Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement. (b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee. (c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 3 contracts
Samples: Backstop Commitment Agreement (Parker Drilling Co /De/), Restructuring Support Agreement (Parker Drilling Co /De/), Backstop Commitment Agreement
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to if such Related PurchaserPurchaser was a Commitment Party; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement or any other Transaction Agreement.
(b) No Commitment Party shall be entitled to Transfer all or any portion of its Backstop Commitment except as expressly provided in this Section 2.6(b) or Section 2.6(c). Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund an Affiliated Fund of the primary investment advisor to which is such transferring Commitment Party, the same investment advisor (ii) one or manager as more Commitment Parties or one or more Affiliated Funds of any such Commitment PartyParties (including any Additional Commitment Party or any Affiliated Fund thereof); provided, that any such transferee Commitment Party (or if an Affiliated Fund, then such Affiliated Fund) shall be party to and fully bound by, and subject to, this Agreement at the time of such Transfer; and provided, further, that such Transfer could not in good faith reasonably be expected (as reasonably determined by the Company in consultation with its outside counsel) to materially delay or jeopardize the consummation of the transactions contemplated by this Agreement, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (iiiii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Parties and its Affiliated Funds or any other Commitment Party and its Affiliated Funds, in either case created for the purpose of holding such Backstop Commitment or holding debt or equity of the Debtors, provided, that such Transfer could not in good faith reasonably be expected (as reasonably determined by the Company in consultation with its outside counsel) to materially delay or jeopardize the consummation of the transactions contemplated by this Agreement and its Subsidiariesprovided, and with respect to which further, that such Commitment Party or, in the case of a transfer to a special purpose vehicle wholly owned by another Commitment Party or any of its Affiliated Funds, such other Commitment Party or its Affiliated Funds, as applicable, either (A) has shall have provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains shall remain or, in the case of a transfer to a special purpose vehicle wholly owned by another Commitment Party or any of its Affiliated Funds, such other Commitment Party or its Affiliated Funds, as applicable, shall become fully obligated to fund the such Backstop Commitment to be transferred until the consummation of the PlanCommitment; provided, however, further that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (iiiii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i), (ii) and (iiiii), an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Backstop Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall have provided a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser Purchaser, (xy) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, Commitment and (yz) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in substantially the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on as Exhibit B attached heretohereto or otherwise in form and substance reasonably acceptable to the Company (a “Joinder Agreement”), and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company Company, Xxxxxxxx and DPW (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, furtherhowever, that no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under this Agreement or any other Transaction Agreement, including, for the avoidance of doubt, that the transferring Commitment Party shall remain fully obligated to fund its Backstop Commitment. Other than as set forth in this Section 2.6(b) and Section 2.6(c), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed delayed.
(it being understood c) In addition to Transfers pursuant to Section 2.6(b), each Commitment Party shall have the right to Transfer, directly or indirectly, all or any portion of its Backstop Commitment to any other Person; provided, that it would be unreasonable for such transferee and the transferring Commitment Party shall have duly executed and delivered to the Company to withhold its consent to any written notice of such Transfer if in substantially the form attached as Exhibit A hereto, and the Company shall have delivered countersigned copies of such notice to such transferee and the transferring Commitment Party and to Xxxxxxxx and DPW (at the addresses set forth in Section 10.1), and (i) with respect any Transfer of a Backstop Commitment to a single transferee, the transferee amount of such Backstop Commitment is another no less than (a) 0.2%, as compared to the aggregate Backstop Commitment Party or an Affiliate of another all Commitment Party Parties (other than any portfolio companythe “Aggregate Backstop Commitment Percentage”), or (iib) the transferee has the financial wherewithal to fulfill its obligations with respect to all of the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithalCommitment Party or the Backstop Commitment of any fund or account on behalf of which such Commitment Party is acting (if such Commitment Party, and, in fund or account holds a Backstop Commitment representing less than 0.2% of the case Aggregate Backstop Commitment Percentage of clauses (iall Commitment Parties) and (ii)) with respect to any transferee that is not a Commitment Party, such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transfereeagrees, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached heretoJoinder Agreement, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer obligations of a such Commitment Party’s obligations Party under this Agreement and (y) pursuant to an agreement in substantially the form attached as Exhibit C hereto, to be bound by the obligations under the Restructuring Support Agreement with respect to all Notes held by such transferee after giving effect to such Transfer, and provided, further, that such transferee and the transferring Commitment Party shall have provided evidence to the Company (which evidence is reasonably satisfactory to the Company) that such transferee is reasonably capable of fulfilling such obligations, or, alternatively, the proposed transferee shall have deposited with an agent of the Company or into an escrow account under arrangements satisfactory to the Company funds sufficient, in the reasonable determination of the Company, to satisfy such proposed transferee’s Backstop Commitment; and provided, further, that such Transfer could not in good faith reasonably be expected (as reasonably determined by the Company in consultation with its outside counsel) to materially delay or jeopardize the consummation of the transactions contemplated by this Agreement. Upon compliance with this Section 2.6(c), the transferring Commitment Party shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations, and the transferee shall become an Additional Commitment Party and be fully bound as a Commitment Party hereunder for all purposes of this Agreement.
(d) Any Transfer made in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create any obligation or liability of any Debtor Company Group Member or any other Commitment Party to the purported transferee.
(c) . Upon the effectiveness of any Transfer of a Backstop Commitment pursuant to this Agreement, the Company shall update Schedule 1A or Schedule 1B, as applicable, to reflect such Transfer, and such updates shall not constitute an amendment to this Agreement or otherwise be subject to any provision of this Agreement that applies to amendments of this Agreement. Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with this Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement2.6. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Common Shares or Preferred Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall prohibit or restrict the ability of any Commitment Party to Transfer its Notes at any time to any person; provided, however, that any Transfer of Notes by a Commitment Party shall be in accordance with the terms of the Restructuring Support Agreement.
Appears in 2 contracts
Samples: Backstop Commitment Agreement (Bristow Group Inc), Backstop Commitment Agreement
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Commitment Parties shall not be entitled to Transfer all or any portion of their Backstop Commitments except as expressly provided in this Section 2.6. Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to to: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ; (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesCompany; provided, and with respect to which that such Commitment Party or, in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, either (A) has shall have provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, Commitment in form and substance reasonably acceptable to the Company or (B) otherwise remains shall remain (or in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall become) obligated to fund the such Backstop Commitment to be transferred until the consummation of the PlanCommitment; provided, however, further that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b); or (iii) any other Commitment Party, including an Additional Commitment Party; (each of the Persons referred to in clauses (i), (ii) and (ii)iii) above, an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Backstop Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall have provided a written agreement to the Company and counsel to the Commitment Parties under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act or the accuracy of the representations set forth in Article V Section 5.8 herein as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transfereePurchaser, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, C and (z) agrees to be bound by the RSA Plan Support Agreement pursuant to a transfer agreement in the form set forth on Exhibit B attached heretoD, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company, Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and Xxxxx Xxxxxxx, LLP, as applicable (at the addresses set forth in Section 10.1), written notice of such Transfer; provided, however, that, except in the case of (iii) above, or in the case of a transfer to another Commitment Party’s Affiliated Fund in accordance with the foregoing, no such Transfer shall relieve the transferring Commitment Party from any of its obligations under this Agreement.
(c) In addition to Transfers pursuant to the preceding paragraph, each Commitment Party shall have the right to Transfer, directly or indirectly, all or any portion of its Backstop Commitment to any other entity; provided, that (i) with respect any such Transfer of a Backstop Commitment to a single transferee, the amount of such Backstop Commitment, as compared to the aggregate Backstop Commitment of all Commitment Parties (the “Aggregate Backstop Commitment Percentage”) is no less than 0.2%, or all of the Backstop Commitment of such Commitment Party or the Backstop Commitment of any fund or account on behalf of which such Commitment Party is acting if such Commitment Party, fund or account holds a Backstop Commitment representing less than 0.2% of the Aggregate Backstop Commitment Percentage of all Commitment Parties, (ii) with respect to any transferee that is not a Commitment Party, such transferee agrees, pursuant to a joinder agreement in the form set forth on Exhibit C, to be bound by the obligations of such Commitment Party under this Agreement, and each of such Commitment Party, such transferee and the Company shall have duly executed and delivered to each other a copy of such joinder agreement, and (iii) with respect to any transferee that is a Commitment Party, such transferee and the transferring Commitment Party shall have duly executed and delivered to the Debtors written notice of such Transfer in form and substance reasonably acceptable to the Debtors, and the Debtors shall have delivered countersigned copies of such notice to such transferee and the transferring Commitment Party and to counsel to the Commitment Parties; provided, further, that the transfer to any such transferee who is not a Commitment Party shall be on five (5) Business Days’ notice to the Company and shall be effective unless the Company delivers a written objection to the transferring Commitment Party within such period, setting forth reasonable grounds for such objection. Upon compliance with this paragraph, the transferring Commitment Party shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations, and the transferee shall be fully bound as a Commitment Party hereunder for all purposes of this Agreement. Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee. Upon the effectiveness of any Transfer of all or a portion of a Backstop Commitment pursuant to this Section 2.6, the Company shall update Schedule IA and/or Schedule IB hereto, as applicable, to reflect such Transfer, and such updates shall not constitute an amendment to this Agreement. The Company shall provide a copy of any such Transfer notice, Joinder Agreement or other agreement entered into in connection with any Transfers pursuant to this Section 2.6, together with any updates to Schedules IA and/or IB hereto, to counsel to the Commitment Parties promptly, and in any event within one (1) Business Day following receipt by the Company of any such agreement or notice or the date of any such update, as applicable.
(cd) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreementor Section 2.6(c), as applicable. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Common Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall prohibit or restrict the ability of any Commitment Party to Transfer its HoldCo Notes and/or HoldCo Noteholders Subscription Rights or Equity Interests and/or HoldCo Equityholders Subscription Rights, as applicable, at any time to any Person; provided, however, any Transfer of HoldCo Notes by a HoldCo Noteholders Commitment Party shall be in accordance with the terms of the Plan Support Agreement.
Appears in 2 contracts
Samples: Bankruptcy Agreement (Ultra Petroleum Corp), Backstop Commitment Agreement (Ultra Petroleum Corp)
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares New Common Stock that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Related Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related PurchaserFund, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser Fund and (iii) contain a confirmation by each such Related Purchaser Fund of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 Article 5 as applied to such Related PurchaserFund; provided, however, provided that no such designation pursuant to this Section 2.6(a2.06(a) shall relieve such Commitment Backstop Party from its funding obligations under this Agreement.
(b) Each Commitment Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment only to a Related Fund; provided that (i) any investment fund such Backstop Party and Related Fund agree in a writing addressed to the primary investment advisor to which is Company that such Commitment Related Fund shall purchase such portion of such Backstop Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ’s Backstop Commitment; (ii) one or more special purpose vehicles each Backstop Party confirms in writing its good faith belief that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity all of the Company representations and its Subsidiaries, and warranties in Article 5 are accurate with respect to which such Commitment Party either Related Fund; and (Aiii) has provided such Related Fund executes a joinder agreement substantially in the form attached hereto as Exhibit A (the “Joinder Agreement”) and delivers an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable executed copy thereof to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the PlanCompany; provided, however, provided that no such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable Transfer pursuant to this Section 2.6(b2.06(b) shall relieve such Backstop Party from its funding obligations under this Agreement if such Related Fund fails to fund hereunder.
(c) Each Backstop Party shall have the right to Transfer to any Person that is not an existing Backstop Party or Related Fund (each of the Persons referred to in clauses whom a Transfer is made, a “New Purchaser”) either (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without Commitment; provided that (A) such Transfer shall have been consented to by the prior written consent of Required Backstop Parties and the CompanyCompany (in each case, which such consent shall not be unreasonably withheld, withheld or conditioned or delayed and shall be deemed to have been given after two (it being understood that it would be unreasonable for 2) Business Days following notification in writing to the Company to withhold its consent to any of a proposed Transfer by such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio companyBackstop Party), and (B) such New Purchaser executes a Joinder Agreement and delivers an executed copy thereof to the Company (any Related Fund party as described in Section 2.06(b) and/or New Purchaser as described in this Section 2.06(c)(i) that executes and delivers such Joinder Agreement shall be referred to as a “Permitted Backstop Commitment Transferee”) or (ii) all or any portion of its obligation to fund the transferee has purchase of New Common Stock (the financial wherewithal to fulfill its obligations with respect to “Funding Obligation” and, for the avoidance of doubt, which Transfer shall not include the Backstop Commitment Commitment) pursuant to be transferred, as determined in documentation that is reasonably satisfactory to both the Backstop Party effecting such Transfer and the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides ; provided that no Backstop Party effecting a written agreement to the Company under which it (w) confirms the accuracy Transfer of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto Funding Obligation pursuant to a joinder agreement in the form set forth on Exhibit A attached heretothis Section 2.06(c)(ii) shall be relieved, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s released or novated from its obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors until such New Purchaser has actually funded all or any Commitment Party, and shall not create any obligation or liability portion of any Debtor or any other Commitment Party to the purported transfereeFunding Obligation so transferred into the Backstop Escrow Account.
(cd) Each Commitment Backstop Party, severally and not jointly, agrees that it will not not, directly or indirectly, assign or otherwise Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3Sections 2.03, Section 2.6(a2.06(a), and Section 2.6(b) of this Agreement2.06(b), 2.06(c), 7.02, 10.07. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares shares of New Common Stock or any interest therein; provided, however, provided that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 2 contracts
Samples: Backstop Commitment Agreement (Legacy Reserves Inc.), Backstop Commitment Agreement (Legacy Reserves Inc.)
Designation and Assignment Rights. (a) Each Commitment Private Placement Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Private Placement Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Private Placement Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Private Placement Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Private Placement Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation representations by each such Related Purchaser of as to the accuracy of the representations and warranties matters set forth in Section 5.7 5.6 through Section 5.11 5.9 as applied to if such Related PurchaserPurchaser was a Private Placement Party; provided, however, that no such designation pursuant to this Section 2.6(a2.7(a) shall relieve such Commitment Private Placement Party from its obligations under this Agreement or the Plan Support Agreement. In addition, the Requisite Members of the Noteholder Steering Committee in consultation with the other members of the Noteholder Steering Committee may agree in writing to reallocate a portion of the rights to purchase Private Placement Shares referred to in clause (i) of Section 2.2(b), or the economics relating thereto, committed to be purchased by the Initial Private Placement Parties (provided that no individual member of the Noteholder Steering Committee may be disproportionately affected), up until the commencement of the hearing on the PPA and BCA Approval Motion, and any Initial Private Placement Party that does not wish to participate in such reallocation may, upon written notice to such Requisite Members of the Noteholder Steering Committee, cease to be an Initial Private Placement Party and an Initial Commitment Party under the Backstop Commitment Agreement. Such withdrawing Initial Private Placement Party thereafter will have no rights or obligations as an Initial Private Placement Party under this Agreement or as an Initial Commitment Party under the Backstop Commitment Agreement. Following such a withdrawal, each of the non-withdrawing Initial Private Placement Parties shall have the obligation, within three (3) Business Days after receipt of written notice from such withdrawing Initial Private Placement Party, to assume (severally and not jointly) such withdrawing Initial Private Placement Party’s obligation to purchase all of the withdrawing Private Placement Party’s Private Placement Commitment on the terms and conditions set forth in this Agreement based upon the relative applicable Private Placement Percentages of such Initial Private Placement Parties (other than any withdrawing Initial Private Placement Parties). For the avoidance of doubt, the withdrawal of an Initial Private Placement Party pursuant to this Section 2.7(a) shall result in (i) the removal of such Initial Private Placement Party from the Noteholder Steering Committee, and (ii) the reallocation of the voting power attributable to the face amount of such withdrawing Initial Private Placement Party’s claims as if such claims were assigned or transferred pursuant to Exhibit C hereto and the definition of “Requisite Members of the Noteholder Steering Committee.”
(b) Other than as set forth in this Section 2.7(b), no Private Placement Party shall be permitted to Transfer all or any portion of its Private Placement Commitment or any of the Private Placement Commitment Premium, Private Placement Ticking Premium or Breakup Payments or any other amounts or consideration payable (collectively, “Consideration”), even if the Company consents to such Transfer. Each Commitment Private Placement Party shall have the right to Transfer all or any portion of its Backstop Private Placement Commitment only and/or its Consideration to (i) any investment fund an Affiliated Fund of the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) transferring Private Placement Party or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party Private Placement Parties and its Affiliated Funds, created for the purpose of holding such Backstop Private Placement Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) Debtors (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) such transfer shall not relieve such Commitment the Private Placement Party from its obligations under this Agreement. Other than as set forth For the avoidance of doubt, Claims held by Private Placement Parties are transferable only in this Section 2.6(b)accordance with the Plan Support Agreement; provided, no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent that such transfer shall not be unreasonably withheldrelieve the Private Placement Party from its obligations under this Agreement. Any party which purchases Claims from any Noteholder Co-Proponent, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) otherwise is the transferee is another in respect of any Claims transferred by any Noteholder Co-Proponent, may not, in respect of such purchased or otherwise transferred Claims, become a Phase Two Commitment Party, a Phase Two Private Placement Party, an Additional Commitment Party or an Affiliate of another Commitment Additional Private Placement Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with in respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeClaims.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Private Placement Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the Preferred Equity or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 2 contracts
Samples: Private Placement Agreement, Private Placement Agreement (Peabody Energy Corp)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Except as set forth in Section 2.6(c), each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, Party or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company Commitment or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred Transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner manner, as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser Purchaser, (xy) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, and (yz) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the CompanyCompany and the Requisite Commitment Parties, which consent shall not be unreasonably withheld, conditioned or delayed delayed.
(it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (ic) the transferee is another Additionally, each Commitment Party shall have the right to Transfer all or an Affiliate any portion of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferreda Restructuring Support Party or any other entity to whom such Commitment Party transfers its Note Claims in accordance with the Restructuring Support Agreement, as determined in each case, in full compliance with all transfer restrictions set forth in the Company’s reasonable opinion after request by Restructuring Support Agreement, including those contained in subclause (a) of Section 12 thereof, provided, further, that in accordance with the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii)Restructuring Support Agreement, such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth agrees in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees writing to be bound by the RSA pursuant obligations of such Commitment Party under this Agreement and is determined, after due inquiry and investigation by the Restructuring Support Parties and the Debtors, to a transfer agreement in be reasonably capable of fulfilling such obligations. Upon compliance with this Section 2.6(c), the form set forth on Exhibit B attached hereto)transferring Commitment Party shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations. Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph Section 2.6(c) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(cd) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section Sections 2.3, Section 2.6(a), and Section 2.6(b) of this Agreementor 2.6(c). After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the shares of New Common Stock or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 2 contracts
Samples: Backstop Commitment Agreement (Penn Virginia Corp), Backstop Commitment Agreement
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company and the Issuer no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, Backstop Securities and/or Holdback Securities be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than Affiliates, excluding any operating portfolio company of such Commitment Party or its Affiliates) (each, each a “Related Purchaser”) upon receipt by the Company Issuer of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and the Issuer and signed by such Commitment Backstop Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium Backstop Securities and/or Holdback Securities to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, provided that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Backstop Party from its obligations under this Agreement.
