Covenants of the Debtors. Unless otherwise provided in the Agreed Plan, each of the Debtors covenants to each other Party that it will from the date of this SRC Agreement to and including the Closing Date: (i) operate its businesses in the ordinary course, including, but not limited to, maintaining their accounting policies, using their commercially reasonable efforts to preserve their assets and their business relationships, continuing to operate their billing and collection procedures, and maintaining their business records in accordance with their past practices and in accordance with industry standards; (ii) maintain compliance with all reporting and other obligations to the CVM, subject to applicable grace periods provided for under any Law or granted by the CVM; (iii) use commercially reasonable efforts to file its 2017 Annual Report by no later than April 30, 2018; (iv) following the date on which the Company files the 2017 Annual Report, maintain compliance with all reporting and other obligations to the SEC, subject to applicable grace periods provided for under any Law or granted by the SEC; (v) use their commercially reasonable efforts to take all action necessary to ensure that the holders of Common ADSs and Preferred ADSs that purchase Offered Shares in the Rights Offering and deliver the purchase price for such shares and other amounts as set forth in Section 2 shall receive Common ADSs with respect to such purchased Offered Shares; (vi) unless otherwise agreed among the Parties, prepare all documents necessary to effectuate the Agreed Plan and the Rights Offering, and distribute the applicable documents concurrently to the Investors and their respective legal and financial advisors, as soon as reasonably practicable, but in no event less than at least five (5) Business Days before the date when the Debtors intend to file or execute such document(s) and afford reasonable opportunity to provide prompt comment and review to the respective legal and financial advisors for the Investors in advance of any filing or execution thereof; (vii) not to offer any Commitments to any other person other than the Investors; (viii) except pursuant to any customary management incentive plan implemented by the Debtors following approval of the Agreed Plan, not to offer, issue or sell (or agree to offer, issue or sell) to any Person (i) any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest) of any Debtor or any of its Affiliates, and (ii) any option, warrant, subscription, contract, conversion, call, put or other right or obligation to purchase, acquire, sell, dispose of or issue any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest or any rights or interests exercisable therefor) of any Debtor, including any debt or other security convertible into, exchangeable for or exercisable for any such interest in any Debtor or any of its Affiliate; except in any case to the extent (x) contemplated by and in accordance with the Agreed Plan or (y) contemplated by and in accordance with any management incentive equity plan that is approved in accordance with applicable Law; (ix) take all commercially reasonably necessary actions in furtherance of the implementation of the Agreed Plan, including without limitation: A. taking all commercially reasonably actions to ensure that (1) the Reorganization Court enters an order confirming the Agreed Plan in form and in substance satisfactory to the Investors on the timeframe contemplated herein, (2) the Enforcement Orders are in form and substance satisfactory to the Investors and entered within the timeframe contemplated herein and (3) that such orders in (1) and (2) of this paragraph are not modified, amended, reversed, vacated, or stayed by a court of competent jurisdiction; and B. opposing any and all actions by any existing shareholders or any other party for an injunction or stay of the consummation of the transactions set forth in the Agreed Plan this SRC Agreement or any related agreements or documents, in any and all courts in which such actions are brought until such actions are denied or dismissed by an order of the court of first instance and such order is a Final Order; and C. to the extent appropriate and necessary to implement the Agreed Plan, requesting that the Judicial Court of the Region of Lisbon (the “Portuguese Court”), in which recognition proceedings are currently pending with respect to Telemar and Móvel, enter order(s) recognizing and enforcing the Agreed Plan (the “Portuguese Enforcement Orders”) and together with the U.S. Enforcement Orders and the U.K. Enforcement Orders, the “Enforcement Orders”). (x) adhere to, and comply in all respects with, the Governance and Operational Reforms as set forth in the Agreed Plan, including for the avoidance of doubt with any interim measures that shall take effect prior to the Rights Offering; (xi) discuss in good faith with the Investors potential exemptions under applicable securities laws, pursuant to which the filing of the Rights Registration Statement in connection with the Rights Offering would be unnecessary; (xii) (A) timely file a formal objection to any decision issued by the Reorganization Court (and any motion filed with the Reorganization Court by a third party seeking such a decision) (1) directing the appointment of any person with expanded powers to operate the Debtors’ businesses or a trustee, (2) converting