Parties of any motion, objection, application or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination or characterization of, the First Lien Loan Claims, the Second Lien Loan Claims, the Bridge Claims, DIP Claims, and/or the liens securing any such Claims or asserting any other claim or cause of action against and/or with respect to any such Claims, liens, any Consenting Creditor or the Agent under any of the relevant facilities (or if the Company Parties support any such motion, application or adversary proceeding commenced by any third party) or (ii) the entry of an order by the Bankruptcy Court providing relief adverse to the interests of any Consenting Creditor or the Agent with respect to any of the foregoing claims, causes of action or proceedings, including, without limitation, an order granting standing to any other party to prosecute such claims, causes of action or proceedings;
(k) the occurrence of a Termination any Event as defined of Default under the DIP Revolving Loan Credit Agreement or the DIP Orders that has not been cured (if susceptible to cure) or waived by the applicable percentage of the DIP Revolving Loan Lenders in accordance with the terms of the DIP Revolving Loan Credit Agreement and the DIP Orders; provided, however, that this termination right may not be exercised in the event that the obligations under the DIP Revolving Loans have been repaid in full;
(interim l) the occurrence of any Event of Default under the DIP Term Loan Credit Agreement or finalthe DIP Orders that has not been cured (if susceptible to cure) or waived by the applicable percentage of the DIP Term Loan Lenders in accordance with the terms of the DIP Term Loan Credit Agreement and the DIP Orders;
(m) any Consenting Second Lien Lender fails to comply with any funding obligation under the DIP Term Loan Credit Agreement at a time when no default or Event of Default thereunder has occurred, and such failure has not been cured by one or more other Consenting Second Lien Lenders within three (3) days after the applicable Consenting Stakeholder transmits a written notice in accordance with Section 13.10 hereof describing such breach, provided, that this termination right may be exercised solely by the Required Consenting First Lien Lenders (with respect to the Consenting First Lien Lenders) or the Required Consenting DIP Revolving Loan Lenders (with respect to the Consenting DIP Revolving Loan Lenders), as applicable;
(n) Financing Orderany Consenting DIP Revolving Loan Lender fails to comply with any funding obligation under the DIP Revolving Loan Credit Agreement at a time when no default or Event of Default thereunder has occurred, and such failure has not been cured by one or more other Consenting DIP Revolving Loan Lenders within three (3) days after the applicable Consenting Stakeholder transmits a written notice in accordance with Section 13.10 hereof describing such breach, provided, that this termination right may be exercised solely by the Required Consenting Second Lien Lenders (with respect to the Consenting Second Lien Lenders) or the Required Consenting DIP Term Loan Lenders (with respect to the Consenting DIP Term Loan Lenders), as applicable;
(o) the occurrence of the circumstances described in Section 11.06 entitling the Consenting First Lien Lenders or the Consenting Second Lien Lenders to terminate this Agreement;
(p) the Company Parties file any motion or pleading with the Bankruptcy Court that is inconsistent in any material respect with this Agreement and such motion or pleading has not been withdrawn within five (5) Business Days of receipt by the Company Parties of written notice from the Required Consenting First Lien Lenders, the Required Consenting Second Lien Lenders, the Required Consenting DIP Term Loan Lenders, or the Required Consenting DIP Revolving Loan Lenders, as applicable;
(q) a breach in any material respect of any of the representations, warranties or covenants in this Agreement by either (i) an amount of Consenting First Lien Lenders that would result in non-breaching Consenting First Lien Lenders not constituting a bankruptcy majority for their First Lien Loan Claims (i.e., a breach by holders holding one-third of the aggregate principal amount or one-half in number of First Lien Loan Claims) or (ii) any Consenting DIP Revolving Loan Lender, in each case, that remains uncured (if susceptible to cure) for ten (10) days after the applicable Consenting Stakeholder transmits a written notice in accordance with Section 13.10 hereof describing such breach; provided, that this termination right may be exercised solely by the Required Consenting Second Lien Lenders (with respect to the Consenting Second Lien Lenders) or the Required Consenting DIP Term Loan Lenders (with respect to the Consenting DIP Term Loan Lenders), as applicable; or
(jr) a breach in any material respect of any of the representations, warranties or covenants in this Agreement by either (i) an amount of Consenting Second Lien Lenders that would result in non-breaching Consenting Second Lien Lenders not constituting a bankruptcy majority for their Second Lien Loan Claims (e.g., a breach by holders holding one-third of the aggregate principal amount or one-half in number of Second Lien Loan Claims) or (ii) any Consenting DIP Term Loan Lender, in each case, that remains uncured (if susceptible to cure) for ten (10) days after the applicable Consenting Stakeholder transmits a written notice in accordance with Section 13.10 hereof describing such breach; provided, that this termination right may be exercised solely by the Required Consenting First Lien Lenders (with respect to the Consenting First Lien Lenders) or the Required Consenting Senior CreditorsDIP Revolving Loan Lenders (with respect to the Consenting DIP Revolving Loan Lenders), if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodas applicable.