(b) Each Commitment Party Backstop Parties shall have the right not be entitled to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such their Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Holdback Commitment Party either (A) has except as expressly provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment 2.6 and each Backstop Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Partyagrees, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its termsDate, any of its rights and obligations under this Agreement to any Person other than in accordance with this Section 2.32.6. Each Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment or Holdback Commitment to (i) a Related Purchaser, Section 2.6(a(ii) any other Backstop Party or (iii) one or more other Persons that is not a Disqualified Person and is otherwise reasonably acceptable to the Company and the Issuer (if relevant) and the Requisite Backstop Parties; provided that the Backstop Party provide the Company and the Issuer, as applicable, (upon reasonable request), and the Requisite Backstop Parties, with reasonably sufficient evidence of such transferee’s (A) creditworthiness in relation to the obligation being transferred and (B) capability of consummating the transactions contemplated hereby in a timely fashion (each such transferee, an “Ultimate Purchaser”). As a condition of such Transfer, the Ultimate Purchaser must (x) execute a BCA Joinder and an RSA Joinder and (y) agree in a writing addressed to the Company and Issuer (if relevant) (A) to purchase such portion of such Backstop Party’s Backstop Commitment and/or Holdback Commitment, as applicable and (B) to be fully bound by, and subject to, this Agreement; provided that no such sale, transfer or assignment pursuant to this Section 2.6(b) shall relieve such Backstop Party from its obligations under this Agreement. Any Transfer of a Backstop Party’s obligations under this Agreement made in violation of this AgreementSection 2.6 shall be deemed null and void ab initio and of no force or effect and shall not create any obligation or liability of any Debtor or any other Backstop Party to the purported transferee. After the Closing Date, nothing in this Agreement (including the terms and conditions of any other agreement or arrangement contemplated hereby or by the Plan, including the Reorganized Valaris Corporate Documents) shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering New Secured Notes or New Shares or any interest therein; provided.
(c) Notwithstanding anything to the contrary in this Agreement, howeverneither the Issuer nor any of the Debtors shall bear the cost of any UK stamp duty reserve tax (if any) arising from or in connection with any agreement to novate, that any such Transfer shall be made assign, or otherwise transfer rights granted pursuant to an effective registration statement under this Agreement.
(d) The parties will work together in good faith after the Securities Act date of this Agreement to ensure that, to the extent possible, any transfers or an exemption from the registration requirements thereunder and rights effected pursuant to applicable securities lawsthis Section 2.6 can be effected in a tax-efficient manner, including but not limited to amending the terms of this Agreement.
Appears in 2 contracts
Samples: Restructuring Support Agreement (Valaris PLC), Backstop Commitment Agreement (Valaris PLC)
Designation and Assignment Rights. (a) Each The Commitment Party Parties shall have the right not be entitled to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some Transfer all or all any portion of (w) the Unsubscribed Shares that it is obligated to purchase hereundertheir Debt Commitments or Equity Commitments, (x) the Available Sharesas applicable, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued except as expressly provided in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under ). Notwithstanding anything to the contrary in the immediately preceding sentence or otherwise in this Agreement.
(b) Each , each Commitment Party shall have the right to Transfer all or any portion of its Backstop Debt Commitment only or Equity Commitment, as applicable, to (i) any investment fund an Affiliate or Affiliated Fund of the primary investment advisor to which is such transferring Commitment Party (other than a portfolio company of the Commitment Party, the same investment advisor its Affiliates or manager as such Commitment PartyAffiliated Funds), or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party Parties, its Affiliates and its Affiliated Funds, created for the purpose of holding such Backstop Commitment obligations or holding debt or equity of New Seadrill, the Company or its Subsidiaries and its Subsidiaries, and (iii) with respect to which Debt Commitments only, to third-party investors (other than to institutions identified by name and designated in writing by the Company prior to the date of this Agreement (“Company Disqualified Institutions”)) identified by such Commitment Party either (Awith the written consent of the other Debt Commitment Parties); provided that in the case of (i), (ii) has provided an adequate equity support letter or a guarantee and (iii), prior to such Transfer, the transferring Commitment Party shall provide the Company with reasonably sufficient evidence of such special purpose vehicletransferee’s Backstop Commitment, (x) creditworthiness in form and substance reasonably acceptable relation to the Company or obligation being transferred and (By) otherwise remains obligated to fund capability of consummating the Backstop Commitment to be transferred until the consummation of the Plantransactions contemplated hereby in a timely fashion; provided, howeverfurther, that such special purpose vehicle transferee shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle transferee shall not be directly or indirectly transferable other than to such Persons described in clauses (i), (ii) or (iiiii) of this Section 2.6(b2.6(a), and in such manner as such Commitment Party’s Backstop Commitment obligation is transferable pursuant to this Section 2.6(b2.6(a) (each of the Persons referred to in clauses (i), (ii) and (iiiii), an “Ultimate Purchaser”). In each case of a Commitment Party’s Transfer of all or any portion of its Debt Commitment or Equity Commitment, and thatas applicable, in each casepursuant to this Section 2.6(a), (1) the Ultimate Purchaser provides shall have provided a written agreement to the Company under which it (w) confirms the accuracy of the representations and warranties set forth in Article V IV as applied to such Ultimate Purchaser Purchaser, (x) agrees to purchase such portion of such Commitment Party’s Backstop Debt Commitment or the Equity Commitment, as applicable, (y) agrees to be fully bound by, and subject to, this Agreement as a Debt Commitment Party hereto pursuant to or Equity Commitment Party, as applicable, by executing a joinder agreement in the form set forth on Exhibit A attached hereto, Joinder Agreement and (z) agrees to be bound by executes a joinder agreement for the RSA pursuant to a transfer agreement Escrow Agreement in the form set forth on Exhibit B of the joinder agreement attached heretothereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and Xxxxxxxx & Xxxxx LLP (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, furtherhowever, that unless the Company has consented (in its sole discretion) that such Transfer will relieve the transferring Commitment Party of its obligations hereunder (a “Full Transfer”), no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under hereunder. For the avoidance of doubt, unless the Company consents to a Full Transfer, if such Ultimate Purchaser becomes a Defaulting Party, no provision of this AgreementAgreement shall relieve any Defaulting Party or the Commitment Party that transferred all or any portion of its Debt Commitments or Equity Commitments, as applicable, to such Defaulting Party, from liability hereunder, or limit the availability of the remedies set forth in Section 10.9. If the Company has consented to a Full Transfer (in its sole discretion), then after such Full Transfer, the transferring Commitment Party shall no longer be obligated to fund that portion of the Commitment Party’s Debt Commitment Funding Amount and/or Equity Commitment Funding Amount so transferred and if such Ultimate Purchaser becomes a Defaulting Party, the Commitment Party that transferred all or any portion of its Debt Commitment or Equity Commitment, as applicable, to such Defaulting Party shall not be liable for any obligations of such Defaulting Party. Other than as set forth in this Section 2.6(b2.6(a), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Debt Commitment or Equity Commitment, as applicable, without the prior written consent of the Company, which consent which, as applied to Transfers other than a Full Transfer, shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereedelayed.
(cb) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the New Secured Notes or Equity Securities or any interest therein; provided, however, provided that any such Transfer shall be in compliance with any applicable provisions in the Restructuring Support and Lock-Up Agreement and otherwise made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 2 contracts
Samples: Investment Agreement (Seadrill LTD), Investment Agreement (North Atlantic Drilling Ltd.)
Designation and Assignment Rights. (ai) Each Commitment Party Investor shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the its Rights Offering Shares pursuant to its exercise of the Subscription RightsNotes, Backstop Notes or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, Premium Notes to be issued in the name of, of and delivered to, one to (x) its affiliates and any investment funds or more of its Affiliates separately managed funds or Affiliated Funds (other than any portfolio company of accounts or sub-accounts which such Commitment Party Investor or its Affiliates) affiliates controls, manages, advises or sub-advises (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofor (y) other Investor, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party Investor and each such the Related PurchaserPurchaser or other Investor, as applicable, (ii) specify the number aggregate principal amount of Unsubscribed Shares, Rights Offering Shares Notes, Backstop Notes or shares of New Common Stock to be issued in respect of the Put Option Equity Premium Notes to be delivered to or issued in the name of each such Related Purchaser or other Investor, as applicable and (iii) contain if designated to a confirmation by each such Related Purchaser, attach an executed joinder of the Related Purchaser of pursuant to which the accuracy of Related Purchaser will agree to be bound by this Agreement and the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such Plan Support Agreement. No designation pursuant to this Section 2.6(a2(i)(i) shall relieve such Commitment Party Investor from its obligations under this AgreementAgreement (including the obligation to fund its Backstop Commitment).
(bii) Each Commitment Party shall have Additionally, in the right to Transfer event that any Investor (an “Assigning Party”) sells, assigns or otherwise transfers all or any portion of its Backstop Commitment only Secured Notes Claim or its Unsecured Notes Claim to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor another Investor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) a Related Purchaser of another Investor or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity a Related Purchaser of the Company and its Subsidiaries, and with respect to which such Commitment Assigning Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii)such Investor or Related Purchaser, an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides it shall as a written agreement condition precedent to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such sale, assignment or transfer, cause such Ultimate Purchaser (x) agrees other than an Investor or any other Person that is party to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as and the Plan Support Agreement or executed a Commitment Party hereto joinder pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees which such Person will agree to be bound by this Agreement and the RSA pursuant Plan Support Agreement (a “Joinder”)) to agree in writing to be bound by this Agreement and the Plan Support Agreement, including, for the avoidance of doubt, the Ultimate Purchaser agreeing to assume the Assigning Party’s pro rata share of the Backstop Commitment associated with such transfer of the Assigning Party’s Secured Notes Claim or Unsecured Notes Claim, as applicable, by executing and delivering to the parties hereto a Joinder and such Ultimate Purchaser shall be entitled to the benefits of this Agreement, including the Put Option Premium; provided, that such Assigning Party shall provide written notice to the Company and each other Investor in advance of such transfer (other than a transfer agreement in the form set forth on Exhibit B attached hereto, to another Investor or any other Person that has already executed a Joinder) and no later than two (2) Business Days prior to the transferring Commitment Party and Closing Date. Each Investor or Ultimate Purchaser agrees that any transfer of any Secured Notes Claim or Unsecured Notes Claim that does not comply with the terms and procedures set forth in this Section 2(i)(ii) shall have duly executed be deemed void ab initio. After a Right has been exercised, the underlying Secured Notes Claim or Unsecured Notes Claim will cease to be transferrable, and delivered the holder of such Secured Notes Claim or Unsecured Notes Claim shall not transfer any such Secured Notes Claim or Unsecured Notes Claim unless such holder transfers with such Secured Notes Claim or Unsecured Notes Claim the right to receive the proceeds of the corresponding Rights in the Rights Offering, subject to compliance with applicable securities laws relating to the Company written notice transfer of such Transfer; providedrestricted securities. No sale, further, that no sale assignment or Transfer transfer pursuant to this Section 2.6(b2(i)(ii) shall relieve such Commitment Party Investor from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted Agreement (including the obligation to Transfer all or any portion of fund its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio companyCommitment), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 2 contracts
Samples: Plan Support Agreement (CHC Group Ltd.), Backstop Agreement (CHC Group Ltd.)
Designation and Assignment Rights. (ai) Each Commitment Party Investor shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the its Rights Offering Common Stock, Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if anyPut Option Premium Shares, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, New Second Lien Loans or (z) the shares of Unsubscribed New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, Second Lien Loans be issued in the name of, of and delivered to, one to (x) its affiliates and any investment funds or more of its Affiliates separately managed funds or Affiliated Funds (other than any portfolio company of accounts or sub-accounts which such Commitment Party Investor or its Affiliates) affiliates controls, manages, advises or sub-advises (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofor (y) any other Investor, which notice of designation shall (iA) be addressed to the Company and signed by such Commitment Party Investor and each such the Related PurchaserPurchaser or other Investor, as applicable, (iiB) specify the number of shares of Rights Offering Common Stock, the number of Unsubscribed Shares, number of Put Option Premium Shares or amount of Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium Second Lien Loans and Unsubscribed New Second Lien Loans to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser or other Investor, as applicable, and (C) if designated to a Related Purchaser, attach an executed Joinder (as defined below) of the accuracy of Related Purchaser pursuant to which the representations Related Purchaser will agree to be bound by this Agreement and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such the Plan. No designation pursuant to this Section 2.6(a2(i)(i) shall relieve such Commitment Party Investor from its obligations under this AgreementAgreement (including the obligation to fund its Backstop Commitment).
(bii) Each Commitment Party shall have Additionally, in the right to Transfer event that any Investor (an “Assigning Party”) sells, assigns or otherwise transfers all or any portion of its Backstop Commitment only Existing Second Lien Claim to (ix) any investment fund another Investor or a Related Purchaser of another Investor, (y) a Related Purchaser of the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Assigning Party or (iiz) one or more special purpose vehicles other Persons that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided is not an adequate equity support letter Investor or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) Related Purchaser (each of the Persons referred to in clauses (i) and (ii)such Investor, Related Purchaser or other Person, an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides it shall as a written agreement condition precedent to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such sale, assignment or transfer, cause such Ultimate Purchaser (x) agrees other than an Investor or any other Person that is party to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as or executed a Commitment Party hereto joinder pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees which such Person will agree to be bound by this Agreement (a “Joinder”)) to agree in writing to be bound by this Agreement, including, for the RSA pursuant avoidance of doubt, the Ultimate Purchaser agreeing to assume the Assigning Party’s pro rata share of the Backstop Commitment (based on such Person’s Investor Percentage) associated with such transfer of the Assigning Party’s Existing Second Lien Claim by executing and delivering to the parties hereto a Joinder and such Ultimate Purchaser shall be entitled to the benefits of this Agreement, including the Put Option Premium; provided, that such Assigning Party shall provide written notice to the Company and each other Investor in advance of such transfer (other than a transfer agreement in the form set forth on Exhibit B attached hereto, to another Investor or any other Person that has already executed a Joinder) and no later than two (2) Business Days prior to the transferring Commitment Party Closing Date. For the avoidance of doubt, the Rights shall not be transferable, assignable or detachable other than in connection with the transfer of the corresponding Existing Second Lien Claim following exercise of the Rights and then only together with the transfer of the right to receive the proceeds of the corresponding Rights in the Rights Offering, subject to compliance with applicable securities laws relating to the transfer of restricted securities. Each Investor or Ultimate Purchaser shall have duly executed agrees that any transfer of any Existing Second Lien Claim that does not comply with the terms and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as procedures set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i2(i)(ii) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeinitio.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Agreement (Erickson Inc.)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Rights Offering Shares and Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium and Unsubscribed Shares to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation representations by each such Related Purchaser of as to the accuracy of the representations and warranties matters set forth in Section 5.7 5.6 through Section 5.11 5.9 as applied to if such Related PurchaserPurchaser was a Commitment Party; provided, however, that no such designation pursuant to this Section 2.6(a2.7(a) shall relieve such Commitment Party from its obligations under this Agreement or the Plan Support Agreement. In addition, the Requisite Members of the Noteholder Steering Committee in consultation with the other members of the Noteholder Steering Committee may agree in writing to reallocate a portion of the rights to purchase Rights Offering Shares and Unsubscribed Shares, or the economics relating thereto, committed to be purchased by the Initial Commitment Parties (provided that no individual member of the Noteholder Steering Committee may be disproportionately affected), up until the commencement of the hearing on the PPA and BCA Approval Motion, and any Initial Commitment Party that does not wish to participate in such reallocation may, upon written notice to such Requisite Members of the Noteholder Steering Committee, cease to be an Initial Commitment Party and an Initial Private Placement Party under the Private Placement Agreement. Such withdrawing Initial Commitment Party thereafter will have no rights or obligations as an Initial Commitment Party under this Agreement or as an Initial Private Placement Party under the Private Placement Agreement. Following such a withdrawal, each of the non-withdrawing Initial Commitment Parties shall have the obligation, within three (3) Business Days after receipt of written notice from such withdrawing Initial Commitment Party, to assume (severally and not jointly) such withdrawing Initial Commitment Party’s obligation to purchase all of the withdrawing Commitment Party’s Backstop Commitment on the terms and conditions set forth in this Agreement based upon the relative applicable Backstop Commitment Percentages of such Initial Commitment Parties (other than any withdrawing Initial Commitment Parties). For the avoidance of doubt, the withdrawal of an Initial Commitment Party pursuant to this Section 2.7(a) shall result in (i) the removal of such Initial Commitment Party from the Noteholder Steering Committee, and (ii) the reallocation of the voting power attributable to the face amount of such withdrawing Initial Commitment Party’s claims as if such claims were assigned or transferred pursuant to Exhibit C hereto and the definition of “Requisite Members of the Noteholder Steering Committee.”
(b) Other than as set forth in this Section 2.7(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment or any of the Backstop Commitment Premium, Backstop Ticking Premium or Breakup Payments or any other amounts or consideration payable (collectively, “Consideration”), even if the Company consents to such Transfer. Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only and/or its Consideration to (i) any investment fund an Affiliated Fund of the primary investment advisor to which is such transferring Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Party or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party Parties and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) Debtors (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) such transfer shall not relieve such the Commitment Party from its obligations under this Agreement. Other than as set forth For the avoidance of doubt, Claims held by Commitment Parties are transferable only in this Section 2.6(b)accordance with the Plan Support Agreement; provided, no that such transfer shall not relieve the Commitment Party shall be permitted to Transfer all from its obligations under this Agreement. Any party which purchases Claims from any Noteholder Co-Proponent, or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) otherwise is the transferee is another in respect of any Claims transferred by any Noteholder Co-Proponent, may not, in respect of such purchased or otherwise transferred Claims, become a Phase Two Commitment Party, a Phase Two Private Placement Party, an Additional Commitment Party or an Affiliate of another Commitment Additional Private Placement Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with in respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeClaims.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Common Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
(d) If a Commitment Party does not wish to purchase some or all of the number of Unsubscribed Shares which it is required to purchase pursuant to its Backstop Commitment in Section 2.2, one or more of the Initial Commitment Parties may, in their sole discretion, agree to purchase from the Company (and the Company shall sell to such Initial Commitment Parties) the applicable Unsubscribed Shares, for the Per Share Purchase Price.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Peabody Energy Corp)
Designation and Assignment Rights. (ai) Each Commitment Party Investor shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the its Rights Offering Common Stock, Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if anyPut Option Premium Shares, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, New Second Lien Loans or (z) the shares of Unsubscribed New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, Second Lien Loans be issued in the name of, of and delivered to, one to (x) its affiliates and any investment funds or more of its Affiliates separately managed funds or Affiliated Funds (other than any portfolio company of accounts or sub-accounts which such Commitment Party Investor or its Affiliates) affiliates controls, manages, advises or sub-advises (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofor (y) any other Investor, which notice of designation shall (iA) be addressed to the Company and signed by such Commitment Party Investor and each such the Related PurchaserPurchaser or other Investor, as applicable, (iiB) specify the number of shares of Rights Offering Common Stock, the number of Unsubscribed Shares, number of Put Option Premium Shares or amount of Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium Second Lien Loans and Unsubscribed New Second Lien Loans to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser or other Investor, as applicable, and (C) if designated to a Related Purchaser, attach an executed Joinder (as defined below) of the accuracy of Related Purchaser pursuant to which the representations Related Purchaser will agree to be bound by this Agreement and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such the Plan. No designation pursuant to this Section 2.6(a2(i)(i) shall relieve such Commitment Party Investor from its obligations under this Agreement.