the Reorganization Proceedings into a falência proceeding or (3) dismissing the Reorganization Proceedings and (B) vigorously prosecute such objections in consultation with the Investors, including in courts of appeal as may be needed; (xiii) take no actions, and not encourage any other person to take any actions, inconsistent with this SRC Agreement or the Agreed Plan, or that would, or would reasonably be expected to, directly or indirectly, delay or impede the solicitation, confirmation or consummation of the Agreed Plan and/or the Rights Offering; (xiv) take all actions necessary, including but not limited to, timely filing formal objections, to oppose any motion filed with the Reorganization Court or any other court by a third party seeking entry of an order granting any relief inconsistent with this SRC Agreement and the Agreed Plan, until such relief is denied or dismissed by an order of the court of first instance and such order is a Final Order; (xv) solely as reasonably requested by the Investors, permit and facilitate all due diligence necessary to consummate the transactions contemplated by the Agreed Plan and in this SRC Agreement, including, but not limited to, (A) cooperating fully with the Investors and their legal and financial advisors, and causing such Debtor’s officers, directors, officers, employees and advisors to cooperate fully, in furnishing Information (as defined below) as and when reasonably requested by any Investor and its legal and financial advisors, including with respect to the Debtors’ financial affairs, business and operations; provided, however, that the Debtors’ obligations hereunder may be conditioned upon such Investors (or their legal or financial advisors, as applicable) becoming or continuing to be party to an executed confidentiality agreement, reasonably acceptable to such Investors, approved by and with the Debtors, (B) authorizing the Investors to meet and/or have discussions with any of its officers, directors, employees and advisors from time to time as reasonably requested by any Investor to discuss any matters regarding the Debtors’ financial affairs, business and operations and (C) directing and authorizing all such persons or entities to fully disclose to any Investor all Information requested by such Investor regarding the foregoing; (xvi) not undertake any material transactions with, or enter into any agreements or understandings to undertake any material transactions with, any Affiliate of any of any of the Debtors, except as expressly provided in the Agreed Plan or as reasonably necessary to implement the Agreed Plan, any transactions contemplated therein or the Rights Offering; (xvii) taking no actions to (A) sell, abandon or otherwise dispose of any assets of the Debtors except in the ordinary course of business, or (B) sell, abandon or otherwise dispose of any material assets of the Debtors without the prior written consent of the Majority Investors, except as expressly provided in the Agreed Plan or as reasonably necessary to implement the Agreed Plan or any transactions contemplated therein; (xviii) if the Debtors know of a breach by any Debtor in any respect of the obligations, representations, warranties or covenants of the Debtors set forth in this SRC Agreement, furnish prompt (and in any within two (2) Business Days of such actual knowledge) written notice in accordance with Section 16 (Notices) to the Investors; (xix) take all necessary actions to ensure that the Required Documentation is consistent in all material respects with the Agreed Plan (as it may have been amended, modified, supplemented, or revised with the consent of the Investors); (xx) not (i) solicit, initiate, knowingly facilitate, knowingly induce or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes or could reasonably be expected to lead to, a transaction materially inconsistent with the transactions contemplated hereunder (an “Alternative Transaction”), (ii) enter into, continue, maintain or participate in any discussions or negotiations with any person who is not a Party that has made a proposal before or after the date hereof to Oi that would constitute an Alternative Transaction, or (iii) execute or enter into definitive documentation in respect of an Alternative Transaction; (xxi) until the earlier of the Closing Date or the date on which this SRC Agreement has been terminated, not enter into with any Investor or other holder of Bonds any side letter, agreement or arrangement (i) relating to the sale or purchase of any securities of a Debtor, the incurrence of debt of a Debtor or any backstop commitment agreement other than this SRC Agreement and the Agreed Plan; or (ii) that could adversely affect any; Investor’s rights under this SRC Agreement or the Agreed Plan. (xxii) the Company will use its commercially reasonable efforts to establish prior to the Closing Date the Restricted ADR Facility; and (xxiii) the Company will use commercially reasonable efforts to enter into a customary registration rights agreement with respect to the Unsubscribed Shares that the Investors purchase and any Commitment Fee Shares received by the Investors, in each case pursuant to this SRC Agreement as soon as practicable and to have declared effective pursuant thereto a resale shelf registration statement with respect to such Unsubscribed Shares and any Commitment Fee Shares on the Closing Date.
