Negative Commitments. Except as set forth in Section 8, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly: (a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions; (b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in this Agreement or the Plan; (c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects; (d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan; (e) amend, alter, supplement, restate or otherwise modify any Definitive Documents in a manner materially inconsistent with this Agreement; (f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes; (g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld; (h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors; (i) engage in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors; (j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof; (k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or (l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholding.
Appears in 2 contracts
Samples: Restructuring Support Agreement (FTS International, Inc.), Restructuring Support Agreement (FTS International, Inc.)
Negative Commitments. Except as set forth in Section 86.4, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object Commence a bankruptcy case with respect to OpCo or any Company Party other than MLP or Finance Corp.;
(b) Object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(bc) take Take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in in, this Agreement or the Plan;
(c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respectsDefinitive Documents;
(d) file File any motion, pleading, pleading or Definitive Documents other document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent inconsistent with this Agreement Agreement, the Plan or the PlanDefinitive Documents;
(e) amendAmend, alter, supplement, restate or otherwise modify any Definitive Documents Document, in whole or in part, in a manner that is materially inconsistent with this AgreementAgreement or the Transactions;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(gi) operate its business or make any payments outside the ordinary course of businesscourse, taking into account the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld Transactions or (ii) other than the Transactions or any activities contemplated or required in connection with the Transactions, engage in any material merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction or transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business business, in each of cases (i) and (ii) and without the consent of the Required Consenting CreditorsNoteholders, such which consent shall not to be unreasonably withheld;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
(i) engage in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholding.
Appears in 1 contract
Samples: Transaction Support Agreement (Ferrellgas Partners Finance Corp)
Negative Commitments. Except as set forth in Section 89 or with the prior written consent of the Required Consenting Creditors, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly, and shall cause their respective subsidiaries not to:
(a) object to, delay, impede, or take any other action to interfere with or that is inconsistent with or is intended or could reasonably be expected to interfere with, delay, or impede the acceptance, approval, implementation, or consummation of the Restructuring Transactions, including any action to undermine the enforcement of the Prepetition Intercreditor Agreements (except as otherwise provided in accordance with the Restructuring Transactions);
(b) take withdraw or revoke the Chapter 11 Plan or WHOA Plan or publicly state its intention not to pursue the Chapter 11 Plan or WHOA Plan or to delay in any action way the pursuit of confirmation of the Chapter 11 Plan or WHOA Plan in a manner that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of with the Restructuring Transactions described in this Agreement or the PlanMilestones;
(c) directly or indirectly, through any Entity, seek, solicit, propose, support, assist, or participate in the formulation or preparation of any Alternative Restructuring Proposal;
(d) amend or propose to amend its respective certificate or articles of incorporation, bylaws, or comparable organizational documents in a manner inconsistent with this Agreement, the Chapter 11 Plan or the WHOA Plan;
(e) enter into any separate or additional agreement (including without limitation, support agreements, cooperation agreements or letter agreements) in respect of the Restructuring Transactions with any Party without the consent of the Required Consenting Creditors;
(f) modify the Chapter 11 Plan, WHOA Plan or any Definitive Document, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) amend, alter, supplement, restate or otherwise modify any Definitive Documents in a manner materially inconsistent with this Agreement;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;; or
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
(i) engage in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;
(j) seek, solicitcommence, support, file, encourage, propose, assist, consent to, vote for, enter or join any agreement with any person regarding, pursue litigation or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent adversary proceeding relating to the filing by Chapter 11 Cases or the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims Dutch Scheme Proceedings against the Company Parties; or
(l) treat the RSA Premium paid to the any Consenting Creditors as subject to U.S. federal income tax withholdingCreditor.