Agreement (bincluding the obligation to fund its Backstop Commitment). (ii) Each Commitment Party shall have Additionally, in the right to Transfer event that any Investor (an “Assigning Party”) sells, assigns or otherwise transfers all or any portion of its Backstop Commitment only Existing Second Lien Claim to (ix) any investment fund another Investor or a Related Purchaser of another Investor, (y) a Related Purchaser of the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Assigning Party or (iiz) one or more special purpose vehicles other Persons that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided is not an adequate equity support letter Investor or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) Related Purchaser (each of the Persons referred to in clauses (i) and (ii)such Investor, Related Purchaser or other Person, an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides it shall as a written agreement condition precedent to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such sale, assignment or transfer, cause such Ultimate Purchaser (x) agrees other than an Investor or any other Person that is party to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as or executed a Commitment Party hereto joinder pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees which such Person will agree to be bound by this Agreement (a “Joinder”)) to agree in writing to be bound by this Agreement, including, for the RSA pursuant avoidance of doubt, the Ultimate Purchaser agreeing to assume the Assigning Party’s pro rata share of the Backstop Commitment (based on such Person’s Investor Percentage) associated with such transfer of the Assigning Party’s Existing Second Lien Claim by executing and delivering to the parties hereto a Joinder and such Ultimate Purchaser shall be entitled to the benefits of this Agreement, including the Put Option Premium; provided, that such Assigning Party shall provide written notice to the Company and each other Investor in advance of such transfer (other than a transfer agreement in the form set forth on Exhibit B attached hereto, to another Investor or any other Person that has already executed a Joinder) and no later than two (2) Business Days prior to the transferring Commitment Party Closing Date. For the avoidance of doubt, the Rights shall not be transferable, assignable or detachable other than in connection with the transfer of the corresponding Existing Second Lien Claim following exercise of the Rights and then only together with the transfer of the right to receive the proceeds of the corresponding Rights in the Rights Offering, subject to compliance with applicable securities laws relating to the transfer of restricted securities. Each Investor or Ultimate Purchaser shall have duly executed agrees that any transfer of any Existing Second Lien Claim that does not comply with the terms and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as procedures set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i2(i)(ii) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
initio. (c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(aj), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Agreement
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed its Primary Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering or Backstop Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of (or for the benefit of), and delivered toto (or on behalf of), one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliatescompanies) (each, each a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related Purchaser, ; (ii) specify the number of Unsubscribed Shares, Rights Offering Primary Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium and Backstop Shares to be delivered to or issued in the name of (or on behalf of) each such Related Purchaser Purchaser; and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 Article V as applied to such Related Purchaser; provided, however, that no such if applicable. No designation of a Related Purchaser pursuant to this Section 2.6(a) shall relieve such Commitment Backstop Party from its obligations under this Commitment Agreement.
(b) Each Commitment Backstop Party shall have the right to Transfer sell, transfer and assign all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles a Related Purchaser that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or agrees in a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable writing addressed to the Company or to (Ba) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Backstop Party’s Backstop Commitment, (yb) agrees to be fully bound by, and subject to, this Commitment Agreement as a Commitment Backstop Party for all purposes hereto pursuant to a joinder agreement in (including for purposes of determining the form set forth on Exhibit A attached heretoRequisite Backstop Parties), and (zc) agrees to be bound by attach an executed joinder of the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Related Purchaser shall have duly executed and delivered to the Company written notice of PSA. No such Transfer; providedsale, further, that no sale transfer or Transfer assignment pursuant to this Section 2.6(b) shall relieve such Commitment Backstop Party from its obligations under this Commitment Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Backstop Party, severally and not jointly, agrees that it will not not, directly or indirectly, Transfer, at any time prior to the Closing Date or the earlier termination of this Commitment Agreement in accordance with its terms, any of its rights and obligations under this Commitment Agreement to any Person other than in accordance with Section Sections 2.2, 2.3, Section 2.6(a), and Section 2.6(b) ), or any other provision of this AgreementCommitment Agreement which expressly permits such Transfer. After the Closing Date, nothing in this Commitment Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares New NII Common Stock or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws and in accordance with the Registration Rights Agreement.
Appears in 1 contract
Designation and Assignment Rights. (a) Each Equity Commitment Party shall have the right to designate by written notice to the Company Quorum no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed its Equity Commitment Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Related Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company Quorum of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company Quorum and signed by such Equity Commitment Party and each such Related PurchaserFund, (ii) specify the number of Unsubscribed Shares, Rights Offering Equity Commitment Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser Fund and (iii) contain a confirmation by each such Related Purchaser Fund of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.06 through Section 5.11 5.09 as applied to if such Related PurchaserFund were an Equity Commitment Party; provided, however, provided that no such designation pursuant to this Section 2.6(a2.05(a) shall relieve such Equity Commitment Party from its obligations under this AgreementAgreement or any other Transaction Agreement to which it is party.
(b) Each Equity Commitment Party shall have the right to Transfer all or any portion of its Backstop Equity Commitment only to (i) any investment fund a Related Fund; provided that the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such transferring Equity Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company Quorum written notice of such Transfera Transfer and; provided, furtherfurther that: (i) such Related Fund agrees in a writing addressed to Quorum that such Related Fund shall purchase such portion of such Equity Commitment Party’s Equity Commitment and makes, severally and not jointly, the representations and warranties in Article 5 with respect to such Related Fund; and (ii) such Related Fund executes a joinder agreement substantially in the form attached hereto as Exhibit A (the “Joinder Agreement”) and delivers an executed copy thereof to Quorum (a Related Fund party to a Joinder Agreement shall be referred to as a “Permitted Equity Commitment Transferee”) (it being understood that no sale or such Transfer shall be effective, including without limitation for purposes of calculating Required Equity Commitment Parties, until notification of such transfer and a copy of the executed Joinder Agreement is received by Quorum). No Transfers pursuant to this Section 2.6(b2.05(b) shall relieve such the transferring Equity Commitment Party from any of its obligations under this Agreement or any other Transaction Agreement. Other than as set forth in this Section 2.6(b), no .
(c) Each Equity Commitment Party shall be permitted have the right to Transfer all or any portion of its Backstop Equity Commitment without to any other creditworthy Person that is not an existing Equity Commitment Party or a Related Fund (such Person, a “New Purchaser”); provided, that (i) such Transfer shall have been consented to by both (A) Quorum, and (B) the prior written consent of the CompanyRequired Equity Commitment Parties, which in writing (such consent shall not be unreasonably withheldwithheld or conditioned); and (ii) such New Purchaser (A) agrees in a writing addressed to Quorum that such New Purchaser shall purchase such portion of such Equity Commitment Party’s Equity Commitment and makes, conditioned or delayed severally and not jointly, the representations and warranties in Article 5 with respect to such New Purchaser and (B) executes a joinder agreement substantially in the form of the Joinder Agreement and delivers an executed copy thereof to Quorum (it being understood that it would be unreasonable for the Company to withhold its consent to any no such Transfer if (i) the transferee is another shall be effective, including without limitation for purposes of calculating Required Equity Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company)Parties, or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof until notification of such financial wherewithal, and, in the case of clauses (i) transfer and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy copy of the representations set forth in Article V as applied to such transferee, executed Joinder Agreement is received by Quorum).
(xd) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Equity Commitment Party, and shall not create any obligation or liability of any Debtor or any other Equity Commitment Party to the purported transferee. Upon the effectiveness of any Transfer of an Equity Commitment pursuant to this Agreement, Quorum shall update Schedule 1 to reflect such Transfer, and such updates shall not constitute an amendment to this Agreement or otherwise be subject to any provision of this Agreement that applies to amendments of this Agreement.
(ce) Each Equity Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3Sections 2.02, Section 2.6(a)2.05, and Section 2.6(b) 2.06, 7.02, or 10.07 of this Agreement, as applicable. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Equity Commitment Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares shares of New Common Stock or any interest therein; provided, however, provided that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company Exide no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed its Primary Notes, Backstop Notes, Fee Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, Fee Notes be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, each a “Related Purchaser”) upon receipt by the Company Exide of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company Exide and signed by such Commitment Backstop Party and each such Related Purchaser, ; (ii) specify the number aggregate principal amount of Unsubscribed SharesPrimary Notes, Rights Offering Backstop Notes, Fee Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium and Fee Notes to be delivered to or issued in the name of each such Related Purchaser and Purchaser; (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 Article V as applied to such Related Purchaser, if applicable; provided, however, that no and (iv) attach an executed joinder of the Related Party pursuant to which such Related Party will agree to be bound by the PSA. No designation of a Related Purchaser pursuant to this Section 2.6(a) shall relieve such Commitment Backstop Party from its obligations under this Commitment Agreement.
(b) Each Commitment Backstop Party shall have the right to Transfer sell, transfer and assign all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) a Related Purchaser or (ii) one or more special purpose vehicles Persons (other than a Related Purchaser) that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance is reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) Exide and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Requisite Backstop Commitment is transferable pursuant to this Section 2.6(b) Parties (each of the Persons referred to in clauses (i) and (ii)such Related Purchaser or other Person, an “Ultimate Purchaser”), ) and that, in each case, case agrees in a writing addressed to Exide to (1a) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Backstop Party’s Backstop Commitment, (yb) agrees to be fully bound by, and subject to, this Commitment Agreement as a Commitment Backstop Party for all purposes hereto pursuant to a joinder agreement in (including for purposes of determining the form set forth on Exhibit A attached heretoRequisite Backstop Parties), and (zc) agrees to be bound by attach an executed joinder of the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Related Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of PSA. No such Transfer; providedsale, further, that no sale transfer or Transfer assignment pursuant to this Section 2.6(b) shall relieve such Commitment Backstop Party from its obligations under this Commitment Agreement. Other than as set forth in this Section 2.6(b); provided, no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Companyfurther, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) Related Purchaser or Ultimate Purchaser must also be a Permitted Transferee under the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereePSA.
(c) Each Commitment Backstop Party, severally and not jointly, agrees that it will not not, directly or indirectly, Transfer, at any time prior to the Closing Date or the earlier termination of this Commitment Agreement in accordance with its terms, any of its rights and obligations under this Commitment Agreement to any Person other than in accordance with Section Sections 2.3, Section 2.6(a), and Section 2.6(b) ), 7.3, 10.7 or any other provision of this AgreementCommitment Agreement which expressly permits such Transfer. After the Closing Date, nothing in this Commitment Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares New Second Lien Convertible Notes or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the its Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Related Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related PurchaserFund, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser Fund and (iii) contain a confirmation by each such Related Purchaser Fund of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.06 through Section 5.11 5.09 as applied to such Related PurchaserFund; provided, however, provided that no such designation pursuant to this Section 2.6(a2.06(a) shall relieve such Commitment Backstop Party from its obligations under this Agreement.Agreement.
(b) Each Commitment Backstop Party shall have the right to Transfer sell, transfer and assign all or any portion of its Backstop Commitment only to a Related Fund; provided that: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Backstop Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or Related Fund agree in a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable writing addressed to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle Related Fund shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Backstop Party’s Backstop Commitment, ; (yii) agrees each Backstop Party confirms in writing its good faith belief that all of the representations and warranties in Article 5 are accurate with respect to be fully bound by, such Related Fund; and subject to, this Agreement as a Commitment Party hereto pursuant to (iii) such Related Fund executes a joinder agreement substantially in the form set forth on attached hereto as Exhibit A attached hereto, (the “Joinder Agreement”) and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly delivers an executed and delivered copy thereof to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant (a Related Fund party to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party a Joinder Agreement shall be permitted referred to Transfer all or any portion of its as a “Permitted Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio companyTransferee”), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Backstop Party, severally and not jointly, agrees that it will not Transfernot, directly or indirectly, assign or otherwise transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3Sections 2.03, Section 2.6(a2.06(a), and Section 2.6(b) 2.06(b), 6.08, 6.09, 7.02, 10.07 or any other provision of this AgreementAgreement which expressly permits such assignment or transfer. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares shares of New Common Stock or any interest therein; provided, however, provided that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Backstop Commitment Agreement
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement[Reserved].
(b) Commitment Parties shall not be entitled to Transfer all or any portion of their Commitments except as expressly provided in this Section 2.6. Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to to: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ; (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesCompany; provided, and with respect to which that such transferring Commitment Party or, in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall either (A) has have provided an the Company with a commercially reasonable and adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, Commitment in form and substance reasonably acceptable to the Company or (B) otherwise remains remain (or in the case of a transfer to another Commitment Party's Affiliated Fund, such other Commitment Party, shall become) obligated to fund the Backstop Commitment to be transferred until the consummation of the Plansuch Commitment; provided, however, further that any such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b); or (iii) any other Commitment Party (each of the Persons referred to in clauses (i), (ii) and (ii)iii) above, an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall provide a written agreement instrument to the Company and counsel to the Commitment Parties under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act and the accuracy of the representations set forth in Article V Section 5.8 herein as applied to such Ultimate Purchaser Purchaser, (x) agrees to purchase such the transferred portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a 17-13193-mew Doc 542-3 Filed 08/29/18 Entered 08/29/18 19:09:16 Exhibit C: A&R Commitment Agreement Pg 18 of 60 joinder agreement in the form set forth on Exhibit A attached hereto, C (the “Joinder Agreement”) and (z) agrees to be bound by the RSA Plan Support Agreement pursuant to a transfer agreement in the form set forth on Exhibit B attached heretoD, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and counsel to the Commitment Parties (at the addresses set forth in Section 10.1), written notice of such Transfer; provided, furtherhowever, that that, except in the case of clause (iii) above, or in the case of a transfer to another Commitment Party's Affiliated Fund in accordance with the foregoing, no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) [Reserved].
(d) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a2.6(b), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the New Second Lien PIK Toggle Notes or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Commitment Agreement
Designation and Assignment Rights. (a) Other than as expressly set forth in this Section 2.6, no Commitment Party shall be permitted to Transfer its Commitments. 24
(b) Each Commitment Party shall have the right to designate by written notice to the Company Company, the Subscription Agent and Milbank, no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares Units or 4(a)(2) Backstop Commitment Units that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party (or its Affiliates) or any Subsidiary thereof) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares Units or shares of New Common Stock to be issued in respect of the Put Option Equity Premium 4(a)(2) Backstop Commitment Units to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than Additionally, subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any creditworthy Related Purchaser, provided, that such Commitment Party shall (i) provide written notice to the Company of such Transfer as far in advance thereof as practicable and (ii) deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit B, executed by such Commitment Party and such Related Purchaser.
(c) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any other Commitment Party or such other Commitment Party’s Related Purchaser (each, an “Existing Commitment Party Purchaser”), provided, that (i) such Existing Commitment Party Purchaser or such Existing Commitment Party Purchaser’s Affiliate or Affiliated Fund shall have been a Commitment Party as of immediately prior to such Transfer and (ii)(1) to the extent such Existing Commitment Party Purchaser is not a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit C-1, executed by such Commitment Party and such Existing Commitment Party Purchaser and (2) to the extent such Existing Commitment Party Purchaser is already a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank an amendment to this Agreement, substantially in the form attached hereto as Exhibit C-2, executed by such Commitment Party and such Existing Commitment Party Purchaser.
(d) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any Person that is not an Existing Commitment Party Purchaser (each of the Persons to whom a Transfer is made, a “New Purchaser”), provided, that (i) such Transfer shall have been consented to by the Requisite Commitment Parties in writing (such consent not to be unreasonably withheld, conditioned or delayed; provided, that the Requisite Commitment Parties shall be deemed to have so consented if they fail to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), (ii) such Transfer shall have been consented to by the Company in writing (such consent not be unreasonably withheld, conditioned or delayed, it being understood that it would be unreasonable 25
(e) No Commitment Party shall have the right to Transfer all or any portion of its Commitments to the Company or any of the Company’s Affiliates. A Commitment Party shall have the right to Transfer all or any portion of its Commitments to any other Person pursuant to the terms of this Agreement whether or not it is making a simultaneous transfer of a corresponding amount of the Note Claims. For the avoidance of doubt, it is the intent of the Parties that a Transfer of the Commitments pursuant to this Section 2.6 will represent a transfer of proportional portions of the Rights Offering Backstop Commitment and the 4(a)(2) Backstop Commitment and that, accordingly, any Transfer of such Commitment Party’s Rights Offering Backstop Commitment or 4(a)(2) Backstop Commitment shall be permitted only if coupled by a proportional Transfer of the other. Except as set forth in this the first sentence of Section 2.6(b), no Commitment Party shall be permitted have the right to Transfer all or any portion of its Backstop Commitments to any other Person following receipt of the Funding Notice pursuant to, and in accordance with, Section 2.4. Any Commitment without the prior written consent of Party seeking to Transfer its Commitments to any other Person must provide the Company, the Subscription Agent and Milbank with prior written notice of such proposed Transfer no less than three (3) Complete Business Days prior to the date of the consummation of such proposed Transfer, which consent notice shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for state the Company to withhold its consent to any such Transfer if total amount of (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or Commitments to be Transferred (ii) the transferee has the financial wherewithal Joinder Commitments to fulfill its obligations with respect be Transferred and (iii) Incremental Commitments to be Transferred, in each case, to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied extent applicable to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto)Transfer. Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor or any other Commitment Party or any Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the Common Units or any interest therein; .
(f) Any Person that is Transferred a Joinder Commitment by a Joinder Commitment Party in compliance with the terms of this Section 2.6 shall be a Joinder Commitment Party with respect to such Commitment, as applicable, for all purposes herein. Any Person that is Transferred a Commitment by a Senior Commitment Party in compliance with the terms of this Section 2.6 shall be a Senior Commitment Party with respect to such Commitment. Any Person that is Transferred an Incremental Commitment by an Incremental Senior Commitment Party in compliance with the terms of this Section 2.6, shall be an Incremental Senior Commitment Party with respect to such Incremental Commitment. 26
(g) No Exit Term Loan Commitment Party shall be permitted to Transfer its Exit Term Loan Backstop Commitment, other than (i) a Transfer of all or any portion of its Exit Term Loan Backstop Commitment to any creditworthy Related Purchaser, provided, however, that any such Exit Term Loan Commitment Party shall (A) provide written notice to the Company and Milbank of such Transfer shall be made pursuant as far in advance thereof as practicable and (B) to the extent such Related Purchaser is not an effective registration statement under Exit Term Loan Commitment Party hereunder deliver to the Securities Act Company and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit E, executed by such Exit Term Loan Commitment Party, such Related Purchaser and the Company, and (ii) Transfer a proportional amount of its Exit Term Loan Backstop Commitment to any Person in connection with any Transfer of all or an exemption from the registration requirements thereunder and pursuant any portion of such Party’s Commitments to applicable securities lawssuch Person in accordance with Sections 2.6(c) through (e).
Appears in 1 contract
Samples: Backstop Commitment and Equity Investment Agreement (Vanguard Natural Resources, Inc.)
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Escrow Funding Date that some or all of (w) the Unsubscribed Shares that it is obligated its Backstop Securities be delivered to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, each a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofhereof (it being understood that payment by either the Related Purchaser or the Backstop Party shall satisfy the applicable payment obligations of the Backstop Party), which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related Purchaser, (ii) specify the number or amount of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium such securities to be delivered to or issued in the name of such Related Purchaser Purchaser(s) and (iii) contain a confirmation by each such Related Purchaser Purchaser(s) of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.8 as applied to such Related PurchaserPurchaser(s); provided, however, provided that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Backstop Party from its obligations under this AgreementAgreement nor shall it change the Backstop Commitment Percentage held by the designating Backstop Party.