Appears in 2 contracts
Samples: Subscription and Commitment Agreement, Subscription and Commitment Agreement
Covenants of the Debtors. Unless otherwise provided The Debtors hereby covenant and agree with the Secured Party that the Debtors (a) except for Permitted Liens (as defined below), will defend the Collateral against all claims and demands of all persons at any time claiming any interest therein; (b) will not change their respective jurisdiction of organization without the prior written consent of the Secured Party; (c) will provide the Secured Party with twenty (20) days prior written notice of (i) any change in the Agreed Plan, each principal office of the Debtors covenants or the office where the Debtors maintain their books and records pertaining to each other Party that it will from the date of this SRC Agreement to and including the Closing Date:
(i) operate its businesses in the ordinary courseCustomer Receivables, including, but not limited to, maintaining their accounting policies, using their commercially reasonable efforts to preserve their assets and their business relationships, continuing to operate their billing and collection procedures, and maintaining their business records in accordance with their past practices and in accordance with industry standards;
or (ii) maintain compliance with all reporting and the movement or location of Collateral to or at any address other obligations to the CVM, subject to applicable grace periods provided for under any Law or granted by the CVM;
(iii) use commercially reasonable efforts to file its 2017 Annual Report by no later than April 30, 2018;
(iv) following the date on which the Company files the 2017 Annual Report, maintain compliance with all reporting and other obligations to the SEC, subject to applicable grace periods provided for under any Law or granted by the SEC;
(v) use their commercially reasonable efforts to take all action necessary to ensure that the holders of Common ADSs and Preferred ADSs that purchase Offered Shares in the Rights Offering and deliver the purchase price for such shares and other amounts as set forth in Section 2 shall receive Common ADSs with respect to such purchased Offered Shares;
said Exhibit B-0, X-0, X-0, X-0, X-0, B-6 and B-7; (vid) unless otherwise agreed among will promptly pay any and all taxes, assessments and governmental charges upon the Parties, prepare all documents necessary to effectuate the Agreed Plan and the Rights Offering, and distribute the applicable documents concurrently Collateral prior to the Investors and their respective legal and financial advisorsdate penalties are attached thereto, as soon as reasonably practicable, but in no event less than at least five (5) Business Days before the date when the Debtors intend to file or execute such document(s) and afford reasonable opportunity to provide prompt comment and review except to the respective legal extent that such taxes, assessments and financial advisors for charges shall be contested in good faith by the Investors in advance Debtors; (e) will immediately notify the Secured Party of any filing event causing a substantial loss or execution thereof;
(vii) not to offer any Commitments to any other person other than the Investors;
(viii) except pursuant to any customary management incentive plan implemented by the Debtors following approval of the Agreed Plan, not to offer, issue or sell (or agree to offer, issue or sell) to any Person (i) any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest diminution in or any equity security or profits interest (or other rights linked to the value of any equity security or interest) of any Debtor all or any of its Affiliates, and (ii) any option, warrant, subscription, contract, conversion, call, put or other right or obligation to purchase, acquire, sell, dispose of or issue any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest or any rights or interests exercisable therefor) of any Debtor, including any debt or other security convertible into, exchangeable for or exercisable for any such interest in any Debtor or any of its Affiliate; except in any case to the extent (x) contemplated by and in accordance with the Agreed Plan or (y) contemplated by and in accordance with any management incentive equity plan that is approved in accordance with applicable Law;
(ix) take all commercially reasonably necessary actions in furtherance material part of the implementation Collateral and the amount or an estimate of the Agreed Plan, including without limitation:
A. taking amount of such loss or diminution; (f) will have and maintain insurance at all commercially reasonably actions to ensure that (1) the Reorganization Court enters an order confirming the Agreed Plan in form and in substance satisfactory to the Investors on the timeframe contemplated herein, (2) the Enforcement Orders are in form and substance satisfactory to the Investors and entered within the timeframe contemplated herein and (3) that such orders in (1) and (2) of this paragraph are not modified, amended, reversed, vacated, or stayed by a court of competent jurisdiction; and
B. opposing any and all actions by any existing shareholders or any other party for an injunction or stay of the consummation of the transactions set forth in the Agreed Plan this SRC Agreement or any related agreements or documents, in any and all courts in which such actions are brought until such actions are denied or dismissed by an order of the court of first instance and such order is a Final Order; and
C. to the extent appropriate and necessary to implement the Agreed Plan, requesting that the Judicial Court of the Region of Lisbon (the “Portuguese Court”), in which recognition proceedings are currently pending with respect to Telemar and Móvel, enter order(s) recognizing and enforcing the Agreed Plan (the “Portuguese Enforcement Orders”) and together with the U.S. Enforcement Orders and the U.K. Enforcement Orders, the “Enforcement Orders”).