Appears in 1 contract
Samples: Restructuring Support Agreement (Centric Brands Inc.)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the any Consenting Senior Creditors RBL Lender, by the Required such Consenting Senior CreditorsRBL Lender, (b) with respect to the any Consenting 2021 Noteholders Noteholder, by the Required such Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting SponsorsNoteholder, in each case, case by the delivery to the Company Parties of a written notice in accordance with Section 17.11 15.10 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company Parties set forth in this Agreement that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for five (to the extent curable) for ten (105) Business Days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice in accordance with Section 17.11 15.10 hereof detailing any such breach;
(b) any of the Company Parties Milestones set forth in Section 4.01 (ias may be extended or waived in accordance with this Agreement) withdraw has not been achieved by the Plan or (ii) publicly announce their intention not to support the Restructuring Transactions;date specified for such Milestone;2
(c) any Company Party determines, pursuant to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking any action or refraining from taking any action with respect to the Restructuring Transactions would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(d) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen ten (1510) Business Days after such terminating Consenting Stakeholders transmit Stakeholder transmits a written notice in accordance with Section 17.11 15.10 hereof detailing any such issuance; provided, however, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(d) the board of directors, board of managers, or such similar governing body of any Company Party determines (including any special committee of such governing body, as applicable), after consulting with its advisors (i) that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of its fiduciary duties or applicable Law or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal; 2 For the avoidance of doubt, no Party may terminate this Agreement on account of failure to satisfy a Milestone to the extent that such failure is primarily caused by or primarily resulting from such Party’s own action (or failure to act) in breach of this Agreement; provided that an individual Consenting Stakeholders’ action (or failure to act) shall not be imputed to the Consenting Stakeholders as a group or any other individual Consenting Stakeholder.
(e) the Bankruptcy Court enters an order denying confirmation of the PlanPlan or any material provision thereof, including any provisions in the Plan relating to releases by the Company Parties of the Consenting Stakeholders, or any material provisions relating to third party releases of the Consenting Stakeholders and such order remains in effect for five (5) Business Days following the entry thereof;
(f) the entry of Bankruptcy Court enters an order by the Bankruptcy Courtorder, or the filing of any Company Party files a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) (i) converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a chapter 11 trustee in one or more of the Chapter 11 Cases of a Company Party, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) any order approving the Bankruptcy Court enters an order Plan or in an oral decision delivered from the bench findingDisclosure Statement is reversed, determiningstayed, dismissed, vacated, or concluding that reconsidered without the classification prior written consent of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court Required Consenting Stakeholders or is modified or amended (i) in a manner that is inconsistent with this Agreement and (ii) remains uncured for five (5) Business Days after such terminating Consenting Stakeholder transmits a written notice in accordance with Section 15.10 hereof describing any reason or does not comply with the requirements of the Bankruptcy Codesuch breach;
(h) the failure making public, modification, amendment or filing of any Milestone of the Definitive Documents by any Company Party that contains terms or conditions that have not received the consent of the applicable Consenting Stakeholders as provided for in Section 3 of this Agreement (i) in a manner that is adverse to occur as the Consenting Stakeholders seeking termination pursuant to this provision and when specified (ii) remains uncured for five (5) Business Days after such terminating Consenting Stakeholders transmits a written notice in the Restructuring Term Sheetaccordance with Section 15.10 hereof describing any such breach;
(i) a termination of the Company Parties’ right to consensually use cash collateral following (i) the occurrence of the DIP Maturity Date, (ii) the termination or modification of the Interim DIP Order or the Final DIP Order in a Termination Event as defined manner that is inconsistent with the DIP Credit Agreement; (iii) the termination of any order or agreement permitting the use of cash collateral in the Chapter 11 Cases; or (interim iv) the occurrence of an Event of Default under the DIP Credit Agreement that shall not have been cured within any applicable grace periods or finalwaived pursuant to the terms of the DIP Credit Agreement;
(j) the Company amends the Plan, as applicable) Financing Orderthe Disclosure Statement, the Definitive Documents, or any amendments, modifications, exhibits or supplements thereto in a manner that is not permitted by this Agreement; or
(jk) solely the Company Parties (i) withdraw the Plan, (ii) publicly announce their intention not to support the Restructuring Transactions, or (iii) file, publicly announce, execute a definitive written agreement with respect to an Alternative Restructuring Proposal or determine not to grant releases to any Consenting Stakeholder. If, after termination of this Agreement by any Consenting Stakeholder, holders of less than two-thirds of the aggregate outstanding principal amount of Notes or holders of less than two-thirds of the aggregate outstanding principal amount of RBL Loans are party to this Agreement, the Required Consenting Senior CreditorsStakeholders may, if any Company Party does not immediately seek an extension of any deadlinein their sole discretion, orderterminate this Agreement upon three (3) Business Days’ written notice to all Parties, or proceeding which shall be delivered in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Periodaccordance with Section 15.10.