(b) Each Commitment Backstop Party shall have the right right, at any time at least two (2) Business Days prior to the Escrow Funding Date, to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) a Related Purchaser or (ii) one or more special purpose vehicles any other Backstop Party (each such transferee, an “Ultimate Purchaser”); provided that are wholly-owned by one or more as a condition of such Commitment Party and its Affiliated FundsTransfer, created for the purpose Ultimate Purchaser must, on or prior to the date of holding the relevant transfer (except as otherwise permitted by Section 10.7(b)), (w) agree in a writing addressed to the Company (with a copy to respective counsel to each of the Backstop Parties) to purchase such portion of such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicleParty’s Backstop Commitment, (x) if such Ultimate Purchaser is not an Original Backstop Party, pay any increase in form costs incurred by the Company as a result of the jurisdiction of organization of the transferee being different than that of any of the existing parties to this Agreement (as of the date of this Agreement) that would not have been incurred by the Company absent the Transfer, (y) to the extent not already party to this Agreement and/or the Restructuring Support Agreement, execute (and substance reasonably acceptable deliver to the Company or (B) otherwise remains obligated with a copy to fund respective counsel to each of the Backstop Commitment Parties) (A) for Ultimate Purchasers not already party to be transferred until this Agreement, a joinder to this Agreement in the consummation of the Plan; providedform attached as Exhibit A hereto, however, it being understood that such special purpose vehicle joinder shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and satisfy the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described requirements set forth in clauses (iw) or and (iix) of this Section 2.6(b), and/or (B) for Ultimate Purchasers not already party to the Restructuring Support Agreement, a Joinder to the Restructuring Support Agreement (as defined in, and in substantially the form previously agreed to pursuant to the Restructuring Support Agreement), and (z) for the avoidance of doubt, any such manner as Ultimate Purchaser who was not already party to the Restructuring Support Agreement must comply with the provisions of Section 6(e) of the Restructuring Support Agreement it being understood that delivery of the Joinder to the Restructuring Support Agreement described in clause (y)(B) of this Section 2.6(b) shall satisfy such Commitment Party’s provisions; and provided further, that any purported Transfer in violation of this Section 2.6(b) shall be void ab initio. Upon consummation of a Transfer of a Backstop Commitment is transferable to an Ultimate Purchaser pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to Backstop Party making such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to Transfer shall be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party relieved from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each The Company shall maintain a copy of each joinder delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Backstop Parties and the Backstop Commitments of each Backstop Party from time to time; provided that the Company shall share a copy of the Register with the Backstop Parties’ Advisors upon reasonable request and shall consult with the Backstop Parties’ Advisors concerning any updates thereto. The Parties hereto shall treat each Person whose name is recorded in the Register as the owner of a Backstop Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) for all purposes of this Agreement. .
(d) After the Closing Date, nothing in this Agreement or the Reorganized LATAM Parent Corporate Documents shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares Plan Securities or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Commitment Agreement
Designation and Assignment Rights. (a) No Backstop Party shall be entitled to Transfer all or any portion of its Backstop Commitment except as expressly provided in this Section 2.6. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Backstop Party (or any permitted transferee thereof) to Transfer any of the Common Shares or any interest therein; provided, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities Laws. Notwithstanding anything in this Agreement to the contrary, this Agreement does not limit or restrict the Transfer of any Company Claims with respect to the Debtors and nothing in this Agreement shall restrict the ability of a Backstop Party to Transfer any Company Claims (including the associated Subscription Rights) in compliance with Section 8 of the Restructuring Support Agreement, and any such Transfer shall not impair or otherwise affect the rights and obligations of such Backstop Party under this Agreement or, for the avoidance of doubt, result in any change to such Backstop Party’s Backstop Commitment Percentage.
(b) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares, Direct Investment Shares and Put Option Premium Shares that it is obligated or has the right to receive hereunder (including any Available Shares that such Backstop Party has agreed to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant in addition to its exercise of the Subscription Rights, or (zBackstop Commitment as a Replacing Backstop Party) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Direct Investment Shares or shares of New Common Stock to be issued in respect of the and Put Option Equity Premium Shares to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.4 through Section 5.11 5.9, as applied to if such Related PurchaserPurchaser was a Backstop Party; provided, however, that no such designation pursuant to this Section 2.6(a2.6(b) shall relieve such Commitment Backstop Party from its obligations under this Agreement.
(bc) Each Commitment Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund an Affiliated Fund of the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) transferring Backstop Party or (ii) one another Backstop Party or more special purpose vehicles an Affiliated Fund thereof without the prior written consent of the Company or any other Backstop Party provided, that are wholly-owned by one as a precondition to any such Transfer (i) such transferee, if not already a Backstop Party, shall agree to be fully bound by, and subject to, this Agreement as a Backstop Party hereto and shall execute and deliver a joinder agreement in substantially the form attached as Exhibit A hereto or more otherwise in form and substance reasonably acceptable to the Company (a “Joinder Agreement”) and (ii) such transferee, if not already a party to the Restructuring Support Agreement, shall execute a joinder to the Restructuring Support Agreement. The parties agreeing to such Transfer shall provide prompt written notice thereof to the Company and the other Backstop Parties. Any such Transfer shall relieve the transferring Backstop Party from all of its rights and obligations under this Agreement with respect to such transferred Backstop Commitment if (i) to the extent such transferred Backstop Commitment is to an existing Backstop Party, after giving effect to such Transfer, the aggregate Backstop Commitments of the transferee Backstop Party and all of its Affiliated Funds, created for the purpose taken as a whole, does not exceed 125% of holding such aggregate Backstop Commitment or holding debt or equity Commitments in effect as of the Company and its Subsidiaries, and with respect to which such Commitment date of this Agreement; (ii) the transferring Backstop Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s guarantee, in an amount sufficient to satisfy the transferred Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains fully obligated to fund such Backstop Commitment; or (iii) the Company provides prior written consent of such Transfer, not to be unreasonably withheld, conditioned or delayed.
(i) Subject to Section 2.6(d)(ii), if a Backstop Party desires to Transfer (a “Transferring Backstop Party”) all or any portion of its Backstop Commitment to a Person other than a Backstop Party as of such date (a “New Backstop Party”), such Transferring Backstop Party shall first provide written notice (an “Offering Notice”) to the other Backstop Parties party to this Agreement as of such date (the “Non-Transferring Backstop Parties”) and the Company of such Transfer, which Offering Notice shall state the amount of the Backstop Commitment proposed to be transferred until Transferred by the consummation of Transferring Backstop Party (the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s “Offered Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate PurchaserCommitment”), the consideration offered by the New Backstop Party and thatthe other material terms and conditions of the Transfer, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof. The Offering Notice shall constitute the Transferring Backstop Party’s offer to Transfer the Offered Backstop Commitment to the Non-Transferring Backstop Parties, which offer shall be irrevocable for ten (10) Business Days (the “ROFO Notice Period”). Upon receipt of the Offering Notice, each Non-Transferring Backstop Party may elect during the ROFO Notice Period, in each caseits sole discretion, (1) to assume, in whole or in part, the Ultimate Purchaser provides a written agreement to Offered Backstop Commitment on the Company under which it (w) confirms same terms and for the accuracy of the representations same consideration as set forth in Article V as applied the Offering Notice by delivering a written notice (an “Offer Acceptance Notice”) to such Ultimate Purchaser (x) agrees the Transferring Backstop Party, the other Non-Transferring Backstop Parties and the Company stating that it offers to purchase such portion of the Offered Backstop Commitment on the terms specified in the Offering Notice. Any Offer Acceptance Notice shall be binding upon delivery and irrevocable by the applicable Non-Transferring Backstop Party. If more than one Non-Transferring Backstop Party (each, a “Purchasing Backstop Party”) timely delivers an Offer Acceptance Notice and the aggregate amount of Backstop Commitments to be purchased pursuant to such Commitment Party’s Offer Acceptance Notices is greater than the amount of the Offered Backstop Commitment, each Purchasing Backstop Party shall be allocated a portion of the Offered Backstop Commitment based upon its applicable Backstop Commitment Percentage as of the date of the Offering Notice as compared to the Backstop Commitment Percentages of all of the Purchasing Backstop Parties, unless otherwise agreed to by the Non-Transferring Backstop Parties. To the extent any portion of the Offered Backstop Commitment is not assumed by the Non-Transferring Backstop Parties, the Transferring Backstop Party shall have a thirty (y30) agrees calendar day period in which to agree a Transfer of such portion to a New Backstop Party on substantially the same (or more favorable as to the Transferring Backstop Party) terms and conditions as were set forth in the Offering Notice. If the Transferring Backstop Party does not agree such a Transfer in accordance with the foregoing time limitations, then the right of the Transferring Backstop Party to agree such Transfer pursuant to this Section 2.6(d) shall terminate and the Transferring Backstop Party shall again comply with the procedures set forth in this Section 2.6(d) with respect to any proposed Transfer of its Backstop Commitments to a new Backstop Party.
(ii) Notwithstanding anything to the contrary set forth in Section 2.6(d)(i), a Transferring Backstop Party may Transfer, in one or more Transfers, to a New Backstop Party up to an aggregate of ten percent (10%) of the Backstop Commitments of such Transferring Backstop Party and all of its Affiliated Funds, taken as a whole, in effect as of the date hereof, without providing an Offering Notice or otherwise complying with the procedures in Section 2.6(d)(i).
(iii) If a New Backstop Party assumes any Backstop Commitments in compliance with this Section 2.6(d), such Transfer shall relieve the Transferring Backstop Party from all of its rights and obligations under this Agreement with respect to such transferred Backstop Commitment if (A) to the extent such transferred Backstop Commitment is to a Non-Transferring Backstop Party, on the same conditions as set forth in Section 2.6(c), (B) the transferring Backstop Party (1) has provided an adequate equity support letter or a guarantee, in an amount sufficient to satisfy the transferred Backstop Commitment, in form and substance reasonably acceptable to the Company or (2) remains fully obligated to fund such Backstop Commitment; or (C) the Company provides prior written consent of such Transfer, not to be unreasonably withheld, conditioned or delayed. As preconditions to any Transfer of a Backstop Commitment to a New Backstop Party pursuant to this Section 2.6(d): (I) such New Backstop Party shall agree to be fully bound by, and subject to, this Agreement as a Commitment Backstop Party hereto pursuant to and shall execute and deliver a Joinder Agreement and (II) such New Backstop Party shall execute a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Restructuring Support Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Commitment Agreement
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares New Common Stock that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Related Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related PurchaserFund, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser Fund and (iii) contain a confirmation by each such Related Purchaser Fund of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 Article 5 as applied to such Related PurchaserFund; provided, however, provided that no such designation pursuant to this Section 2.6(a2.06(a) shall relieve such Commitment Backstop Party from its funding obligations under this Agreement.
(b) Each Commitment Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment only to a Related Fund; provided that (i) any investment fund such Backstop Party and Related Fund agree in a writing addressed to the primary investment advisor to which is Company that such Commitment Related Fund shall purchase such portion of such Backstop Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ’s Backstop Commitment; (ii) one or more special purpose vehicles each Backstop Party confirms in writing its good faith belief that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity all of the Company representations and its Subsidiaries, and warranties in Article 5 are accurate with respect to which such Commitment Party either Related Fund; and (Aiii) has provided such Related Fund executes a joinder agreement substantially in the form attached hereto as Exhibit A (the “Joinder Agreement”) and delivers an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable executed copy thereof to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the PlanCompany; provided, however, provided that no such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable Transfer pursuant to this Section 2.6(b2.06(b) shall relieve such Backstop Party from its funding obligations under this Agreement if such Related Fund fails to fund hereunder.
(c) Each Backstop Party shall have the right to Transfer to any Person that is not an existing Backstop Party or Related Fund (each of the Persons referred to in clauses whom a Transfer is made, a “New Purchaser”) either (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without Commitment; provided that (A) such Transfer shall have been consented to by the prior written consent of Required Backstop Parties and the CompanyCompany (in each case, which such consent shall not be unreasonably withheld, withheld or conditioned or delayed and shall be deemed to have been given after two (it being understood that it would be unreasonable for 2) Business Days following notification in writing to the Company to withhold its consent to any of a proposed Transfer by such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio companyBackstop Party), and (B) such New Purchaser executes a Joinder Agreement and delivers an executed copy thereof to the Company (any Related Fund party as described in Section 2.06(b) and/or New Purchaser as described in this Section 2.06(c)(i) that executes and delivers such Joinder Agreement shall be referred to as a “Permitted Backstop Commitment Transferee”) or (ii) all or any portion of its obligation to fund the transferee has purchase of the financial wherewithal to fulfill its obligations with respect to Unsubscribed Shares (the “Funding Obligation” and, for the avoidance of doubt, which Transfer shall not include the Backstop Commitment Commitment) pursuant to be transferred, as determined in documentation that is reasonably satisfactory to both the Backstop Party effecting such Transfer and the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides ; provided that no Backstop Party effecting a written agreement to the Company under which it (w) confirms the accuracy Transfer of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto Funding Obligation pursuant to a joinder agreement in the form set forth on Exhibit A attached heretothis Section 2.06(c)(ii) shall be relieved, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s released or novated from its obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors until such New Purchaser has actually funded all or any Commitment Party, and shall not create any obligation or liability portion of any Debtor or any other Commitment Party to the purported transfereeFunding Obligation so transferred into the Backstop Escrow Account.
(cd) Each Commitment Backstop Party, severally and not jointly, agrees that it will not not, directly or indirectly, assign or otherwise Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3Sections 2.03, Section 2.6(a2.06(a), and Section 2.6(b) of this Agreement2.06(b), 2.06(c), 7.02, 10.07. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares shares of New Common Stock or any interest therein; provided, however, provided that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Legacy Reserves Inc.)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Except as set forth in Section 2.6(c), each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, Party or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company Commitment or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred Transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section Section 2.6(b), and in such manner manner, as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article Article V as applied to such Ultimate Purchaser Purchaser, (xy) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, and (yz) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the CompanyCompany and the Requisite Commitment Parties, which consent shall not be unreasonably withheld, conditioned or delayed delayed.
(it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (ic) the transferee is another Additionally, each Commitment Party shall have the right to Transfer all or an Affiliate any portion of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferreda Consenting Noteholder or any other entity to whom such Commitment Party transfers its Note Claims in accordance with the Restructuring Support Agreement, as determined in each case, in full compliance with all transfer restrictions set forth in the Company’s reasonable opinion after request by Restructuring Support Agreement, including those contained in Section 4.04 thereof, provided, further, that in accordance with the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii)Restructuring Support Agreement, such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth agrees in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees writing to be bound by the RSA pursuant obligations of such Commitment Party under this Agreement and is determined, after due inquiry and investigation by the Commitment Parties and the Debtors, to a transfer agreement in be reasonably capable of fulfilling such obligations. Upon compliance with this Section 2.6(c), the form set forth on Exhibit B attached hereto)transferring Commitment Party shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations. Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph Section 2.6(c) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(cd) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3Sections 2.3, Section 2.6(a2.6(a), and Section 2.6(b2.6(b) of this Agreementor 2.6(c). After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the shares of New Common Stock or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Bonanza Creek Energy, Inc.)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement[Reserved].
(b) Commitment Parties shall not be entitled to Transfer all or any portion of their Commitments except as expressly provided in this Section 2.6. Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to to: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ; (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesCompany; provided, and with respect to which that such transferring Commitment Party or, in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall either (A) has have provided an the Company with a commercially reasonable and adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, Commitment in form and substance reasonably acceptable to the Company or (B) otherwise remains remain (or in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall become) obligated to fund the Backstop Commitment to be transferred until the consummation of the Plansuch Commitment; provided, however, further that any such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b); or (iii) any other Commitment Party (each of the Persons referred to in clauses (i), (ii) and (ii)iii) above, an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall provide a written agreement instrument to the Company and counsel to the Commitment Parties under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act and the accuracy of the representations set forth in Article V Section 5.8 herein as applied to such Ultimate Purchaser Purchaser, (x) agrees to purchase such the transferred portion of such Commitment Party’s Backstop Commitment, and (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and C (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto“Joinder Agreement”), and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and counsel to the Commitment Parties (at the addresses set forth in Section 10.1), written notice of such Transfer; provided, furtherhowever, that that, except in the case of clause (iii) above, or in the case of a transfer to another Commitment Party’s Affiliated Fund in accordance with the foregoing, no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) [Reserved].
(d) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a2.6(b), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the New Second Lien PIK Toggle Notes or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Designation and Assignment Rights. (a) Other than as expressly set forth in this Section 2.6, no Commitment Party shall be permitted to Transfer its Commitments.
(b) Each Commitment Party shall have the right to designate by written notice to the Company Company, the Subscription Agent and Milbank, no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares Units or 4(a)(2) Backstop Commitment Units that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party (or its Affiliates) or any Subsidiary thereof) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares Units or shares of New Common Stock to be issued in respect of the Put Option Equity Premium 4(a)(2) Backstop Commitment Units to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Additionally, subject to Section 2.6(b2.6(e), no each Commitment Party shall be permitted have the right to Transfer all or any portion of its Backstop Commitments to any creditworthy Related Purchaser, provided, that such Commitment without Party shall (i) provide written notice to the prior written consent Company of such Transfer as far in advance thereof as practicable and (ii) deliver to the Company, which the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit B, executed by such Commitment Party and such Related Purchaser.
(c) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any other Commitment Party or such other Commitment Party’s Related Purchaser (each, an “Existing Commitment Party Purchaser”), provided, that (i) such Existing Commitment Party Purchaser or such Existing Commitment Party Purchaser’s Affiliate or Related Fund shall have been a Commitment Party as of immediately prior to such Transfer and (ii)(1) to the extent such Existing Commitment Party Purchaser is not a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit C-1, executed by such Commitment Party and such Existing Commitment Party Purchaser and (2) to the extent such Existing Commitment Party Purchaser is already a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank an amendment to this Agreement, substantially in the form attached hereto as Exhibit C-2, executed by such Commitment Party and such Existing Commitment Party Purchaser.
(d) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any Person that is not an Existing Commitment Party Purchaser (each of the Persons to whom a Transfer is made, a “New Purchaser”), provided, that (i) such Transfer shall have been consented to by the Requisite Commitment Parties in writing (such consent not to be unreasonably withheld, conditioned or delayed; provided, that the Requisite Commitment Parties shall be deemed to have so consented if they fail to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), (ii) such Transfer shall have been consented to by the Company in writing (such consent not be unreasonably withheld, conditioned or delayed (delayed, it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee New Purchaser has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment Commitments to be transferred; provided, that the Company shall be deemed to have so consented if it fails to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), and (iii) such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as determined in Exhibit D executed by such Commitment Party, such New Purchaser and the Company.
(e) No Commitment Party shall have the right to Transfer all or any portion of its Commitments to the Company or any of the Company’s reasonable opinion after request by Affiliates. A Commitment Party shall have the Company right to Transfer all or any portion of its Commitments to any other Person pursuant to the transferee, and prompt delivery to the Company by the transferee, terms of proof this Agreement whether or not it is making a simultaneous transfer of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy corresponding amount of the representations set forth in Article V as applied Note Claims. For the avoidance of doubt, it is the intent of the Parties that a Transfer of the Commitments pursuant to such transfereethis Section 2.6 will represent a transfer of proportional portions of the Rights Offering Backstop Commitment and the 4(a)(2) Backstop Commitment and that, (x) agrees to purchase such portion accordingly, any Transfer of such Commitment Party’s Rights Offering Backstop CommitmentCommitment or 4(a)(2) Backstop Commitment shall be permitted only if coupled by a proportional Transfer of the other. Except as set forth in the first sentence of Section 2.6(b), (y) agrees no Commitment Party shall have the right to be fully bound byTransfer all or any portion of its Commitments to any other Person following receipt of the Funding Notice pursuant to, and subject toin accordance with, this Agreement as a Section 2.4. Any Commitment Party hereto pursuant seeking to a joinder agreement in Transfer its Commitments to any other Person must provide the form set forth on Exhibit A attached heretoCompany, the Subscription Agent and Milbank with prior written notice of such proposed Transfer no less than three (z3) agrees Complete Business Days prior to be bound by the RSA pursuant to a transfer agreement in date of the form set forth on Exhibit B attached hereto)consummation of such proposed Transfer. Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor or any other Commitment Party or any Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the Common Units or any interest therein; provided, however, .