(x) adhere to, and comply in all respects with, the Governance and Operational Reforms as set forth in the Agreed Plan, including for the avoidance of doubt with any interim measures that shall take effect prior to the Rights Offering;
(xi) discuss in good faith with the Investors potential exemptions under applicable securities laws, pursuant to which the filing of the Rights Registration Statement in connection with the Rights Offering would be unnecessary;
(xii) (A) timely file a formal objection to any decision issued by the Reorganization Court (and any motion filed with the Reorganization Court by a third party seeking such a decision) (1) directing the appointment of any person with expanded powers to operate the Debtors’ businesses or a trustee, (2) converting the Reorganization Proceedings into a falência proceeding or (3) dismissing the Reorganization Proceedings and (B) vigorously prosecute such objections in consultation with the Investors, including in courts of appeal as may be needed;
(xiii) take no actions, and not encourage any other person to take any actions, inconsistent with this SRC Agreement or the Agreed Plan, or that would, or would reasonably be expected to, directly or indirectly, delay or impede the solicitation, confirmation or consummation of the Agreed Plan and/or the Rights Offering;
(xiv) take all actions necessary, including but not limited to, timely filing formal objections, to oppose any motion filed with the Reorganization Court or any other court by a third party seeking entry of an order granting any relief inconsistent with this SRC Agreement and the Agreed Plan, until such relief is denied or dismissed by an order of the court of first instance and such order is a Final Order;
(xv) solely as reasonably requested by the Investors, permit and facilitate all due diligence necessary to consummate the transactions contemplated by the Agreed Plan and in this SRC Agreement, including, but not limited to,
(A) cooperating fully with the Investors and their legal and financial advisors, and causing such Debtor’s officers, directors, officers, employees and advisors to cooperate fully, in furnishing Information (as defined below) as and when reasonably requested by any Investor and its legal and financial advisors, including times with respect to the Debtors’ financial affairsTangible Collateral against risks of fire (including so-called extended coverage) and theft, business and operations; providedsuch other risks as the Secured Party may reasonably require in writing, howevercontaining such terms, that the Debtors’ obligations hereunder in such form, for such periods and written by such companies as may be conditioned upon reasonably satisfactory to the Secured Party, such Investors (or their legal or financial advisors, as applicable) becoming or continuing insurance to be party payable to an executed confidentiality agreementthe Secured Party and the Debtors as its interests may appear, reasonably acceptable and shall provide for thirty (30) days’ prior written minimum cancellation notice to such Investorsthe Secured Party, approved by and the Debtors shall furnish the Secured Party with certificates or other evidence satisfactory to the Secured Party of compliance with the Debtors, foregoing insurance provisions; (Bg) authorizing the Investors to meet and/or have discussions with any of its officers, directors, employees and advisors from time to time as reasonably requested by any Investor to discuss any matters regarding the Debtors’ financial affairs, business and operations and (C) directing and authorizing all such persons or entities to fully disclose to any Investor all Information requested by such Investor regarding the foregoing;
(xvi) not undertake any material transactions with, or enter into any agreements or understandings to undertake any material transactions with, any Affiliate of any of any of the Debtors, except as expressly provided in permitted by the Agreed Plan Consignment Agreement or as reasonably necessary to implement the Agreed Plan, any transactions contemplated therein or the Rights Offering;
(xvii) taking no actions to (A) sell, abandon or otherwise dispose of any assets of the Debtors except in the ordinary course of business, will not sell or (B) sell, abandon offer to sell or otherwise assign, transfer or dispose of the Collateral or any material assets of the Debtors interest therein, without the prior written consent of the Majority InvestorsSecured Party; (h) except for Permitted Liens, except as expressly provided will keep the Collateral free from any adverse lien, security interest or encumbrance and in good order and repair, reasonable wear and tear excepted, and will not waste or destroy the Agreed Plan or as reasonably necessary to implement the Agreed Plan Collateral or any transactions contemplated therein;
(xviii) if the Debtors know of a breach by any Debtor in any respect of the obligations, representations, warranties or covenants of the Debtors set forth in this SRC Agreement, furnish prompt (and in any within two (2) Business Days of such actual knowledge) written notice in accordance with Section 16 (Notices) to the Investors;
(xix) take all necessary actions to ensure that the Required Documentation is consistent in all material respects with the Agreed Plan (as it may have been amended, modified, supplemented, or revised with the consent of the Investors);
(xx) not part thereof; (i) solicit, initiate, knowingly facilitate, knowingly induce or knowingly encourage any inquiries regarding, or will use the making Collateral for business purposes and not in violation of any proposal statute or offer that constitutes or could reasonably be expected ordinance; (j) will keep the Collateral in good repair, working order and condition, and from time to lead totime will make to such Collateral all needful and proper repairs, a transaction materially inconsistent with renewals, replacements, extensions, additions, betterments and improvements thereto, to the transactions contemplated hereunder extent and in the manner customary for companies in similar lines of business under similar circumstance; and (an “Alternative Transaction”), (iik) enter into, continue, maintain or participate in any discussions or negotiations with any person who is not a Party that has made a proposal before or after upon the date hereof to Oi that would constitute an Alternative Transaction, or (iii) execute or enter into definitive documentation in respect occurrence of an Alternative Transaction;
(xxi) until Event of Default, will stamp all books and records pertaining to accounts, instruments and general intangibles to evidence the earlier of the Closing Date or the date on which this SRC Agreement has been terminated, not enter into with any Investor or other holder of Bonds any side letter, agreement or arrangement (i) relating Secured Party’s security interest therein in form satisfactory to the sale or purchase of any securities of a Debtor, Secured Party immediately upon the incurrence of debt of a Debtor or any backstop commitment agreement other than this SRC Agreement and the Agreed Plan; or (ii) that could adversely affect any; InvestorSecured Party’s rights under this SRC Agreement or the Agreed Planwritten demand.