Appears in 1 contract
Samples: Restructuring Support Agreement (DIEBOLD NIXDORF, Inc)
Negative Commitments. Except as set forth in Section 8, during During the Agreement Effective Period, each Ascent agrees in respect of any and all of its Existing Equity Interests and Company Claims, to the Company Parties extent applicable, that it shall not directly or indirectly:
: (a) object to, delay, impede, or take any other action to interfere with the pursuit, acceptance, implementation, or consummation of the Restructuring Transactions;
(including, for the avoidance of doubt, the Non-Ascent Restructuring), or take any other action that is inconsistent with, or that would delay or obstruct the proposal or consummation of, the Restructuring (including, for the avoidance of doubt, the Non-Ascent Restructuring); (b) take any action that is inconsistent in any material respect with, or is intended to frustrate frustrate, impede, delay or impede obstruct the approval, implementation implementation, and consummation of the Restructuring Transactions described in this Agreement or (including, for the Plan;
avoidance of doubt, the Non-Ascent Restructuring); (c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents o r o t h e r d o c u me n t s with the SEC, the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or and the Plan;
Definitive Documents; (ed) amend, alter, supplement, restate or otherwise modify Transfer any Definitive Documents in a manner materially inconsistent with this Agreement;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer any material asset or right of the Company Parties Ascent (including any Existing Equity Interests held by Ascent) or any material asset or right used in the business of the Company Parties Ascent to any person or entity Person outside the ordinary course of business without the consent of the Required Consenting CreditorsNoteholders, such consent not to be unreasonably withheld;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
Term Lenders and the Company Parties, other than as contemplated by the Restructuring; (ie) take any worthless stock deduction with respect to any Existing Equity Interests held by Ascent; (f) take any action that would impair the value of the net operating loss carryforwards and other similar tax attributes of Ascent or Monitronics; 25 EXECUTION VERSION (g) engage in any material merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, business other than as contemplated by the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;
Restructuring; (j) seekh)seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regardinginto, participate in, pursue or consummateconsummate any Alternative Transaction, or engage in, continue, or otherwise participate in any negotiations regarding any Alternative Restructuring ProposalProposal or engage in, subject continue, or otherwise participate in all respects to Section 8.01 hereof;
(k) except with discussions regarding the consent of the Required Consenting Creditorsnegotiation or formulation of, or otherwise pursue, any alternate financing or other equity proposal or offer; (i) take exercise any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order right or restricts the ability of Consenting Creditors or other parties remedy with respect to Transfer any of the Existing Equity Interests or Company Parties’ securitiesClaims, to the extent applicable, other than in accordance with this Agreement;. (j) withdraw or revoke any tender, consent and/or vote with respect to the Restructuring (including, for the avoidance of doubt, any such order intended the Non-Ascent Restructuring) to preserve net operating losses or other tax attributes or the extent applicable, except as otherwise expressly permitted pursuant to this Agreement; (iik) make any material determination with respect to (a) any such Transfer restrictionliquidation, sell-down orderpartnership, propose, file, support, vote for, or notification requirement regarding ownership consent to any dissolution, winding up, reorganization,merger,consolidation,businesscombination,jointventure, sale of claims in order to determine whether further actions (including Transfer restrictions assets, or sell-down orders) are necessary or (b) the potential imposition or waiver of restructuring for any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties other than as contemplated and agreed to as part of a motion restricting trading of equity securities whichthe Restructuring (including, for the avoidance of doubt, do the Non-Ascent Restructuring); (l) file any motion, pleading, or other document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) or take any other action that, in whole or in part, is not include Claims materially consistent with the Restructuring (including, for the avoidance of doubt, the Non-Ascent Restructuring), this Agreement or the Plan; (m) initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to this Agreement, the Restructuring (including, for the avoidance of doubt, the Non-Ascent Restructuring), or the Chapter 11 Cases contemplated herein against the Company Parties or the other Parties other than to enforce this Agreement or any Definitive Document, to effectuate the Restructuring in accordance therewith, or as otherwise permitted under this Agreement; (n) object to, delay, impede, or take any other action to interfere with the Company Parties’ ownership and possession of their assets, wherever located, or interfere with the automatic stay arising under section 362 of the Bankruptcy Code; or
or (o) enter into or adopt any new Compensation Arrangements (or amend, modify, or terminate any existing Compensation Arrangements) without the consent of the Required Consenting Noteholders (other than as contemplated by the Restructuring Term Sheet). For the avoidance of doubt, (i) the agreements and covenants set forth in Sections 7.02(a), (b), (c), (d) (solely with respect to the Transfer of any Existing Equity Interests held by Ascent), (e), (f) (solely with respect to net operating loss carryforwards and other similar tax attributes of Monitronics), (h), (i), (j), (k), (l), (m), and (n) treat shall survive the RSA Premium paid to occurrence of the Consenting Creditors as subject to U.S. federal income tax withholding.Non-Ascent 26
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascent Capital Group, Inc.)