(f) Any Person that any such Transfer is Transferred a Commitment by a Joinder Commitment Party in compliance with the terms of this Section 2.6 shall be made pursuant a Joinder Commitment Party with respect to an effective registration statement under such Commitment, as applicable, for all purposes herein. Any Person that is Transferred a Commitment by a Senior Commitment Party in compliance with the Securities Act or an exemption from the registration requirements thereunder and pursuant terms of this Section 2.6 shall be a Senior Commitment Party with respect to applicable securities lawssuch Commitment.
Appears in 1 contract
Samples: Backstop Commitment and Equity Investment Agreement (Vanguard Natural Resources, LLC)
Designation and Assignment Rights. (a) Each Equity Commitment Party shall have the right to designate instruct, by written notice to the Company no later than two (2) Business Days prior to the Closing Date Date, that some all or all any portion of (w) the its Direct Investment Shares or Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if anyas applicable, (y) the Rights Offering Shares to be issued pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each caseCommitment, be issued in the name of, and delivered to, to one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) Purchasers upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Equity Commitment Party and each such the applicable Related Purchaser, (ii) specify the number of Direct Investment Shares and Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of each such Related Purchaser Purchaser, and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 made by the applicable Equity Commitment Party under this Agreement as applied to such Related Purchaser; provided, however, provided that no such designation pursuant to this Section 2.6(a2.7(a) shall relieve such any Equity Commitment Party from any of its obligations under this Agreement.
(b) Each Commitment Party Subject to Section 2.7(c), each PE Sponsor shall have the right to Transfer all or any portion of its Backstop (x) Subscription Rights or (y) Equity Commitment, in each case to any other Equity Commitment only to Party or such other Equity Commitment Party’s Related Purchaser (each, an “Existing Equity Commitment Party Purchaser”); provided, that (i) any investment fund the primary investment advisor such Existing Equity Commitment Party Purchaser shall be an Equity Commitment Party or its Related Purchaser as of immediately prior to which is such Commitment PartyTransfer, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such the transferring Equity Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Existing Equity Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer, and (iii) if applicable, such Existing Equity Commitment Party Purchaser shall deliver to the Company a joinder to this Agreement, in a form reasonably acceptable to the Company, pursuant to which such Person agrees to be fully bound by this Agreement and contains a confirmation of the accuracy of the representations made by each Equity Commitment Party under this Agreement as applied to such Person.
(c) Notwithstanding anything to the contrary in this Section 2.7, no PE Sponsor shall be entitled to assign or transfer more than twenty-five percent (25%) of its Equity Commitment to any Person (other than to an Existing Equity Commitment Party Purchaser in accordance with clause (b) or its Related Purchasers) without the prior written consent of the Company.
(d) Each Equity Commitment Party that is not a PE Sponsor shall have the right to Transfer all or any portion of its Rights Offering Equity Commitment to any Person (each a “Rights Offering Commitment Purchaser”); provided, furtherthat (i) the transferring Equity Commitment Party and the Rights Offering Commitment Purchaser shall provide written notice to the Company of such Transfer, that no sale or Transfer (ii) if applicable, the Rights Offering Commitment Purchaser shall deliver to the Company a joinder to this Agreement, pursuant to which the Rights Offering Commitment Purchaser agrees to be fully bound by this Section 2.6(b) shall relieve such Agreement and contains a confirmation of the accuracy of the representations made by each Equity Commitment Party from its under this Agreement as applied to such Rights Offering Commitment Purchaser; (iii) at the same time that such Equity Commitment Party Transfers any Rights Offering Equity Commitment it shall Transfer a corresponding portion of Senior Notes/ALOC Claims to such Rights Offering Commitment Purchaser; (iv) if such obligations are Transferred to an Existing Equity Commitment Party Purchaser, such transferring Equity Commitment Party shall be relieved of such obligations; and (v) if such obligations are Transferred to a Person that is not an Existing Equity Commitment Party, unless otherwise consented to by the Company in writing, such Transfer shall not relieve the transferring Equity Commitment Party of such Transferred obligations under this Agreement, except to the extent such obligations are actually satisfied by the applicable Rights Offering Commitment Purchaser.
(e) Each Equity Commitment Party that is not a PE Sponsor shall have the right to Transfer all or any portion of its Rights Offering Backstop Commitment to any Existing Equity Commitment Party, provided that the transferring Equity Commitment Party and the Backstop Commitment Purchaser shall provide written notice to the Company of such Transfer. Any Transfer permitted under this Section 2.7(e) shall relieve the transferring Equity Commitment Party of such Transferred obligations under this Agreement.
(f) Each Equity Commitment Party that is not a PE Sponsor shall have the right to Transfer all or any portion of its Rights Offering Backstop Commitment to any Person that is not an Existing Equity Commitment Party Purchaser (each a “Backstop Commitment Purchaser”); provided, that (i) the transferring Equity Commitment Party and the Backstop Commitment Purchaser shall provide written notice to the Company of such Transfer, (ii) if applicable, the Backstop Commitment Purchaser shall deliver to the Company a joinder to this Agreement, pursuant to which the Backstop Commitment Purchaser agrees to be fully bound by this Agreement and contains a confirmation of the accuracy of the representations made by each Equity Commitment Party under this Agreement as applied to such Backstop Commitment Purchaser, and (iii) unless otherwise consented to by the Company in writing, such Transfer shall not relieve the transferring Equity Commitment Party of its Rights Offering Backstop Commitment under this Agreement, except to the extent such obligations are actually satisfied by the applicable Backstop Commitment Purchaser.
(g) Other than as expressly set forth in this Section 2.6(b)2.7, no Equity Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned Subscription Rights or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Equity Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Company or any Equity Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor other Equity Commitment Party or any other Commitment Party Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing DateClosing, nothing in this Agreement shall limit or restrict in any way the ability of any Equity Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Hertz Corp)
Designation and Assignment Rights. (a) Each Equity Commitment Party shall have the right to designate instruct, by written notice to the Company no later than two (2) Business Days prior to the Closing Date Date, that some all or all any portion of (w) the its Direct Investment Shares or Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if anyas applicable, (y) the Rights Offering Shares to be issued pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each caseCommitment, be issued in the name of, and delivered to, to one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) Purchasers upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Equity Commitment Party and each such the applicable Related Purchaser, (ii) specify the number of Direct Investment Shares and Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of each such Related Purchaser Purchaser, and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 made by the applicable Equity Commitment Party under this Agreement as applied to such Related Purchaser; provided, however, provided that no such designation pursuant to this Section 2.6(a2.5(a) shall relieve such any Equity Commitment Party from any of its obligations under this Agreement.
(b) Each Commitment Party Subject to Section 2.5(c), each Common Equity Plan Sponsor shall have the right to Transfer all or any portion of its Backstop Equity Commitment, in each case to any other Equity Commitment only to Party or such other Equity Commitment Party’s Related Purchaser (each, an “Existing Equity Commitment Party Purchaser”) or any other Person (other than a Prohibited Transferee (as defined in the Preferred Stock Term Sheet)); provided that (i) any investment fund the primary investment advisor such Existing Equity Commitment Party Purchaser shall be an Equity Commitment Party or its Related Purchaser as of immediately prior to which is such Commitment PartyTransfer, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such the transferring Equity Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Existing Equity Commitment Party either (A) has provided an adequate equity support letter Purchaser or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser Person shall have duly executed and delivered to the Company written notice of such Transfer; provided, furtherand (iii) such Existing Equity Commitment Party Purchaser or such other Person shall deliver to the Company a joinder to this Agreement, that in a form reasonably acceptable to the Company, pursuant to which such Person agrees to be fully bound by this Agreement (if it is not already so fully bound) and contains a confirmation of the accuracy of the representations made by each Equity Commitment Party under this Agreement as applied to such Person. Notwithstanding anything to the contrary, any Transfer under this Section 2.5(b) to a Person who is not a Plan Sponsor, unless otherwise consented to by the Company in writing, shall not relieve the applicable Common Equity Plan Sponsor of such Transferred obligations under this Agreement until such amount is funded by the transferee on or prior to the Closing Date.
(c) Notwithstanding anything to the contrary in this Section 2.5, no sale Common Equity Plan Sponsor shall be entitled to assign or Transfer (x) more than twenty-five percent (25%) of its Equity Commitments (disregarding for this purpose any Direct Investment Preferred Commitments) or (y) any of its Direct Investment Preferred Commitments, in either case to any Person(s) (other than to another Common Equity Plan Sponsor or its Related Purchasers) without the prior written consent of the Company and the Preferred Equity Plan Sponsor. Notwithstanding the foregoing, in no event shall the aggregate Equity Commitments in respect of Common Stock held, directly or indirectly, by the Common Equity Plan Sponsors be less than 42% of the Common Stock issued or to be issued as of the Closing.
(d) (i) Each Equity Commitment Party that is not a Common Equity Plan Sponsor shall have the right to Transfer all or any portion of its Equity Commitment to any Existing Equity Commitment Party Purchaser or other Person (other than a Prohibited Transferee (as defined in the Preferred Stock Term Sheet)), provided that (A) the Transferring Equity Commitment Party and such Person shall provide written notice to the Company of such Transfer and (B) such Existing Equity Commitment Party Purchaser or other Person shall deliver to the Company a joinder to this Agreement, in a form reasonably acceptable to the Company, pursuant to which such Existing Equity Commitment Party Purchaser or other Person agrees to be fully bound by this Agreement (if it is not already so fully bound) and contains a confirmation of the accuracy of the representations made by each Equity Commitment Party under this Agreement as applied to such Person. Any Transfer under this Section 2.6(b2.5(d)(i) to a Person who is not a Plan Sponsor, unless otherwise consented to by the Company in writing, shall not relieve such the applicable Equity Commitment Party from of such Transferred obligations until such amount is funded by the transferee on or prior to the Closing Date. (ii) Each Equity Commitment Party that is not a Common Equity Plan Sponsor shall have the right to Transfer all or any portion of its Rights Offering Equity Commitment to any Person (each a “Rights Offering Commitment Purchaser”); provided that (A) the transferring Equity Commitment Party and the Rights Offering Commitment Purchaser shall provide written notice to the Company of such Transfer, (B) the Rights Offering Commitment Purchaser shall deliver to the Company a joinder to this Agreement, pursuant to which the Rights Offering Commitment Purchaser agrees to be fully bound by this Agreement (if it is not already so fully bound) and contains a confirmation of the accuracy of the representations made by each Equity Commitment Party under this Agreement as applied to such Rights Offering Commitment Purchaser; and (C) unless otherwise consented to by the Company in writing, such Transfer shall not relieve the transferring Equity Commitment Party of such Transferred obligations under this Agreement, except to the extent such obligations are actually satisfied by the applicable Rights Offering Commitment Purchaser.
(e) Each Equity Commitment Party that is not a Common Equity Plan Sponsor shall have the right to Transfer all or any portion of its Rights Offering Backstop Commitment to any Common Equity Plan Sponsor; provided that the transferring Equity Commitment Party shall provide written notice to the Company of such Transfer. Any Transfer permitted under this Section 2.5(e) to a Common Equity Plan Sponsor shall not relieve the transferring Equity Commitment Party of such Transferred obligations under this Agreement without the prior written consent of the Company, except to the extent such obligations are actually satisfied by the applicable transferee Common Equity Plan Sponsor.
(f) Other than as expressly set forth in this Section 2.6(b)2.5, no Equity Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned Subscription Rights or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Equity Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Company or any Equity Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor other Equity Commitment Party or any other Commitment Party Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing DateClosing, nothing in this Agreement shall limit or restrict in any way the ability of any Equity Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Shares or any interest therein; provided, however, provided that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws and in accordance with the New Registration Rights Agreement.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Hertz Corp)
Designation and Assignment Rights. (a) Each Commitment Party Closing Backstop Participant shall have the right to designate by written notice to the Company no later than two (2) Business Days (or as the Parties otherwise agree) prior to the Closing Date that some or all of (w) the Unsubscribed Rights Offering Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party Backstop Participant or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by each such Commitment Party Backstop Participant and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser upon exercise of the applicable Call Option or Put Option and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the applicable Backstop Participant representations and warranties set forth in Section 5.7 through Section 5.11 as Article V applied to such Related Purchaser; provided, however, provided that no such designation pursuant to this Section 2.6(a2.9(a) shall relieve such Commitment Party Backstop Participant from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer Closing Backstop Participant may sell, transfer and assign all or any portion of its Backstop Commitment only rights and obligations hereof, to (each, a “Transferee”): (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ; (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party Closing Backstop Participant and its Affiliated Funds, created for the purpose of holding such Backstop Commitment rights and obligations under this Agreement or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which such Commitment Party Closing Backstop Participant either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company obligations under this Agreement or (B) otherwise remains obligated to fund the Backstop Commitment obligations under this Agreement to be sold, transferred or assigned until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party Closing Backstop Participant or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment PartyBackstop Participant) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or this clause (ii) of this Section 2.6(b), and in such manner manner, as such Commitment PartyClosing Backstop Participant’s obligations under this Agreement is transferable; or (iii) any other entity to whom such Closing Backstop Commitment is transferable pursuant Participant transfers its Covered Interests in accordance with the PSA in full compliance with all transfer restrictions set forth in the PSA, provided, that in accordance with the PSA, such transferee agrees in writing to this Section 2.6(b) (be bound by the obligations of such Closing Backstop Participant under the terms hereof and each of the Persons referred to Closing Backstop Participants and the Company have agreed in clauses writing, after reasonable inquiry and investigation, that such transferee is reasonably capable of fulfilling such obligations; provided, further, that (A) in each of cases (i), (ii) and (iiiii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser such Transferee provides a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser Transferee, (xy) agrees to purchase assume such portion of such Commitment PartyClosing Backstop Participant’s Backstop Commitmentrights and obligations under this Agreement, and (yz) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement Closing Backstop Participant, (B) in the form set forth on Exhibit A attached hereto, and each of cases (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(bi), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect and (iii), such Transferee becomes a party to the Backstop Commitment to be transferred, as determined Escrow Agreement and (C) in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, each of proof of such financial wherewithal, and, in the case of clauses cases (i) and (ii), no such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to sale, transfer or assignment shall relieve such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s Participant from its obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeterms hereof.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Key Energy Services Inc)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company MPM no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company MPM of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company MPM and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each In addition to the Transfers required by Section 6.7, each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, Party or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company Commitment or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred Transferred until the consummation of the Plan; provided, however, provided that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner manner, as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser Purchaser, (xy) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, and (yz) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b)) or as required by Section 6.7, no Commitment Party shall be permitted to Transfer its Backstop Commitment. For the avoidance of doubt, no Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeMomentive Performance Materials Holdings LLC.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section Sections 2.3, Section 2.6(a), and Section 2.6(b) of this Agreementand 6.7. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the shares of Top HoldCo Common Stock or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws. For the avoidance of doubt, New Common Stock may only be Transferred to Top HoldCo in exchange for Top HoldCo Common Stock, which Transfer shall occur automatically pursuant to the Internal Reorganization.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Momentive Performance Materials Inc.)
Designation and Assignment Rights. (a) Other than as expressly set forth in this Section 2.6, no Commitment Party shall be permitted to Transfer its Commitments.
(b) Each Commitment Party shall have the right to designate by written notice to the Company Company, the Subscription Agent and Milbank, no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares Units or 4(a)(2) Backstop Commitment Units that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party (or its Affiliates) or any Subsidiary thereof) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares Units or shares of New Common Stock to be issued in respect of the Put Option Equity Premium 4(a)(2) Backstop Commitment Units to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Additionally, subject to Section 2.6(b2.6(e), no each Commitment Party shall be permitted have the right to Transfer all or any portion of its Backstop Commitments to any creditworthy Related Purchaser, provided, that such Commitment without Party shall (i) provide written notice to the prior written consent Company of such Transfer as far in advance thereof as practicable and (ii) deliver to the Company, which the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit B, executed by such Commitment Party and such Related Purchaser.
(c) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any other Commitment Party or such other Commitment Party’s Related Purchaser (each, an “Existing Commitment Party Purchaser”), provided, that (i) such Existing Commitment Party Purchaser or such Existing Commitment Party Purchaser’s Affiliate or Related Fund shall have been a Commitment Party as of immediately prior to such Transfer and (ii)(1) to the extent such Existing Commitment Party Purchaser is not a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit C-1, executed by such Commitment Party and such Existing Commitment Party Purchaser and (2) to the extent such Existing Commitment Party Purchaser is already a Commitment Party hereunder, such Commitment Party shall deliver
(d) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any Person that is not an Existing Commitment Party Purchaser (each of the Persons to whom a Transfer is made, a “New Purchaser”), provided, that (i) such Transfer shall have been consented to by the Requisite Commitment Parties in writing (such consent not to be unreasonably withheld, conditioned or delayed; provided, that the Requisite Commitment Parties shall be deemed to have so consented if they fail to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), (ii) such Transfer shall have been consented to by the Company in writing (such consent not be unreasonably withheld, conditioned or delayed (delayed, it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee New Purchaser has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment Commitments to be transferred; provided, that the Company shall be deemed to have so consented if it fails to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), and (iii) such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as determined in Exhibit D executed by such Commitment Party, such New Purchaser and the Company.
(e) No Commitment Party shall have the right to Transfer all or any portion of its Commitments to the Company or any of the Company’s reasonable opinion after request by Affiliates. A Commitment Party shall have the Company right to Transfer all or any portion of its Commitments to any other Person pursuant to the transferee, and prompt delivery to the Company by the transferee, terms of proof this Agreement whether or not it is making a simultaneous transfer of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy corresponding amount of the representations set forth in Article V as applied Note Claims. For the avoidance of doubt, it is the intent of the Parties that a Transfer of the Commitments pursuant to such transfereethis Section 2.6 will represent a transfer of proportional portions of the Rights Offering Backstop Commitment and the 4(a)(2) Backstop Commitment and that, (x) agrees to purchase such portion accordingly, any Transfer of such Commitment Party’s Rights Offering Backstop CommitmentCommitment or 4(a)(2) Backstop Commitment shall be permitted only if coupled by a proportional Transfer of the other. Except as set forth in the first sentence of Section 2.6(b), (y) agrees no Commitment Party shall have the right to be fully bound byTransfer all or any portion of its Commitments to any other Person following receipt of the Funding Notice pursuant to, and subject toin accordance with, this Agreement as a Section 2.4. Any Commitment Party hereto pursuant seeking to a joinder agreement in Transfer its Commitments to any other Person must provide the form set forth on Exhibit A attached heretoCompany, the Subscription Agent and Milbank with prior written notice of such proposed Transfer no less than three (z3) agrees Complete Business Days prior to be bound by the RSA pursuant to a transfer agreement in date of the form set forth on Exhibit B attached hereto)consummation of such proposed Transfer. Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor or any other Commitment Party or any Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the Common Units or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Commitment and Equity Investment Agreement (Vanguard Natural Resources, Inc.)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares shares of Common Stock that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each A Commitment Party shall not be entitled to Transfer all or any portion of its Commitment except as expressly provided in this Section 2.6(b) or Section 2.6(c). A Commitment Party shall have the right to Transfer all or any portion of its Backstop the Commitment only to (i) any investment fund the primary investment advisor to which is an Affiliated Fund of such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Party or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesCommitment, and with respect to which provided, that such Commitment Party either (A) has shall have provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or and (B) otherwise remains shall remain fully obligated to fund the Backstop Commitment to be transferred until the consummation of the PlanCommitment; provided, however, further that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall have provided a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article V hereof as applied to such Ultimate Purchaser Purchaser, (xy) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, Commitment and (yz) agrees to be fully bound by, and subject to, this Agreement as a an Additional Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring such Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company (at the address set forth in Section 10.1) written notice of such Transfer; provided, furtherhowever, that no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from any of its obligations under this Agreement. Other than as set forth in this Section 2.6(b) and Section 2.6(c), no a Commitment Party shall not be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed delayed.