(xxii) the Company will use its commercially reasonable efforts to establish prior to the Closing Date the Restricted ADR Facility; and
(xxiii) the Company will use commercially reasonable efforts to enter into a customary registration rights agreement with respect to the Unsubscribed Shares that the Investors purchase and any Commitment Fee Shares received by the Investors, in each case pursuant to this SRC Agreement as soon as practicable and to have declared effective pursuant thereto a resale shelf registration statement with respect to such Unsubscribed Shares and any Commitment Fee Shares on the Closing Date.
Appears in 1 contract
Covenants of the Debtors. Unless otherwise provided in the Agreed Plan, each of the Debtors covenants to each other Party that it will from the date of this SRC Agreement to and including the Closing Date:
(i) operate its businesses in the ordinary course, including, but not limited to, maintaining their accounting policies, using their commercially reasonable efforts to preserve their assets and their business relationships, continuing to operate their billing and collection procedures, and maintaining their business records in accordance with their past practices and in accordance with industry standards;
(ii) maintain compliance with all reporting and other obligations to the CVM, subject to applicable grace periods provided for under any Law or granted by the CVM;
(iii) use commercially reasonable efforts to file its 2017 Annual Report by no later than April 30, 2018;
(iv) following the date on which the Company files the 2017 Annual Report, maintain compliance with all reporting and other obligations to the SEC, subject to applicable grace periods provided for under any Law or granted by the SEC;
(v) use their commercially reasonable efforts to take all action necessary to ensure that the holders of Common ADSs and Preferred ADSs that purchase Offered Shares in the Rights Offering and deliver the purchase price for such shares and other amounts as set forth in Section 2 shall receive Common ADSs with respect to such purchased Offered Shares;
(vi) unless otherwise agreed among the Parties, prepare all documents necessary to effectuate the Agreed Plan and the Rights Offering, and distribute the applicable documents concurrently to the Investors and their respective legal and financial advisors, as soon as reasonably practicable, but in no event less than at least five (5) Business Days before the date when the Debtors intend to file or execute such document(s) and afford reasonable opportunity to provide prompt comment and review to the respective legal and financial advisors for the Investors in advance of any filing or execution thereof;
(vii) not to offer any Commitments to any other person other than the Investors;
(viii) except pursuant to any customary management incentive plan implemented by the Debtors following approval of the Agreed Plan, not to offer, issue or sell (or agree to offer, issue or sell) to any Person (i) any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest) of any Debtor or any of its Affiliates, and (ii) any option, warrant, subscription, contract, conversion, call, put or other right or obligation to purchase, acquire, sell, dispose of or issue any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest or any rights or interests exercisable therefor) of any Debtor, including any debt or other security convertible into, exchangeable for or exercisable for any such interest in any Debtor or any of its Affiliate; except in any case to the extent (x) contemplated by and in accordance with the Agreed Plan or (y) contemplated by and in accordance with any management incentive equity plan that is approved in accordance with applicable Law;
(ix) take all commercially reasonably necessary actions in furtherance of the implementation of the Agreed Plan, including without limitation:
A. taking all commercially reasonably actions to ensure that (1) the Reorganization Court enters an order confirming the Agreed Plan in form and in substance satisfactory to the Investors on the timeframe contemplated herein, (2) the Enforcement Orders are in form and substance satisfactory to the Investors and entered within the timeframe contemplated herein and (3) that such orders in (1) and (2) of this paragraph are not modified, amended, reversed, vacated, or stayed by a court of competent jurisdiction; and
B. opposing any and all actions by any existing shareholders or any other party for an injunction or stay of the consummation of the transactions set forth in the Agreed Plan this SRC Agreement or any related agreements or documents, in any and all courts in which such actions are brought until such actions are denied or dismissed by an order of the court of first instance and such order is a Final Order; and
C. to the extent appropriate and necessary to implement the Agreed Plan, requesting that the Judicial Court of the Region of Lisbon (the “Portuguese Court”), in which recognition proceedings are currently pending with respect to Telemar and Móvel, enter order(s) recognizing and enforcing the Agreed Plan (the “Portuguese Enforcement Orders”) and together with the U.S. Enforcement Orders and the U.K. Enforcement Orders, the “Enforcement Orders”).