Appears in 1 contract
Samples: Restructuring Support Agreement (Gulfport Energy Corp)
Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Senior Creditors by the Required Consenting Senior Creditors, (b) with respect to the Consenting 2021 Noteholders by the Required Consenting 2021 Noteholders, and (c) with respect to the Consenting Sponsors by the Consenting Sponsors, in each case, Stakeholders by the delivery to the Company Parties of a written notice in accordance with Section 17.11 15.11 hereof upon the occurrence and continuation of any of the following events:
(a) the breach in any material respect by a Company Party Debtor or Non-Debtor of any of the its obligations, representations, warranties, covenants or covenants of the Company Parties commitments set forth in this Agreement that (i) is adverse either unable to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) be cured or remains uncured for five (to the extent curable) for ten (105) Business Days after such terminating Consenting Stakeholders transmit following the delivery of a written notice in accordance with Section 17.11 15.11 hereof detailing any such breach;
(b) the Company Parties (i) withdraw Company’s acceptance of an Alternative Restructuring Proposal, including but not limited to filing with the Plan Bankruptcy Court, or (ii) publicly announce their intention not to support announcing that it will file with the Bankruptcy Court, any plan of reorganization or liquidation other than the Restructuring Transactions;
(c) the failure to comply with any Company Party determinesof the Milestones set forth on Schedule 2 to this Agreement;
(d) the Company’s exercise of its right under Section 8.01 of this Agreement, pursuant in a manner that is otherwise inconsistent with the terms of this Agreement, to Section 7.01, that a Company Party or the board of directors, board of managers, members, or any similar governing body of a Company Party taking take any action or refraining to refrain from taking any action with respect to the Restructuring Transactions that would be inconsistent with applicable Law or its fiduciary obligations under applicable Law;
(de) the failure to obtain entry of the interim or final DIP Order substantially on the terms set forth in the proposed form of DIP Order attached as Exhibit 1 annexed to the DIP Credit Agreement (attached as Exhibit C hereto), except to the extent such interim or final DIP Order is modified with the consent of the Required Consenting Lenders;
(f) the occurrence of an “Event of Default” (as defined in the DIP Credit Agreement) under the DIP Facility that has not been waived or timely cured in accordance therewith;
(g) the termination of the authority to use cash collateral obtained under the DIP Order;
(h) the Company’s (i) amendment or modification of, or filing of a pleading with the Bankruptcy Court seeking authority to amend or modify, any of the Definitive Documents, in a manner that is inconsistent with this Agreement, or which is otherwise in a form or substance not reasonably satisfactory to the Required Consenting Stakeholders, or (ii) publicly announcing, disclosing, or otherwise publicizing its intention to take any such acts, whether independently or in conjunction with another party;
(i) the reversal, stay, dismissal, vacation, reconsideration, modification or amendment of the order of the Bankruptcy Court approving the Disclosure Statement or the Confirmation Order after it is entered in a manner that is not reasonably acceptable to the Required Consenting Stakeholders;
(j) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins denies approval of any material term or condition of the Restructuring Transactions or enjoins, restricts or renders impossible or impracticable the consummation of a material portion of the Restructuring Transactions Transactions, and (ii) remains in effect for fifteen five (155) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 17.11 15.11 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(ek) the entry of an order by the Bankruptcy Court enters an order denying confirmation of the Plan;; or
(fl) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party Debtor seeking an order (without the prior written consent of the Required Consenting Creditors and the Consenting Sponsors) Stakeholders, not to be unreasonably withheld), (i) converting one or more of the Chapter 11 Cases of a Company Party Debtor to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company PartyDebtor, or (iii) vacating the (interim or final, as applicable) Financing Order, (iv) rejecting this Agreement; or (v) dismissing one or more of the Chapter 11 Cases;
(g) the Bankruptcy Court enters an order or in an oral decision delivered from the bench finding, determining, or concluding that the classification of the Junior Debt Claims under the Plan will not be approved by the Bankruptcy Court for any reason or does not comply with the requirements of the Bankruptcy Code;
(h) the failure of any Milestone to occur as and when specified in the Restructuring Term Sheet;
(i) a termination of the Company Parties’ right to consensually use cash collateral following the occurrence of a Termination Event as defined in the (interim or final, as applicable) Financing Order; or
(j) solely with respect to the Required Consenting Senior Creditors, if any Company Party does not immediately seek an extension of any deadline, order, or proceeding in the Texas Litigation that would require any party to take any action in the Texas Litigation during the Agreement Effective Period.
Appears in 1 contract
Samples: Restructuring Support Agreement (WESTMORELAND COAL Co)