(it being understood c) In addition to Transfers pursuant to Section 2.6(b), a Commitment Party shall have the right to Transfer, directly or indirectly, all or any portion of its Commitment to any other Person; provided, that it would be unreasonable for such transferee and such Commitment Party shall have duly executed and delivered to the Company written notice of such Transfer in substantially the form attached as Exhibit B hereto, and the Company shall have delivered countersigned copies of such notice to withhold its such transferee and the Commitment Parties (at the address set forth in Section 10.1) providing the Company’s written consent to any such Transfer if Transfer, and (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to any Transfer of the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the a single transferee, and prompt delivery to the Company by the transfereeamount of such Commitment is no less than 10%, of proof of such financial wherewithal, and, in the case of clauses aggregate Commitment (ithe “Aggregate Commitment Percentage”) and (ii)) with respect to any transferee, such transferee provides a written agrees, pursuant to an agreement in form and substance reasonably acceptable to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transfereea “Joinder Agreement”), (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant obligations of such Commitment Party under this Agreement. Upon compliance with this Section 2.6(c), a Commitment Party shall be deemed to a transfer agreement in relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the form set forth on Exhibit B attached hereto)extent of such transferred rights and obligations, and the transferee shall become an Additional Commitment Party and be fully bound as an Additional Commitment Party hereunder for all purposes of this Agreement. Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph Section 2.6(c) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any the Commitment PartyParties, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(cd) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreementor Section 2.6(c), as applicable. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any a Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the Common Stock or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Tuesday Morning Corp/De)
Designation and Assignment Rights. (a) No Backstop Party shall be entitled to Transfer all or any portion of its Backstop Commitment except as expressly provided in this Section 2.6. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Backstop Party (or any permitted transferee thereof) to Transfer any of the Common Shares or any interest therein; provided, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities Laws. Notwithstanding anything in this Agreement to the contrary, this Agreement does not limit or restrict the Transfer of any Company Claims with respect to the Debtors and nothing in this Agreement shall restrict the ability of a Backstop Party to Transfer any Company Claims (including the associated Subscription Rights) in compliance with Section 8 of the Restructuring Support Agreement, and any such Transfer shall not impair or otherwise affect the rights and obligations of such Backstop Party under this Agreement or, for the avoidance of doubt, result in any change to such Backstop Party’s Backstop Commitment Percentage.
(b) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares, Direct Investment Shares and Put Option Premium Shares that it is obligated or has the right to receive hereunder (including any Available Shares that such Backstop Party has agreed to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant in addition to its exercise of the Subscription Rights, or (zBackstop Commitment as a Replacing Backstop Party) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Direct Investment Shares or shares of New Common Stock to be issued in respect of the and Put Option Equity Premium Shares to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.4 through Section 5.11 5.9, as applied to if such Related PurchaserPurchaser was a Backstop Party; provided, however, that no such designation pursuant to this Section 2.6(a2.6(b) shall relieve such Commitment Backstop Party from its obligations under this Agreement.
(bc) Each Commitment Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund an Affiliated Fund of the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) transferring Backstop Party or (ii) one another Backstop Party or more special purpose vehicles an Affiliated Fund thereof without the prior written consent of the Company or any other Backstop Party provided, that are wholly-owned by one as a precondition to any such Transfer (i) such transferee, if not already a Backstop Party, shall agree to be fully bound by, and subject to, this Agreement as a Backstop Party hereto and shall execute and deliver a joinder agreement in substantially the form attached as Exhibit A hereto or more otherwise in form and substance reasonably acceptable to the Company (a “Joinder Agreement”) and (ii) such transferee, if not already a party to the Restructuring Support Agreement, shall execute a joinder to the Restructuring Support Agreement. The parties agreeing to such Transfer shall provide prompt written notice thereof to the Company and the other Backstop Parties. Any such Transfer shall relieve the transferring Backstop Party from all of its rights and obligations under this Agreement with respect to such transferred Backstop Commitment if (i) to the extent such transferred Backstop Commitment is to an existing Backstop Party, after giving effect to such Transfer, the aggregate Backstop Commitments of the transferee Backstop Party and all of its Affiliated Funds, created for the purpose taken as a whole, does not exceed 125% of holding such aggregate Backstop Commitment or holding debt or equity Commitments in effect as of the Company and its Subsidiaries, and with respect to which such Commitment date of this Agreement; (ii) the transferring Backstop Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s guarantee, in an amount sufficient to satisfy the transferred Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains fully obligated to fund such Backstop Commitment; or (iii) the Company provides prior written consent of such Transfer, not to be unreasonably withheld, conditioned or delayed.
(i) Subject to Section 2.6(d)(ii), if a Backstop Party desires to Transfer (a “Transferring Backstop Party”) all or any portion of its Backstop Commitment to a Person other than a Backstop Party as of such date (a “New Backstop Party”), such Transferring Backstop Party shall first provide written notice (an “Offering Notice”) to the other Backstop Parties party to this Agreement as of such date (the “Non-Transferring Backstop Parties”) and the Company of such Transfer, which Offering Notice shall state the amount of the Backstop Commitment proposed to be transferred until Transferred by the consummation of Transferring Backstop Party (the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s “Offered Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate PurchaserCommitment”), the consideration offered by the New Backstop Party and thatthe other material terms and conditions of the Transfer, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof. The Offering Notice shall constitute the Transferring Backstop Party’s offer to Transfer the Offered Backstop Commitment to the Non-Transferring Backstop Parties, which offer shall be irrevocable for ten (10) Business Days (the “ROFO Notice Period”). Upon receipt of the Offering Notice, each Non-Transferring Backstop Party may elect during the ROFO Notice Period, in each caseits sole discretion, (1) to assume, in whole or in part, the Ultimate Purchaser provides a written agreement to Offered Backstop Commitment on the Company under which it (w) confirms same terms and for the accuracy of the representations same consideration as set forth in Article V as applied the Offering Notice by delivering a written notice (an “Offer Acceptance Notice”) to such Ultimate Purchaser (x) agrees the Transferring Backstop Party, the other Non-Transferring Backstop Parties and the Company stating that it offers to purchase such portion of the Offered Backstop Commitment on the terms specified in the Offering Notice. Any Offer Acceptance Notice shall be binding upon delivery and irrevocable by the applicable Non-Transferring Backstop Party. If more than one Non-Transferring Backstop Party (each, a “Purchasing Backstop Party”) timely delivers an Offer Acceptance Notice and the aggregate amount of Backstop Commitments to be purchased pursuant to such Commitment Party’s Offer Acceptance Notices is greater than the amount of the Offered Backstop Commitment, each Purchasing Backstop Party shall be allocated a portion of the Offered Backstop Commitment based upon its applicable Backstop Commitment Percentage as of the date of the Offering Notice as compared to the Backstop Commitment Percentages of all of the Purchasing Backstop Parties, unless otherwise agreed to by the Non-Transferring Backstop Parties. To the extent any portion of the Offered Backstop Commitment is not assumed by the Non-Transferring Backstop Parties, the Transferring Backstop Party shall have a thirty (y30) agrees calendar day period in which to agree a Transfer of such portion to a New Backstop Party on substantially the same (or more favorable as to the Transferring Backstop Party) terms and conditions as were set forth in the Offering Notice. If the Transferring Backstop Party does not agree such a Transfer in accordance with the foregoing time limitations, then the right of the Transferring Backstop Party to agree such Transfer pursuant to this Section 2.6(d) shall terminate and the Transferring Backstop Party shall again comply with the procedures set forth in this Section 2.6(d) with respect to any proposed Transfer of its Backstop Commitments to a new Backstop Party.
(ii) Notwithstanding anything to the contrary set forth in Section 2.6(d)(i), a Transferring Backstop Party may Transfer, in one or more Transfers, to a New Backstop Party up to an aggregate of ten percent (10%) of the Backstop Commitments of such Transferring Backstop Party and all of its Affiliated Funds, taken as a whole, in effect as of the date hereof, without providing an Offering Notice or otherwise complying with the procedures in Section 2.6(d)(i).
(iii) If a New Backstop Party assumes any Backstop Commitments in compliance with this Section 2.6(d), such Transfer shall relieve the Transferring Backstop Party from all of its rights and obligations under this Agreement with respect to such transferred Backstop Commitment if (A) to the extent such transferred Backstop Commitment is to a Non-Transferring Backstop Party, on the same conditions as set forth in Section 2.6(c), (B) the transferring Backstop Party (1) has provided an adequate equity support letter or a guarantee, in an amount sufficient to satisfy the transferred Backstop Commitment, in form and substance reasonably acceptable to the Company or (2) remains fully obligated to fund such Backstop Commitment; or (C) the Company provides prior written consent of such Transfer, not to be unreasonably withheld, conditioned or delayed. As preconditions to any Transfer of a Backstop Commitment to a New Backstop Party pursuant to this Section 2.6(d): (I) such New Backstop Party shall agree to be fully bound by, and subject to, this Agreement as a Commitment Backstop Party hereto pursuant to and shall execute and deliver a Joinder Agreement and (II) such New Backstop Party shall execute a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; providedRestructuring Support Agreement.
(e) Notwithstanding the foregoing, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment each Backstop Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted may elect to Transfer all or any portion of its Backstop Commitment to a New Backstop Party without following the procedures in Section 2.6(d) and without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned Company or delayed (it being understood that it would be unreasonable for any other Backstop Party if such transferring Backstop Party elects to remain fully obligated to fund its Backstop Commitment in the Company to withhold its consent event such New Backstop Party defaults in the funding. As preconditions to any such Transfer if Transfer: (i) the transferee is another Commitment such New Backstop Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees shall agree to be fully bound by, and subject to, this Agreement as a Commitment Backstop Party hereto pursuant to and shall execute and deliver a Joinder Agreement and (ii) such New Backstop Party shall execute a joinder agreement to the Restructuring Support Agreement. Such Joinder Agreement shall indicate that the Transferring Backstop Party remains fully obligated to fund the Transferred Backstop Commitment in the form set forth on Exhibit A attached heretoevent that the New Backstop Party defaults under any of its obligations hereunder. The parties agreeing to such Transfer shall provide prompt written notice thereof to the Company and the other Backstop Parties. Upon receipt of such written notice, the Company shall revise the Backstop Commitment Schedule to reflect such Transfer and (z) agrees to be bound by also indicate that the RSA pursuant to a transfer agreement Transferring Backstop Party remains obligated in the form set forth on Exhibit B attached hereto)event the New Backstop Party defaults in its obligations hereunder. Any Transfer of a Commitment Party’s For all other purposes hereunder, the New Backstop Party shall have the rights and obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effectassociated with the transferred Backstop Commitment, regardless of any prior notice provided including with respect to the Debtors or any Commitment Party, Put Option Premium and shall not create any obligation or liability the determination of any Debtor or any other Commitment Party to the purported transfereeRequired Backstop Parties.
(cf) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at Upon the consummation of any time prior to the Closing Date or the earlier termination Transfers of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than Backstop Commitments in accordance with Section 2.32.6(c), Section 2.6(a2.6(d) or Section 2.6(e), and Section 2.6(b) of this Agreementthe Company shall revise the Backstop Commitment Schedule to reflect such Transfer. After Notwithstanding anything to the Closing Date, nothing contrary contained in this Agreement shall limit Section 2.6, any Transfer of a Backstop Commitment under Section 2.6(c), Section 2.6(d) or restrict Section 2.6(e) must include the associated Direct Investment Rights, which may not be transferred, in any way the ability of any Commitment Party (whole or any permitted transferee thereof) to Transfer any of its Unsubscribed Sharesin part, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption separate from the registration requirements thereunder and pursuant to applicable securities lawsBackstop Commitment.
Appears in 1 contract
Samples: Restructuring Support Agreement (Chesapeake Energy Corp)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Commitment Parties shall not be entitled to Transfer all or any portion of their Backstop Commitments except as expressly provided in this Section 2.6(b) or Section 2.6(c). Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund an Affiliated Fund of the primary investment advisor to which is such transferring Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Party or (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party Parties and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which provided, that such Commitment Party either (A) has shall have provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains shall remain fully obligated to fund the such Backstop Commitment to be transferred until the consummation of the PlanCommitment; provided, however, further that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Backstop Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall have provided a written agreement to the Company under which it (wx) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser Purchaser, (xy) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, Commitment and (yz) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company Company, Milbank and/or O’Melveny, as applicable (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, furtherhowever, that no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under this Agreement. Other than as set forth in this Section 2.6(b) and Section 2.6(c), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed delayed.
(it being understood c) In addition to Transfers pursuant to Section 2.6(b), each Commitment Party shall have the right to Transfer, directly or indirectly, all or any portion of its Backstop Commitment to any other Person; provided, that it would be unreasonable for such transferee and the transferring Commitment Party shall have duly executed and delivered to the Company to withhold its consent to any written notice of such Transfer if in substantially the form attached as Exhibit C hereto, and the Company shall have delivered countersigned copies of such notice to such transferee and the transferring Commitment Party and to Milbank and/or O’Melveny (at the addresses set forth in Section 10.1), and (i) with respect any Transfer of a Backstop Commitment to a single transferee, the transferee amount of such Backstop Commitment is another no less than (a) 0.2%, as compared to the aggregate Backstop Commitment Party or an Affiliate of another all Commitment Party Parties (other than any portfolio companythe “Aggregate Backstop Commitment Percentage”), or (iib) the transferee has the financial wherewithal to fulfill its obligations with respect to all of the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithalCommitment Party or the Backstop Commitment of any fund or account on behalf of which such Commitment Party is acting (if such Commitment Party, and, in fund or account holds a Backstop Commitment representing less than 0.2% of the case Aggregate Backstop Commitment Percentage of clauses (iall Commitment Parties) and (ii)) with respect to any transferee that is not a Commitment Party, such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transfereeagrees, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder an agreement in substantially the form set forth on attached as Exhibit A attached heretoD hereto or otherwise in form and substance reasonably acceptable to the Company (a “Joinder Agreement”), and (z) agrees to be bound by the RSA obligations of such Commitment Party under this Agreement and (y) pursuant to a transfer an agreement in substantially the form set forth on attached as Exhibit B attached E hereto, to be bound by the obligations under the Restructuring Support Agreement with respect to all Notes held by such transferee after giving effect to such Transfer, and provided, further, that (except with respect to a Transfer to an Initial Commitment Party) the Company, acting in good faith, shall have determined, in its reasonable discretion, after due inquiry and investigation, that such transferee is reasonably capable of fulfilling such obligations, or, absent such a determination, the proposed transferee shall have deposited with an agent of the Company or into an escrow account under arrangements satisfactory to the Company funds sufficient, in the reasonable determination of the Company, to satisfy such proposed transferee’s Backstop Commitment. Upon compliance with this Section 2.6(c), the transferring Commitment Party shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under this Agreement to the extent of such transferred rights and obligations, and the transferee shall become an Additional Commitment Party and be fully bound as a Commitment Party hereunder for all purposes of this Agreement. Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph Section 2.6(c) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee. Upon the effectiveness of any Transfer of a Backstop Commitment pursuant to this Section 2.6(c), the Company shall update Schedule 1A or Schedule 1B, as applicable, to reflect such Transfer, and such updates shall not constitute an amendment to this Agreement or otherwise be subject to any provision of this Agreement that applies to amendments of this Agreement.
(cd) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreementor Section 2.6(c), as applicable. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Common Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall prohibit or restrict the ability of any Commitment Party to Transfer its Notes at any time to any Person; provided, however, any Transfer of Notes by a Commitment Party shall be in accordance with the terms of the Restructuring Support Agreement.
Appears in 1 contract
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the its Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Related Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related PurchaserFund, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser Fund and (iii) contain a confirmation by each such Related Purchaser Fund of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.06 through Section 5.11 5.09 as applied to such Related PurchaserFund; provided, however, provided that no such designation pursuant to this Section 2.6(a2.06(a) shall relieve such Commitment Backstop Party from its obligations under this Agreement.
(b) Each Commitment Backstop Party shall have the right to Transfer sell, transfer and assign all or any portion of its Backstop Commitment only to a Related Fund; provided that: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Backstop Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or Related Fund agree in a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable writing addressed to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle Related Fund shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Backstop Party’s Backstop Commitment, ; (yii) agrees each Backstop Party confirms in writing its good faith belief that all of the representations and warranties in Article 5 are accurate with respect to be fully bound by, such Related Fund; and subject to, this Agreement as a Commitment Party hereto pursuant to (iii) such Related Fund executes a joinder agreement substantially in the form set forth on attached hereto as Exhibit A attached hereto, (the “Joinder Agreement”) and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly delivers an executed and delivered copy thereof to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant (a Related Fund party to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party a Joinder Agreement shall be permitted referred to Transfer all or any portion of its as a “Permitted Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio companyTransferee”), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Backstop Party, severally and not jointly, agrees that it will not Transfernot, directly or indirectly, assign or otherwise transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3Sections 2.03, Section 2.6(a2.06(a), and Section 2.6(b) 2.06(b), 6.08, 6.09, 7.02, 10.07 or any other provision of this AgreementAgreement which expressly permits such assignment or transfer. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares shares of New Common Stock or any interest therein; provided, however, provided that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Samples: Backstop Commitment Agreement (C&J Energy Services Ltd.)
Designation and Assignment Rights. (a) Each Commitment Equity Backstop Party shall have the right to designate require, by written notice to the Company no later than two (2) Business Days prior to the Closing Date Date, that some all or all any portion of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, its (x) the Available Shares, if any, Subscription Rights or (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity PremiumBackstop Commitment, in each case, case be issued in the name of, and delivered to, to one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofPurchasers, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Equity Backstop Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Convertible Series A Preferred Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of each such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 made by each Equity Backstop Party under this Agreement as applied to such Related Purchaser; provided, however, provided that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Equity Backstop Party from any of its obligations under this Agreement.
(b) Each Commitment Equity Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (ix) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Subscription Rights or (iiy) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Rights Offering Backstop Commitment, in each case to any other Equity Backstop Party or a creditworthy Related Purchaser to such other Equity Backstop Party (each, an “Existing Equity Backstop Party Purchaser”); provided, that (i) such Existing Equity Backstop Party Purchaser shall have been an Equity Backstop Party or its Related Purchaser as of immediately prior to such Transfer and (ii) if applicable, such Existing Equity Backstop Party Purchaser shall deliver to the Company a joinder to this Agreement, in a form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund and the Backstop Commitment to be transferred until the consummation of the Plan; provided, howeverRequisite Consenting Parties, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company contains a confirmation of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V made by each Equity Backstop Party under this Agreement as applied to such Ultimate Purchaser Person.
(xc) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as expressly set forth in this Section 2.6(b)2.6,, no Commitment Equity Backstop Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned Subscription Rights or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Rights Offering Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Company or any Commitment Equity Backstop Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor other Equity Backstop Party or any other Commitment Party Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, subject to any transfer restrictions under U.S. federal and state securities laws which may be applicable, including the restrictions described in Section 6.3,, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Equity Backstop Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Convertible Series A Preferred Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Equity Backstop Commitment Agreement (Garrett Motion Inc.)