(x) adhere to, and comply in all respects with, the Governance and Operational Reforms as set forth in the Agreed Plan, including for the avoidance of doubt with any interim measures that shall take effect prior to the Rights Offering;
(xi) discuss in good faith with the Investors potential exemptions under applicable securities laws, pursuant to which the filing of the Rights Registration Statement in connection with the Rights Offering would be unnecessary;
(xii) (A) timely file a formal objection to any decision issued by the Reorganization Court (and any motion filed with the Reorganization Court by a third party seeking such a decision) (1) directing the appointment of any person with expanded powers to operate the Debtors’ businesses or a trustee, (2) converting the Reorganization Proceedings into a falência proceeding or (3) dismissing the Reorganization Proceedings and (B) vigorously prosecute such objections in consultation with the Investors, including in courts of appeal as may be needed;
(xiii) take no actions, and not encourage any other person to take any actions, inconsistent with this SRC Agreement or the Agreed Plan, or that would, or would reasonably be expected to, directly or indirectly, delay or impede the solicitation, confirmation or consummation of the Agreed Plan and/or the Rights Offering;
(xiv) take all actions necessary, including but not limited to, timely filing formal objections, to oppose any motion filed with the Reorganization Court or any other court by a third party seeking entry of an order granting any relief inconsistent with this SRC Agreement and the Agreed Plan, until such relief is denied or dismissed by an order of the court of first instance and such order is a Final Order;
(xv) solely as reasonably requested by the Investors, permit and facilitate all due diligence necessary to consummate the transactions contemplated by the Agreed Plan and in this SRC Agreement, including, but not limited to,
(A) cooperating fully with the Investors and their legal and financial advisors, and causing such Debtor’s officers, directors, officers, employees and advisors to cooperate fully, in furnishing Information (as defined below) as and when reasonably requested by any Investor and its legal and financial advisors, including with respect to the Debtors’ financial affairs, business and operations; provided, however, that the Debtors’ obligations hereunder may be conditioned upon such Investors (or their legal or financial advisors, as applicable) becoming or continuing to be party to an executed confidentiality agreement, reasonably acceptable to such Investors, approved by and with the Debtors, (B) authorizing the Investors to meet and/or have discussions with any of its officers, directors, employees and advisors from time to time as reasonably requested by any Investor to discuss any matters regarding the Debtors’ financial affairs, business and operations and (C) directing and authorizing all such persons or entities to fully disclose to any Investor all Information requested by such Investor regarding the foregoing;
(xvi) not undertake any material transactions with, or enter into any agreements or understandings to undertake any material transactions with, any Affiliate of any of any of the Debtors, except as expressly provided in the Agreed Plan or as reasonably necessary to implement the Agreed Plan, any transactions contemplated therein or the Rights Offering;
(xvii) taking no actions to (A) sell, abandon or otherwise dispose of any assets of the Debtors except in the ordinary course of business, or (B) sell, abandon or otherwise dispose of any material assets of the Debtors without the prior written consent of the Majority Investors, except as expressly provided in the Agreed Plan or as reasonably necessary to implement the Agreed Plan or any transactions contemplated therein;
(xviii) if the Debtors know of a breach by any Debtor in any respect of the obligations, representations, warranties or covenants of the Debtors set forth in this SRC Agreement, furnish prompt (and in any within two (2) Business Days of such actual knowledge) written notice in accordance with Section 16 (Notices) to the Investors;
(xix) take all necessary actions to ensure that the Required Documentation is consistent in all material respects with the Agreed Plan (as it may have been amended, modified, supplemented, or revised with the consent of the Investors);
(xx) not (i) solicit, initiate, knowingly facilitate, knowingly induce or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes or could reasonably be expected to lead to, a transaction materially inconsistent with the transactions contemplated hereunder (an “Alternative Transaction”), (ii) enter into, continue, maintain or participate in any discussions or negotiations with any person who is not a Party that has made a proposal before or after the date hereof to Oi that would constitute an Alternative Transaction, or (iii) execute or enter into definitive documentation in respect of an Alternative Transaction;
(xxi) until the earlier of the Closing Date or the date on which this SRC Agreement has been terminated, not enter into with any Investor or other holder of Bonds any side letter, agreement or arrangement (i) relating to the sale or purchase of any securities of a Debtor, the incurrence of debt of a Debtor or any backstop commitment agreement other than this SRC Agreement and the Agreed Plan; or (ii) that could adversely affect any; Investor’s rights under this SRC Agreement or the Agreed Plan.