Negative Commitments. Except as set forth in Subject to Section 8, during the Agreement Effective Period, subject to the terms and conditions hereof, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in in, this Agreement or the Plan;
(c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) amend, alter, supplement, restate or otherwise modify any Definitive Documents Document in a manner materially inconsistent with this Agreement;
(f) take or permit settle any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, material litigation without the consent of the Required Consenting Creditors, such Stakeholders; or
(g) without the prior written consent not to be unreasonably withheld or (iiemail being sufficient) transfer any asset or right of the Company Parties Required Consenting Stakeholders, (i) enter into, terminate, or otherwise modify any asset material operational contract, lease, or right used other arrangement other than in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent or (ii)(a) make any payment to any officer or employee of the Required Consenting Creditors, such consent not to be unreasonably withheld;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
(i) engage in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside Company Party out of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;
(jb) seek, solicit, support, file, encourage, propose, assist, consent agree to, vote for, enter any agreement with any person regarding, pursue or consummateincur, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result material increase in the entry compensation payable or to become payable to any officer or employee of any order by Company Party, or (c) materially increase the Bankruptcy Court that imposes a sellbenefits of any such officer or employee (except for increases in the compensation of non-down order or restricts officer employees in the ability ordinary course of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for business and consistent with past practice). For the avoidance of doubt, any such order intended payments to preserve net operating losses any officer or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver employee of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid Party made in accordance with agreements or arrangements specifically disclosed to the Consenting Creditors Stakeholders, in existence as subject of the Execution Date, and contemplated to U.S. federal income tax withholdingbe assumed under the Plan shall constitute payments in the ordinary course of business.
Appears in 1 contract
Negative Commitments. Except as set forth in Section 87, during the Agreement Effective Period, each of the Company Parties shall not not, without the prior written consent of the Required Consenting Lenders, directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action or file any motion, pleading, or Definitive Document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation implementation, and consummation of of, the Restructuring Transactions described in this Agreement or the PlanTransactions;
(cb) seek to modify the Plan, Definitive Documents in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(c) amend or change, or pose to amend or change, any of the Company Parties’ respective Organizational Documents;
(d) file any motiongrant, pleadingagree to grant, or Definitive Documents with make any payment on account of (including pursuant to a key employee retention plan, key employee incentive plan, or other similar arrangement) any additional or increase in the wages, salary, bonus, commissions, retirement benefits, pension, severance or other compensation or benefits of any employee or director qualifying as an insider under the Bankruptcy Court or any other court (including any modifications or amendments thereof) thatCode, in whole or in part, is not materially consistent with this Agreement or without the Planprior written consent of the Required Consenting Lenders;
(e) amendauthorize, altercreate, supplementissue, restate sell or otherwise modify grant any Definitive Documents in a manner materially inconsistent with this Agreement;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ businessadditional equity interests, or (3) change in the classification of reclassify, recapitalize, redeem, purchase, acquire, declare any Company Party for U.S. federal income tax purposes;
(g) operate its business distribution on, or make any payments outside the ordinary course of businessdistribution on any equity interests, taking into account the Restructuring Transactionsin each case, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting CreditorsLenders;
(i) engage seek discovery in any mergerconnection with, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtednessprepare, or commence any proceeding or other similar transaction outside action that challenges (A) the amount, validity, allowance, character, enforceability, or priority of any Company Claims/Interests of any of the ordinary course Consenting Lenders, or (B) the validity, enforceability, or perfection of business, any lien or other than the transactions contemplated herein and on the terms hereof without the consent encumbrance securing any Company Claims/Interests of any of the Required Consenting CreditorsLenders or (ii) support any Person in connection with any of the acts described in clause (i) of this Section 6.02(f);
(jg) seek, consummate the Restructuring Transactions unless each of the conditions to the consummation of such transactions set forth in this Agreement has been satisfied (or waived by the applicable Persons in accordance with Section 13); or
(h) solicit, support, fileinitiate, encourage, proposeor propose (in each case, assist, consent to, vote for, enter any agreement with any person regarding, pursue directly or consummate, indirectly) any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholding.