Designation and Assignment Rights. (a) Each Commitment Equity Backstop Party shall have the right to designate require, by written notice to the Company no later than two (2) Business Days prior to the Closing Date Date, that some all or all any portion of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, its (x) the Available Shares, if anySubscription Rights, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, Backstop Commitment or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity PremiumBackstop Commitment Fee Allocation, in each case, case be issued in the name of, and delivered to, to one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofPurchasers, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Equity Backstop Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Convertible Series A Preferred Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of each such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 made by each Equity Backstop Party under this Agreement as applied to such Related Purchaser; provided, however, provided that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Equity Backstop Party from any of its obligations under this Agreement.
(b) Each Commitment Equity Backstop Party shall have the right to Transfer all or any portion of its (x) Subscription Rights, (y) Rights Offering Backstop Commitment only or (z) Backstop Commitment Fee Allocation, in each case to any other Equity Backstop Party or a creditworthy Related Purchaser to such other Equity Backstop Party (each, an “Existing Equity Backstop Party Purchaser”); provided, that (i) any investment fund the primary investment advisor such Existing Equity Backstop Party Purchaser shall have been an Equity Backstop Party or its Related Purchaser as of immediately prior to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or Transfer and (ii) one or more special purpose vehicles that are wholly-owned by one or more of if applicable, such Commitment Existing Equity Backstop Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of Purchaser shall deliver to the Company and its Subsidiaries, and with respect a joinder to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitmentthis Agreement, in a form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund and the Requisite Equity Backstop Commitment to be transferred until the consummation of the Plan; provided, howeverParties, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company contains a confirmation of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V made by each Equity Backstop Party under this Agreement as applied to such Ultimate Purchaser Person.
(xc) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as expressly set forth in this Section 2.6(b)2.6, no Commitment Equity Backstop Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned Subscription Rights or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Rights Offering Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Company or any Commitment Equity Backstop Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor other Equity Backstop Party or any other Commitment Party Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, subject to any transfer restrictions under U.S. federal and state securities laws which may be applicable, including the restrictions described in Section 6.3, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Equity Backstop Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the Convertible Series A Preferred Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Replacement Equity Backstop Commitment Agreement (Garrett Motion Inc.)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, 20 that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms 21 the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Parker Drilling Co /De/)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 through Section 5.11 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement[Reserved].
(b) Commitment Parties shall not be entitled to Transfer all or any portion of their Commitments except as expressly provided in this Section 2.6. Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to to: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ; (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesCompany; provided, and with respect to which that such transferring Commitment Party or, in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall either (A) has have provided an the Company with a commercially reasonable and adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, Commitment in form and substance reasonably acceptable to the Company or (B) otherwise remains remain (or in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall become) obligated to fund the Backstop Commitment to be transferred until the consummation of the Plansuch Commitment; provided, however, further that any such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b); or (iii) any other Commitment Party (each of the Persons referred to in clauses (i), (ii) and (ii)iii) above, an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall provide a written agreement instrument to the Company and counsel to the Commitment Parties under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act and the accuracy of the representations set forth in Article V Section 5.8 herein as applied to such Ultimate Purchaser Purchaser, (x) agrees to purchase such the transferred portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, C (the “Joinder Agreement”) and (z) agrees to be bound by the RSA Plan Support Agreement pursuant to a transfer agreement in the form set forth on Exhibit B attached heretoD, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and counsel to the Commitment Parties (at the addresses set forth in Section 10.1), written notice of such Transfer; provided, furtherhowever, that that, except in the case of clause (iii) above, or in the case of a transfer to another Commitment Party’s Affiliated Fund in accordance with the foregoing, no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) [Reserved].
(d) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a2.6(b), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the New Second Lien PIK Toggle Notes or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws.
Appears in 1 contract
Designation and Assignment Rights. (a) Each Commitment Party Plan Sponsor shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Emergence Equity Premium, in each case, Units be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party Plan Sponsor or its Affiliates) (each, each a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party Plan Sponsor and each such Related Purchaser, (ii) specify the number of Unsubscribed SharesEmergence Equity Units, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium as applicable, to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.1 through Section 5.11 5.10 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party Plan Sponsor from its obligations under this Agreement.
(b) Each Plan Sponsor shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the closing of the Additional Capital Commitment Party that some or all of its Additional Capital Commitment Units be issued in the name of, and delivered to, a Related Purchaser upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Plan Sponsor and each such Related Purchaser, (ii) specify the number of Additional Capital Commitment Units to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations set forth in Section 5.1 through Section 5.10 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(b) shall relieve such Plan Sponsor from its obligations under this Agreement.
(c) No Plan Sponsor shall have the right to Transfer all or any portion of its Backstop Commitment only Emergence Equity Purchase rights hereunder other than to (i) another Plan Sponsor, (ii) any party that signs a joinder hereto (“Joinder Agreement”), in the form of Exhibit C, pursuant to which such party agrees to be bound by the terms, conditions and obligations of such transferring Plan Sponsor in the same manner and subject to the same terms, conditions and obligations as such transferring Plan Sponsor was bound hereunder, (iii) any investment fund (A) the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, Plan Sponsor or an Affiliate thereof or (other than any portfolio companyB) that is a bona fide holder of the majority of the limited partnership or similar interests of a Plan Sponsor (collectively, an “Affiliated Fund”) or (iiiv) one or more any special purpose vehicles vehicle that are is, and only for so long as it continues to be, wholly-owned by one such Plan Sponsor or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment Emergence Equity Units, or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which such Commitment Party Plan Sponsor either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop CommitmentEmergence Equity Units, in form and substance either case, that is reasonably acceptable satisfactory to the Company or (B) otherwise remains obligated to fund the Backstop Commitment Emergence Equity Units, to be transferred Transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) Closing (each of the Persons referred to in clauses (i) and (ii)such Person, an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides agrees in a written agreement writing addressed to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment PartyPlan Sponsor’s Backstop CommitmentEmergence Equity Units, and (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached heretoas, and (z) agrees to be bound by with the RSA pursuant to rights and obligations of, a transfer agreement in the form set forth on Exhibit B attached Plan Sponsor hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, furtherhowever, that no sale or Transfer pursuant to this Section 2.6(b2.6(c) shall relieve such Commitment Party Plan Sponsor from its obligations under this Agreement. Other than as set forth Any Transferee of Emergence Equity Purchase rights in accordance with this Section 2.6(b), no Commitment Party 2.6(c) shall be permitted deemed to be a Plan Sponsor, and shall have the rights and obligations of a Plan Sponsor, to the extent of the interests so Transferred thereto. Any purported Transfer of all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall any Emergence Equity Units not in accordance with this Section 2.6(c) will be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeinitio.
(cd) Each Commitment PartyPlan Sponsor, severally and not jointlyneither jointly nor jointly and severally, agrees that it will not Transfer, at any time prior to during the Pre-Closing Date or the earlier termination of this Agreement in accordance with its termsPeriod, any of its rights and obligations under this Agreement to any Person other than in accordance with Section Sections 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement2.6 or 6.5. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Plan Sponsor’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares Emergence Equity Units or any interest therein; provided, however, that any such Transfer shall be made pursuant to (i) an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws and (ii) the terms of any applicable Reorganized Holdings Corporate Documents.
Appears in 1 contract
Samples: Unit Purchase and Support Agreement (Horsehead Holding Corp)
Designation and Assignment Rights. (a) Each Commitment Party shall have the right to designate by written notice to PermianCo (if formed) and the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares Securities that such Commitment Party is required to purchase in accordance with Section 2.2, Rights Offering Securities delivered in connection with the exercise of Subscription Rights (if any), the Minimum Allocation Rights Securities that it is obligated to purchase hereunder, (x) hereunder and the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New PermianCo Common Stock to be issued in respect of the Put Option Equity Premium, in each case, Premium be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds Related Transferees (other than any portfolio company of such Commitment Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company on behalf of PermianCo of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to PermianCo and the Company and signed by such Commitment Party and each such Related PurchaserTransferee, (ii) specify the number of Unsubscribed Shares, Securities delivered in connection with the exercise of Subscription Rights Offering Shares or shares of New (if any) and/or the Minimum Allocation Rights Securities that it is obligated to purchase hereunder and the PermianCo Common Stock to be issued in respect of the Put Option Equity Premium to be delivered to or issued in the name of such Related Purchaser Transferee and (iii) contain a confirmation by each such Related Purchaser Transferee of the accuracy of the representations and warranties set forth in Section 5.7 Sections 4.6 through Section 5.11 4.12 as applied to such Related PurchaserTransferee in respect of the Unsubscribed Securities (or any other PermianCo Common Stock not issued in reliance on section 1145 of the Bankruptcy Code); provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Individual BCA Commitment only (together with a pro rata amount of its Minimum Allocation Rights) to (i) one or more of its Affiliates or any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as of such Commitment Party, Party or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by such Commitment Party and for one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesDebtors, and with respect to which such Commitment Party under this clause (ii) either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, Commitment in form and substance reasonably acceptable to the Company Debtors, the Requisite Consenting Second Lien Creditors and the Requisite Commitment Parties or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred Transferred until the consummation of the Approved Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner manner, as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an a “Ultimate PurchaserRelated Transferee”), and that, in each case, .
(1c) the Ultimate Purchaser provides With respect to any transferee that is not a written agreement to the Company under which it (w) confirms the accuracy Related Transferee of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such a Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a each Commitment Party hereto may Transfer, on one or more occasions, any amount of its Individual BCA Commitment (together with a pro rata amount of its Minimum Allocation Rights), to any Person so long as such transferee agrees, pursuant to a joinder agreement in form and substance satisfactory to the form Debtors, the Requisite Consenting Second Lien Creditors, and Requisite Commitment Parties (a “Joinder Agreement”) (including, for the avoidance of doubt, the agreements and commitments set forth on Exhibit A attached heretoin Section 4.11), and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached heretoobligations of such Commitment Party under this Agreement, and (2) the transferring each of such Commitment Party Party, and Ultimate Purchaser such transferee shall have duly executed and delivered to the Company written notice a copy of such Transfer; providedJoinder Agreement to counsel for the Debtors, furtherthe Commitment Parties, that no sale or and the Second Lien Noteholder Group Parties. Except with respect to a Transfer pursuant to this Section 2.6(b) shall relieve such a Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b)or Related Transferee, no Commitment Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the Debtors and the Requisite Consenting Second Lien Creditors, acting in good faith, shall have determined, in their reasonable discretion after due inquiry and investigation, that the proposed transferee is another Commitment Party or an Affiliate reasonably capable of another Commitment Party (other than any portfolio company)fulfilling such obligations, or (ii) absent such a determination, the proposed transferee has the financial wherewithal to fulfill its obligations with respect shall have deposited into an escrow account under arrangements satisfactory to the Backstop Commitment to be transferred, as determined in Debtors and the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, andRequisite Consenting Second Lien Creditors funds sufficient, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy reasonable determination of the representations set forth in Article V as applied Debtors and the Requisite Consenting Second Lien Creditors, to satisfy such proposed transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment. Upon compliance with this Section 2.6(c), the transferring Commitment Party shall be deemed to relinquish its rights (yand be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) agrees under this Agreement to the extent of such transferred rights and obligations, and the transferee shall be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto)hereunder for all purposes of this Agreement. Any Transfer under this Section 2.6(c) shall be in an amount not less than the lesser of a Individual BCA Commitments (including Minimum Allocation Rights) evidencing $5.0 million (on each such occasion) and such transferring Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereefull Individual BCA Commitment.
(cd) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its termsArticle IX, any of its rights and obligations under this Agreement Agreement, including all or any portion of its Individual BCA Commitment (or Minimum Allocation Rights), to any Person other than in accordance with Section Sections 2.3, Section 2.6(a), and Section 2.6(b) of this Agreementand 2.6(c), and in all cases, in compliance with applicable securities Laws, and any Transfer in contravention hereof shall be null and void ab initio. After the Closing Date, nothing in this Agreement or the certificate of incorporation of PermianCo or bylaws of PermianCo shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the shares of PermianCo Common Stock or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities lawsLaws. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall prohibit or restrict the ability of any Commitment Party to Transfer its Senior Unsecured Notes at any time to any Person; provided, however, any Transfer of Senior Unsecured Notes by a Commitment Party shall be in accordance with the terms of the RSA.
(e) Any transferee of a Commitment Party’s Individual BCA Commitment (together with a pro rata amount of its Minimum Allocation Rights) in compliance with this Section 2.6 shall become a Commitment Party, and Exhibit A shall be amended to reflect such Transfer. Any Person that becomes a Commitment Party as permitted under this Agreement after the date hereof shall be required to become a party to the RSA at the same time as such Person becomes a Commitment Party, by executing a joinder thereto in the form attached as Exhibit C to the RSA.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Breitburn Energy Partners LP)
Designation and Assignment Rights. (a) Each Commitment Party, Reserve Party and QPGL shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Commitment Shares or QP Private Placement Shares, as applicable, that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party, Reserve Party or QPGL, as applicable, or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party, Reserve Party or QPGL, as applicable, and each such Related Purchaser, (ii) specify the number of Unsubscribed Commitment Shares or QP Private Placement Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium as applicable, to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party, Reserve Party or QPGL, as applicable, from its obligations under this Agreement.
(b) Commitment Parties shall not be entitled to Transfer all or any portion of their Commitments except as expressly provided in this Section 2.6. Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to to: (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or ; (ii) one or more special purpose vehicles that are wholly-wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its SubsidiariesCompany; provided, and with respect to which that such transferring Commitment Party or, in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall either (A) has have provided an the Company with a commercially reasonable and adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, Commitment in form and substance reasonably acceptable to the Company or (B) otherwise remains remain (or in the case of a transfer to another Commitment Party’s Affiliated Fund, such other Commitment Party, shall become) obligated to fund the Backstop Commitment to be transferred until the consummation of the Plansuch Commitment; provided, however, further that any such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses clause (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b); or (iii) any other Commitment Party; (each of the Persons referred to in clauses (i), (ii) and (ii)iii) above, an “Ultimate Purchaser”), and that, in . In each casecase of a Commitment Party’s Transfer of all or any portion of its Commitment pursuant to this Section 2.6(b), (1) the Ultimate Purchaser provides shall provide a written agreement instrument to the Company and counsel to the Commitment Parties under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act and the accuracy of the representations set forth in Article V Section 5.8 herein as applied to such Ultimate Purchaser Purchaser, (x) agrees to purchase such the transferred portion of such Commitment Party’s Backstop Commitment, and (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and D (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto“Joinder Agreement”), and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and counsel to the Commitment Parties (at the addresses set forth in Section 10.1), written notice of such Transfer; provided, furtherhowever, that that, except in the case of clause (iii) above, or in the case of a transfer to another Commitment Party’s Affiliated Fund in accordance with the foregoing, no sale or such Transfer pursuant to this Section 2.6(b) shall relieve such the transferring Commitment Party from any of its obligations under this Agreement. Other than .
(c) The Reserve Parties shall not be entitled to Transfer all or any portion of their Reserve Party Commitments except as set forth expressly provided in this Section 2.6(b2.6(c), no Commitment . Each Reserve Party shall be permitted have the right to Transfer all or any portion of its Backstop respective Reserve Party Commitment without to: (i) an Affiliated Fund; (ii) one or more special purpose vehicles that are wholly owned by one or more of such Reserve Party and its respective Affiliated Funds, created for the prior written consent purpose of holding debt or equity of the Company, which consent provided, that any such special purpose vehicle shall not be unreasonably withheld, conditioned related to or delayed Affiliated with any portfolio company of such Reserve Party or any of its Affiliates or Affiliated Funds (it being understood that it would other than solely by virtue of its affiliation with such Reserve Party) and the equity of such special purpose vehicle shall not be unreasonable for the Company directly or indirectly transferable other than to withhold its consent to any such Transfer if Persons described in clause (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transfereeof this Section 2.6(c), and prompt delivery in such manner as such Reserve Party Commitment is transferable pursuant to this Section 2.6(c); or (iii) any other Commitment Party or Reserve Party (each of the Persons referred to in clauses (i), (ii) and (iii) above, a “Reserve Party Ultimate Purchaser”). In each case of a Reserve Party, Transfer of all or any portion of its Reserve Party Commitment pursuant to this Section 2.6(c), (1) the Reserve Party Ultimate Purchaser shall provide a written instrument to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement counsel to the Company Commitment Parties and Reserve Parties under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act and the accuracy of the representations set forth in Article V Section 5.8 herein as applied to such transfereeReserve Party Ultimate Purchaser, (x) agrees to purchase such the transferred portion of such Commitment Party’s Backstop Reserve Party Commitment, and (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Reserve Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached heretoJoinder Agreement, and (z2) the transferring Reserve Party and the Reserve Party Ultimate Purchaser shall have duly executed and delivered to the Company and counsel to the Commitment Parties and Reserve Parties (at the addresses set forth in Section 10.1), written notice of such Transfer; provided, however, that, except in the case of clause (iii) above, or in the case of a transfer to another Reserve Party’s Affiliated Fund, as applicable, in accordance with the foregoing, no such Transfer shall relieve the transferring Reserve Party from any of its obligations under this Agreement.
(d) QPGL shall not be entitled to Transfer the QP Commitment except as expressly provided in this Section 2.6(d). QPGL shall have the right to Transfer all or any portion of the QP Commitment to any of its Affiliates or other entities with the same ultimate controlling person or beneficiary as QPGL (an “Affiliate Transferee”), provided that such Affiliate Transferee (i) shall provide a written instrument to the Company and counsel to the Commitment Parties (at the addresses set forth in Section 10.1) under which it (w) confirms that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act or a non-U.S. person outside the United States pursuant to Regulation S under the Securities Act and the accuracy of the representations set forth in Section 5.8 herein as applied to such Affiliate Transferee, (x) agrees to purchase the transferred portion of such QP Commitment, and (y) agrees to be fully bound by the RSA by, and subject to, this Agreement as if it were QPGL, pursuant to a transfer agreement in Joinder Agreement, and (ii) QPGL and the form Affiliate Transferee shall have duly executed and delivered to the Company and counsel to the Commitment Parties (at the addresses set forth on Exhibit B attached hereto). Any in Section 10.1) written notice of such Transfer; provided, however, that no such Transfer shall relieve QPGL from any of a Commitment Party’s its obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transfereeAgreement.
(ce) Each Commitment Party, each Reserve Party and QPGL, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b), Section 2.6(c) of this Agreementor Section 2.6(d), as applicable. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party, Reserve Party or QPGL (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering the New Common Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder (or pursuant to Regulation S under the Securities Act) and pursuant to applicable securities lawsLaws. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall prohibit or restrict the ability of any Commitment Party or Reserve Party to Transfer its Subscription Rights, in accordance with the Rights Offering Procedures.
Appears in 1 contract
Samples: Commitment Agreement (Equity) (Pacific Drilling S.A.)
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company and Xxxxxx Xxxxx no later than two (2) Business Days prior to the Closing Escrow Funding Date that some or all of (w) the Unsubscribed Shares that it is obligated its Backstop Securities and/or GUC New Convertible Notes Class C Distribution Securities be delivered to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, each a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereofhereof (it being understood that payment by either the Related Purchaser or the Backstop Party shall satisfy the applicable payment obligations of the Backstop Party), which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related Purchaser, (ii) specify the number or amount of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium such securities to be delivered to or issued in the name of such Related Purchaser Purchaser(s) and (iii) contain a confirmation by each such Related Purchaser Purchaser(s) of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.8 as applied to such Related PurchaserPurchaser(s); provided, however, provided that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Backstop Party from its obligations under this AgreementAgreement nor shall it change the Backstop Commitment Percentage held by the designating Backstop Party.