(xxii) the Company will use its commercially reasonable efforts to establish prior to the Closing Date the Restricted ADR Facility; and
(xxiii) the Company will use commercially reasonable efforts to enter into a customary registration rights agreement with respect to the Unsubscribed Shares that the Investors purchase and any Commitment Fee Shares received by the Investors, in each case pursuant to this SRC Agreement as soon as practicable and to have declared effective pursuant thereto a resale shelf registration statement with respect to such Unsubscribed Shares and any Commitment Fee Shares on the Closing Date.
Appears in 1 contract
Covenants of the Debtors. Unless otherwise provided in the Agreed Plan, each of the Debtors covenants to each other Party that it will from the date of this SRC Agreement to and including the Closing Date:
: (i) operate its businesses in the ordinary course, including, but not limited to, maintaining their accounting policies, using their commercially reasonable efforts to preserve their assets and their business relationships, continuing to operate their billing and collection procedures, and maintaining their business records in accordance with their past practices and in accordance with industry standards;
; (ii) maintain compliance with all reporting and other obligations to the CVM, subject to applicable grace periods provided for under any Law or granted by the CVM;
; (iii) use commercially reasonable efforts to file its 2017 Annual Report by no later than April 30, 2018;
; (iv) following the date on which the Company files the 2017 Annual Report, maintain compliance with all reporting and other obligations to the SEC, subject to applicable grace periods provided for under any Law or granted by the SEC;
; (v) use their commercially reasonable efforts to take all action necessary to ensure that the holders of Common ADSs and Preferred ADSs that purchase Offered Shares in the Rights Offering and deliver the purchase price for such shares and other amounts as set forth in Section 2 shall receive Common ADSs with respect to such purchased Offered Shares;
; (vi) unless otherwise agreed among the Parties, prepare all documents necessary to effectuate the Agreed Plan and the Rights Offering, and distribute the applicable documents concurrently to the Investors and their respective legal and financial advisors, as soon as reasonably practicable, but in no event less than at least five (5) Business Days before the date when the Debtors intend to file or execute such document(s) and afford reasonable opportunity to provide prompt comment and review to the respective legal and financial advisors for the Investors in advance of any filing or execution thereof;
; (vii) not to offer any Commitments to any other person other than the Investors;
(viii) except pursuant to any customary management incentive plan implemented by the Debtors following approval of the Agreed Plan, not to offer, issue or sell (or agree to offer, issue or sell) to any Person (i) any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest) of any Debtor or any of its Affiliates, and (ii) any option, warrant, subscription, contract, conversion, call, put or other right or obligation to purchase, acquire, sell, dispose of or issue any share of capital stock, partnership interest, limited liability company interest, trust interest or similar interest in or any equity security or profits interest (or other rights linked to the value of any equity security or interest or any rights or interests exercisable therefor) of any Debtor, including any debt or other security convertible into, exchangeable for or exercisable for any such interest in any Debtor or any of its Affiliate; except in any case to the extent (x) contemplated by and in accordance with the Agreed Plan or (y) contemplated by and in accordance with any management incentive equity plan that is approved in accordance with applicable Law;
(ix) take all commercially reasonably necessary actions in furtherance of the implementation of the Agreed Plan, including without limitation:
A. taking all commercially reasonably actions to ensure that (1) the Reorganization Court enters an order confirming the Agreed Plan in form and in substance satisfactory to the Investors on the timeframe contemplated herein, (2) the Enforcement Orders are in form and substance satisfactory to the Investors and entered within the timeframe contemplated herein and (3) that such orders in (1) and (2) of this paragraph are not modified, amended, reversed, vacated, or stayed by a court of competent jurisdiction; and
B. opposing any and all actions by any existing shareholders or any other party for an injunction or stay of the consummation of the transactions set forth in the Agreed Plan this SRC Agreement or any related agreements or documents, in any and all courts in which such actions are brought until such actions are denied or dismissed by an order of the court of first instance and such order is a Final Order; and
C. to the extent appropriate and necessary to implement the Agreed Plan, requesting that the Judicial Court of the Region of Lisbon (the “Portuguese Court”), in which recognition proceedings are currently pending with respect to Telemar and Móvel, enter order(s) recognizing and enforcing the Agreed Plan (the “Portuguese Enforcement Orders”) and together with the U.S. Enforcement Orders and the U.K. Enforcement Orders, the “Enforcement Orders”).
(x) adhere to, and comply in all respects with, the Governance and Operational Reforms as set forth in the Agreed Plan, including for the avoidance of doubt with any interim measures that shall take effect prior to the Rights Offering;
(xi) discuss in good faith with the Investors potential exemptions under applicable securities laws, pursuant to which the filing of the Rights Registration Statement in connection with the Rights Offering would be unnecessary;
(xii) (A) timely file a formal objection to any decision issued by the Reorganization Court (and any motion filed with the Reorganization Court by a third party seeking such a decision) (1) directing the appointment of any person with expanded powers to operate the Debtors’ businesses or a trustee, (2) converting the Reorganization Proceedings into a falência proceeding or (3) dismissing the Reorganization Proceedings and (B) vigorously prosecute such objections in consultation with the Investors, including in courts of appeal as may be needed;
(xiii) take no actions, and not encourage any other person to take any actions, inconsistent with this SRC Agreement or the Agreed Plan, or that would, or would reasonably be expected to, directly or indirectly, delay or impede the solicitation, confirmation or consummation of the Agreed Plan and/or the Rights Offering;
(xiv) take all actions necessary, including but not limited to, timely filing formal objections, to oppose any motion filed with the Reorganization Court or any other court by a third party seeking entry of an order granting any relief inconsistent with this SRC Agreement and the Agreed Plan, until such relief is denied or dismissed by an order of the court of first instance and such order is a Final Order;
(xv) solely as reasonably requested by the Investors, permit and facilitate all due diligence necessary to consummate the transactions contemplated by the Agreed Plan and in this SRC Agreement, including, but not limited to,
(A) cooperating fully with the Investors and their legal and financial advisors, and causing such Debtor’s officers, directors, officers, employees and advisors to cooperate fully, in furnishing Information (as defined below) as and when reasonably requested by any Investor and its legal and financial advisors, including with respect to the Debtors’ financial affairs, business and operations; provided, however, that the Debtors’ obligations hereunder may be conditioned upon such Investors (or their legal or financial advisors, as applicable) becoming or continuing to be party to an executed confidentiality agreement, reasonably acceptable to such Investors, approved by and with the Debtors, (B) authorizing the Investors to meet and/or have discussions with any of its officers, directors, employees and advisors from time to time as reasonably requested by any Investor to discuss any matters regarding the Debtors’ financial affairs, business and operations and (C) directing and authorizing all such persons or entities to fully disclose to any Investor all Information requested by such Investor regarding the foregoing;
(xvi) not undertake any material transactions with, or enter into any agreements or understandings to undertake any material transactions with, any Affiliate of any of any of the Debtors, except as expressly provided in the Agreed Plan or as reasonably necessary to implement the Agreed Plan, any transactions contemplated therein or the Rights Offering;
(xvii) taking no actions to (A) sell, abandon or otherwise dispose of any assets of the Debtors except in the ordinary course of business, or (B) sell, abandon or otherwise dispose of any material assets of the Debtors without the prior written consent of the Majority Investors, except as expressly provided in the Agreed Plan or as reasonably necessary to implement the Agreed Plan or any transactions contemplated therein;
(xviii) if the Debtors know of a breach by any Debtor in any respect of the obligations, representations, warranties or covenants of the Debtors set forth in this SRC Agreement, furnish prompt (and in any within two (2) Business Days of such actual knowledge) written notice in accordance with Section 16 (Notices) to the Investors;
(xix) take all necessary actions to ensure that the Required Documentation is consistent in all material respects with the Agreed Plan (as it may have been amended, modified, supplemented, or revised with the consent of the Investors);
(xx) not (i) solicit, initiate, knowingly facilitate, knowingly induce or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes or could reasonably be expected to lead to, a transaction materially inconsistent with the transactions contemplated hereunder (an “Alternative Transaction”), (ii) enter into, continue, maintain or participate in any discussions or negotiations with any person who is not a Party that has made a proposal before or after the date hereof to Oi that would constitute an Alternative Transaction, or (iii) execute or enter into definitive documentation in respect of an Alternative Transaction;
(xxi) until the earlier of the Closing Date or the date on which this SRC Agreement has been terminated, not enter into with any Investor or other holder of Bonds any side letter, agreement or arrangement (i) relating to the sale or purchase of any securities of a Debtor, the incurrence of debt of a Debtor or any backstop commitment agreement other than this SRC Agreement and the Agreed Plan; or (ii) that could adversely affect any; Investor’s rights under this SRC Agreement or the Agreed Plan.
(xxii) the Company will use its commercially reasonable efforts to establish prior to the Closing Date the Restricted ADR Facility; and
(xxiii) the Company will use commercially reasonable efforts to enter into a customary registration rights agreement with respect to the Unsubscribed Shares that the Investors purchase and any Commitment Fee Shares received by the Investors, in each case pursuant to this SRC Agreement as soon as practicable and to have declared effective pursuant thereto a resale shelf registration statement with respect to such Unsubscribed Shares and any Commitment Fee Shares on the Closing Date.
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