(b) Each Commitment Backstop Party shall have the right right, at any time at least two (2) Business Days prior to the Escrow Funding Date, to Transfer all or any portion of its Backstop Commitment only to (ix) a Related Purchaser, (y) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) Backstop Party or (iiz) one any other Person or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii)such transferee, an “Ultimate Purchaser”); provided that:
(i) in the case of clause (z) above, as a condition of such Transfer, such Person provides the Company and thatthe Requisite Backstop Parties with (A) a written representation that it (together with its Affiliates) has sufficient financial resources to satisfy its obligations under this Agreement and (B) five (5) Business Days prior to the applicable Transfer, either (I) evidence (which can be in the form of a representation to the Company and the Requisite Backstop Parties included in or with the joinder to this Agreement) that such Person (together with its Affiliates) has at least $500 million in cash on hand or assets under management, or (II) such other evidence of financial capability satisfactory to the Company in its reasonable discretion (it being understood that evidence of financial capability of the proposed Ultimate Purchaser together with its Affiliates shall be taken into account), including but not limited to a recent statement of assets and such other evidence as to financial capability as it relates to the cash portion of such Transferred commitments as the Company may reasonably request (provided that such evidence shall be deemed satisfactory if the Company has not responded to the contrary in writing within five (5) Business Days of delivery detailing the grounds on which it finds such evidence to be unsatisfactory);
(ii) any Transfer by a Backstop Party to an Ultimate Purchaser of a percentage of its New Convertible Notes Class C Backstop Commitment and ERO New Common Stock Backstop Commitment (each casea “Commitment”) shall include a proportional amount of each Commitment and shall be accompanied by a corresponding amount of BCA Claims (which shall, for the avoidance of doubt, include the Allowed Amount of BCA Claims as would be necessary to pay the New Convertible Notes Class C Purchase Price); and
(1iii) as a condition of such Transfer, the Ultimate Purchaser provides must on or prior to the date of the relevant transfer, (A) agree in a written agreement writing addressed to the Company under which it (wwith a copy to Xxxxxx Xxxxx) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Backstop Party’s Backstop CommitmentCommitment (B) if such Ultimate Purchaser is not an Original Backstop Party, agree in a writing addressed to the Company (with a copy to Xxxxxx Xxxxx) to pay any increase in payment by the Company to such person pursuant to Section 3.4(b) incurred by the Company as a result of the jurisdiction of organization of the transferee being different than that of any of the existing parties to this Agreement (as of the date of this Agreement)) that would not have been incurred absent the Transfer, (yC) agrees to be fully bound by, and subject to, the extent not already party to this Agreement as a Commitment Party hereto pursuant and/or the Restructuring Support Agreement, execute (and deliver to the Company and Xxxxxx Xxxxx) (I) for Ultimate Purchasers not already party to this Agreement a joinder agreement to this Agreement in the form attached as Exhibit A hereto, it being understood that such joinder shall satisfy the requirements set forth on Exhibit A attached heretoin clauses (A) and (B) of this clause (iii) as well as clauses (A) and (B)(I) of clause (i) of the proviso to this Section 2.6(b), or (II) for Ultimate Purchasers not already party to the Restructuring Support Agreement, a Joinder to the Restructuring Support Agreement (as defined in, and in the form previously agreed to pursuant to, the Restructuring Support Agreement), and (zD) agrees to be bound by for the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached heretoavoidance of doubt, and (2) the transferring Commitment Party and any such Ultimate Purchaser shall have duly executed and delivered who was not already party to the Company written notice Restructuring Support Agreement must comply with the provisions of Section 6(e) of the Restructuring Support Agreement, it being understood that delivery of the Joinder to the Restructuring Support Agreement described in clause (C)(II) of this clause (iii) shall satisfy such Transferprovisions; provided, and provided further, that no sale or any purported Transfer in violation of this Section 2.6(b) shall be void ab initio.8 Upon consummation of a Transfer of the Commitments and related BCA Claims to an Ultimate Purchaser pursuant to this Section 2.6(b) ), the Transferring Backstop Party shall relieve such Commitment Party be relieved from its obligations in respect of such Commitments in respect of such Transferred BCA Claims. Notwithstanding the foregoing or anything to the contrary herein, nothing herein shall limit the ability of a Backstop Party to grant another person a participation in its rights and 8 As promptly as practicable after the date of this Agreement, the Requisite Backstop Parties and Company shall agree on (i) a form for a single document that can be signed by an Ultimate Purchaser that is not yet party to this Agreement that will satisfy all requirements of this Agreement in connection with a Transfer and (ii) a form for a single document that can be signed by an Ultimate Purchaser that is already a Backstop Party prior to such Transfer that will satisfy all requirements of this Agreement in connection with such Transfer. obligations under this Agreement. Other than Agreement or in respect of any BCA Claims held by it so long as set forth in this Section 2.6(b)the Backstop Party granting such participation is not relieved from its obligations hereunder.
(c) For the avoidance of doubt, no Commitment Party any Transfer of BCA Claims by a Backstop party shall be permitted accompanied by a proportional Transfer of the related Commitments and any Transfer of any Commitments shall be accompanied by a proportional Transfer of the related BCA Claims. Any purported transfer of BCA Claims or Commitments that does not comply with this Agreement shall be null and void ab initio.
(d) The Company shall maintain a copy of each joinder delivered to Transfer it and a register (the “Register”) for the recordation of the names and addresses of the Backstop Parties and the Backstop Commitments of each Backstop Party from time to time; provided that the Company shall share a copy of the Register with the AHG Advisors upon reasonable request and shall consult with the AHG Advisors concerning any updates thereto. The Parties hereto shall treat each Person whose name is recorded in the Register as the owner of a Backstop Commitment for all purposes of this Agreement.
(e) Any Backstop Party may at any time, without the consent of, or notice to, the Company, sell participations or enter into any other agreement to transfer the risk to one or more financial institutions or other entities (other than a natural Person or a Competitor Party that is not an affiliate of a Backstop Shareholder) (each a “Participant”) in all or any a portion of such Backstop Party’s rights and/or obligations under this Agreement (including all or a portion of its Backstop Commitment without the prior written consent of the CompanyCommitment); provided that: unless and until there is a transfer to an Ultimate Purchaser in compliance with Section 2.6(b) hereof, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the such Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effectremain unchanged, regardless of any prior notice provided (ii) such Backstop Party shall remain solely responsible to the Debtors or any Commitment other Parties hereto for the performance of such obligations and (iii) the Company and other Backstop Parties shall continue to deal solely and directly with such Backstop Party in connection with such Backstop Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its ’s rights and obligations under this Agreement and (iv) any agreement or instrument pursuant to which a Backstop Party sells such a participation shall provide that such Backstop Party shall retain the sole right to enforce this Agreement and to approve any Person other than in accordance with Section 2.3amendment, Section 2.6(a), and Section 2.6(b) modification or waiver of any provision of this Agreement. Agreement and that no consent of any Participant shall be required in connection with any such action.
(f) After the Closing Date, nothing in this Agreement or the Reorganized LATAM Parent Corporate Documents shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares Plan Securities or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements thereunder and pursuant to applicable securities laws.
Appears in 1 contract
Samples: Backstop Commitment Agreement
Designation and Assignment Rights. (a) Each Commitment Backstop Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares that it is obligated its Backstop Securities, Holdback Securities and/or right to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, any Backstop Premium be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party or its Affiliates) (each, each a “Related PurchaserSubscriber”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Backstop Party and each such Related PurchaserSubscriber, (ii) specify the amount or number of Unsubscribed Shares, Rights Offering Shares or shares of New Common Stock to be issued in respect of the Put Option Equity Premium such securities to be delivered to or issued in the name of such Related Purchaser Subscriber and (iii) contain a confirmation by each such Related Purchaser Subscriber of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related PurchaserSubscriber; provided, however, provided that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Backstop Party from its obligations under this Agreement.
(b) Each Commitment Party The Backstop Parties shall have the right not be entitled to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such their Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Holdback Commitment Party either (A) has except as expressly provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Section 2.6(b), no Commitment 2.6 and each Backstop Party shall be permitted to Transfer all or any portion of its Backstop Commitment without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment to be transferred, as determined in the Company’s reasonable opinion after request by the Company to the transferee, and prompt delivery to the Company by the transferee, of proof of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such transferee, (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto). Any Transfer of a Commitment Party’s obligations under this Agreement made in violation of this paragraph shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment Party to the purported transferee.
(c) Each Commitment Partyagrees, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person other than in accordance with this Section 2.32.6. Each Backstop Party shall have the right to Transfer all or any portion of its Backstop Commitment, Section 2.6(a)Holdback Commitment or right to any Backstop Premium to (i) a Related Subscriber, (ii) any other Backstop Party or (iii) one or more other Persons that is reasonably acceptable to the Company and the Requisite Backstop Parties (each such transferee, an “Ultimate Subscriber”) and that, in each case (x) executes and delivers to the Company an RSA Joinder and a BCA Joinder (if such Ultimate Subscriber is not then party to the Restructuring Support Agreement or this Agreement, as applicable) and (y) agrees in a writing addressed to the Company (a) to subscribe for such portion of such Backstop Party’s Backstop Commitment and (b) to be fully bound by, and subject to, this Agreement; provided that no such Transfer pursuant to this Section 2.6(b) shall relieve such Backstop Party from its obligations under this Agreement. Any Transfer of a Backstop Party’s obligations under this Agreement made in violation of this AgreementSection 2.6 shall be deemed null and void ab initio and of no force or effect and shall not create any obligation or liability of any Debtor or any other Backstop Party to the purported transferee. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the any Backstop Party’s ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Second Lien Notes or New Shares or any interest therein; provided, however, that any such Transfer shall be made pursuant to an effective registration statement under in accordance with the Securities Act and applicable securities Laws.
(c) Notwithstanding anything to the contrary in this Agreement, none of the Issuers or an exemption the Debtors shall bear the cost of any United Kingdom stamp duty or stamp duty reserve tax arising from or in connection with any instrument of or agreement to Transfer any of the registration requirements thereunder and Rights Offering Securities or rights granted pursuant to applicable securities lawsthis Agreement.
(d) The Parties will cooperate in good faith after the date of this Agreement to mitigate, to the extent possible, any United Kingdom stamp duty or stamp duty reserve tax arising from or in connection with transfers or rights effected pursuant to this Section 2.6, including by way of an amendment to the terms of this Agreement, provided that nothing in this Section 2.6(d) shall require the Company or any of the other Debtors to take, or agree to take, any steps which may be prejudicial to its affairs or the affairs of its estate or other parties in interest (tax or otherwise).
Appears in 1 contract
Designation and Assignment Rights. (a) Other than as expressly set forth in this Section 2.6, no Commitment Party shall be permitted to Transfer its Commitments.
(b) Each Commitment Party shall have the right to designate by written notice to the Company Company, the Subscription Agent and Milbank, no later than two (2) Business Days prior to the Closing Date that some or all of (w) the Unsubscribed Shares Units or 4(a)(2) Backstop Commitment Units that it is obligated to purchase hereunder, (x) the Available Shares, if any, (y) the Rights Offering Shares pursuant to its exercise of the Subscription Rights, or (z) the shares of New Common Stock to be issued in respect of the Put Option Equity Premium, in each case, hereunder be issued in the name of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party (or its Affiliates) or any Subsidiary thereof) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares, Rights Offering Shares Units or shares of New Common Stock to be issued in respect of the Put Option Equity Premium 4(a)(2) Backstop Commitment Units to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations and warranties set forth in Section 5.7 Sections 5.6 through Section 5.11 5.9 as applied to such Related Purchaser; provided, however, that no such designation pursuant to this Section 2.6(a) shall relieve such Commitment Party from its obligations under this Agreement.
(b) Each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such Commitment Party, the same investment advisor or manager as such Commitment Party, or an Affiliate thereof (other than any portfolio company) (an “Affiliated Fund”) or (ii) one or more special purpose vehicles that are wholly-owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding such Backstop Commitment or holding debt or equity of the Company and its Subsidiaries, and with respect to which such Commitment Party either (A) has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment, in form and substance reasonably acceptable to the Company or (B) otherwise remains obligated to fund the Backstop Commitment to be transferred until the consummation of the Plan; provided, however, that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in clauses (i) or (ii) of this Section 2.6(b), and in such manner as such Commitment Party’s Backstop Commitment is transferable pursuant to this Section 2.6(b) (each of the Persons referred to in clauses (i) and (ii), an “Ultimate Purchaser”), and that, in each case, (1) the Ultimate Purchaser provides a written agreement to the Company under which it (w) confirms the accuracy of the representations set forth in Article V as applied to such Ultimate Purchaser (x) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, (y) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant to a joinder agreement in the form set forth on Exhibit A attached hereto, and (z) agrees to be bound by the RSA pursuant to a transfer agreement in the form set forth on Exhibit B attached hereto, and (2) the transferring Commitment Party and Ultimate Purchaser shall have duly executed and delivered to the Company written notice of such Transfer; provided, further, that no sale or Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Other than as set forth in this Additionally, subject to Section 2.6(b2.6(e), no each Commitment Party shall be permitted have the right to Transfer all or any portion of its Backstop Commitments to any creditworthy Related Purchaser, provided, that such Commitment without Party shall (i) provide written notice to the prior written consent Company of such Transfer as far in advance thereof as practicable and (ii) deliver to the Company, which the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit B, executed by such Commitment Party and such Related Purchaser.
(c) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any other Commitment Party or such other Commitment Party’s Related Purchaser (each, an “Existing Commitment Party Purchaser”), provided, that (i) such Existing Commitment Party Purchaser or such Existing Commitment Party Purchaser’s Affiliate or Affiliated Fund shall have been a Commitment Party as of immediately prior to such Transfer and (ii)(1) to the extent such Existing Commitment Party Purchaser is not a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit C-1, executed by such Commitment Party and such Existing Commitment Party Purchaser and (2) to the extent such Existing Commitment Party Purchaser is already a Commitment Party hereunder, such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank an amendment to this Agreement, substantially in the form attached hereto as Exhibit C-2, executed by such Commitment Party and such Existing Commitment Party Purchaser.
(d) Subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Commitments to any Person that is not an Existing Commitment Party Purchaser (each of the Persons to whom a Transfer is made, a “New Purchaser”), provided, that (i) such Transfer shall have been consented to by the Requisite Commitment Parties in writing (such consent not to be unreasonably withheld, conditioned or delayed; provided, that the Requisite Commitment Parties shall be deemed to have so consented if they fail to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), (ii) such Transfer shall have been consented to by the Company in writing (such consent not be unreasonably withheld, conditioned or delayed (delayed, it being understood that it would be unreasonable for the Company to withhold its consent to any such Transfer if (i) the transferee is another Commitment Party or an Affiliate of another Commitment Party (other than any portfolio company), or (ii) the transferee New Purchaser has the financial wherewithal to fulfill its obligations with respect to the Backstop Commitment Commitments to be transferred; provided, that the Company shall be deemed to have so consented if it fails to deliver an objection to such Transfer in writing to Milbank by the close of business on the third (3rd) Complete Business Day following delivery of such proposed Transfer), and (iii) such Commitment Party shall deliver to the Company, the Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as determined in Exhibit D executed by such Commitment Party, such New Purchaser and the Company.
(e) No Commitment Party shall have the right to Transfer all or any portion of its Commitments to the Company or any of the Company’s reasonable opinion after request by Affiliates. A Commitment Party shall have the Company right to Transfer all or any portion of its Commitments to any other Person pursuant to the transferee, and prompt delivery to the Company by the transferee, terms of proof this Agreement whether or not it is making a simultaneous transfer of such financial wherewithal, and, in the case of clauses (i) and (ii), such transferee provides a written agreement to the Company under which it (w) confirms the accuracy corresponding amount of the representations set forth in Article V as applied Note Claims. For the avoidance of doubt, it is the intent of the Parties that a Transfer of the Commitments pursuant to such transfereethis Section 2.6 will represent a transfer of proportional portions of the Rights Offering Backstop Commitment and the 4(a)(2) Backstop Commitment and that, (x) agrees to purchase such portion accordingly, any Transfer of such Commitment Party’s Rights Offering Backstop CommitmentCommitment or 4(a)(2) Backstop Commitment shall be permitted only if coupled by a proportional Transfer of the other. Except as set forth in the first sentence of Section 2.6(b), no Commitment Party shall have the right to Transfer all or any portion of its Commitments to any other Person following receipt of the Funding Notice pursuant to, and in accordance with, Section 2.4. Any Commitment Party seeking to Transfer its Commitments to any other Person must provide the Company, the Subscription Agent and Milbank with prior written notice of such proposed Transfer no less than three (y3) agrees Complete Business Days prior to the date of the consummation of such proposed Transfer, which notice shall state the total amount of (i) Commitments to be fully bound by, and subject to, this Agreement as a Commitment Party hereto pursuant Transferred (ii) Joinder Commitments to a joinder agreement in the form set forth on Exhibit A attached hereto, be Transferred and (ziii) agrees Incremental Commitments to be bound by Transferred, in each case, to the RSA pursuant extent applicable to a transfer agreement in the form set forth on Exhibit B attached hereto)such Transfer. Any Transfer of a Commitment Party’s obligations under this Agreement made (or attempted to be made) in violation of this paragraph Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Debtors Parties or any Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any Debtor or any other Commitment Party or any Debtor to the purported transferee.
(c) Each Commitment Partytransferee or limit, severally and not jointlyalter or impair any agreements, agrees that it will not Transfercovenants, at any time prior to or obligations of the Closing Date or the earlier termination of this Agreement in accordance with its terms, any of its rights and obligations proposed transferor under this Agreement to any Person other than in accordance with Section 2.3, Section 2.6(a), and Section 2.6(b) of this Agreement. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Commitment Party (or any permitted transferee thereof) to Transfer any of its Unsubscribed Shares, Rights Offering Shares the Common Units or any interest therein; .
(f) Any Person that is Transferred a Joinder Commitment by a Joinder Commitment Party in compliance with the terms of this Section 2.6 shall be a Joinder Commitment Party with respect to such Commitment, as applicable, for all purposes herein. Any Person that is Transferred a Commitment by a Senior Commitment Party in compliance with the terms of this Section 2.6 shall be a Senior Commitment Party with respect to such Commitment. Any Person that is Transferred an Incremental Commitment by an Incremental Senior Commitment Party in compliance with the terms of this Section 2.6, shall be an Incremental Senior Commitment Party with respect to such Incremental Commitment.
(g) No Exit Term Loan Commitment Party shall be permitted to Transfer its Exit Term Loan Backstop Commitment, other than (i) a Transfer of all or any portion of its Exit Term Loan Backstop Commitment to any creditworthy Related Purchaser, provided, however, that any such Exit Term Loan Commitment Party shall (A) provide written notice to the Company and Milbank of such Transfer shall be made pursuant as far in advance thereof as practicable and (B) to the extent such Related Purchaser is not an effective registration statement under Exit Term Loan Commitment Party hereunder deliver to the Securities Act Company and Milbank a joinder to this Agreement, substantially in the form attached hereto as Exhibit E, executed by such Exit Term Loan Commitment Party, such Related Purchaser and the Company, and (ii) Transfer a proportional amount of its Exit Term Loan Backstop Commitment to any Person in connection with any Transfer of all or an exemption from the registration requirements thereunder and pursuant any portion of such Party’s Commitments to applicable securities lawssuch Person in accordance with Sections 2.6(c) through (e).
Appears in 1 contract
Samples: Backstop Commitment and Equity Investment Agreement (Vanguard Natural Resources, LLC)