Appears in 1 contract
Negative Commitments. Except as set forth in Section 8pursuant to the consummation of the Transactions, during the Agreement Effective Period, each the Company shall not, without the prior written consent of the Company Parties shall not Required Consenting Secured Parties, directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of of, the Restructuring Transactions described in this Agreement or the PlanTransactions;
(c) modify the Plan(i) execute or file any agreement, in whole instrument, form, or in part, in a manner other document that is not consistent with utilized to implement or effectuate, or that otherwise relates to, this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with and/or the Bankruptcy Court or any other court (including any modifications or amendments thereof) Transactions that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) amend, alter, supplement, restate or otherwise modify any Definitive Documents in a manner materially inconsistent all material respects with this Agreement;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change that is not otherwise in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, without the consent of form and substance reasonably acceptable to the Required Consenting Creditors, such consent not to be unreasonably withheld or Secured Parties in accordance with Section 3 and (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditorswaive, such consent not to be unreasonably withheld;
(h) amend, terminate, or modify any agreementof the Definitive Documents, documentwhich waiver, instrumentamendment, indenturemodification, or other writing evidencing filing contains any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminateprovision that is not consistent in all material respects with this Agreement, or discharge any such indebtedness without the consent of is not otherwise consented to by the Required Consenting Creditors;
(i) engage Secured Parties in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement accordance with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, 12; for the avoidance of doubt, this Section 6.02(c) does not prohibit the Company from executing any such order intended to preserve net operating losses waiver, amendment or other tax attributes modification that does not contradict the Transaction Term Sheet, the New Term Loan Credit Agreement or (ii) make any material determination with respect to (a) any the Description of New Notes, provided that such Transfer restrictionwaiver, sell-down order, amendment or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of modification does not adversely affect any of the foregoingConsenting Secured Parties in accordance with Section 12; provided that and
(d) without the prior written consent of the Required Consenting Creditors Secured Parties, which consent shall consent to the filing by not be unreasonably withheld, terminate any engagement letter or fee letter between the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholdingand any Ad Hoc Group Advisor.
Appears in 1 contract
Negative Commitments. Except as set forth in Section 88 or with the prior written consent of the Required Consenting Noteholders, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly, and shall cause their respective subsidiaries not to:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in this Agreement or the Plan;
(c) modify the Plan, in whole or in part, in a manner to reflect terms that is are not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement (including the consent rights of the Consenting Noteholders set forth herein as to the form and substance of such motion, pleading, or other Definitive Document) or the Plan;
(e) amendsell (including any sale leaseback transaction), alterlease, supplementmortgage, restate pledge, grant, or incur any encumbrance on, or otherwise modify Transfer, any Definitive Documents in a manner materially inconsistent with this Agreement;
(f) take properties or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course assets of the Company Parties’ business, including any Equity Interests, other than (i) sales or (3) change disposals of properties or assets in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account (ii) the Restructuring TransactionsFlorida Sale Leaseback Transaction, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer the PNW Sale;
(f) purchase, lease, or otherwise acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any asset assets or right of the Company Parties or any asset or right used properties, other than in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheldbusiness;
(hg) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
(i) engage in enter into any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtednessmerger with or into, or consolidation or amalgamation with, any other similar transaction outside of Person, other than in the ordinary course of business, (ii) permit any other Person to enter into any merger with or into, or consolidation or amalgamation with, it, other than in the transactions contemplated herein ordinary course of business, or (iii) enter into any joint venture, partnership, sharing of profits or other similar arrangement involving co-investment between a Company Party or subsidiary thereof and on any other Person, other than in the terms hereof without the consent ordinary course of the Required Consenting Creditorsbusiness;
(jh) seeksplit, solicitcombine, supportor reclassify any of their respective Equity Interests, fileor declare, encourageset aside or pay any dividend or other distribution payable in cash, proposestock, assistproperty, consent toor otherwise material with respect to any of their respective Equity Interests; provided, vote forthat nothing in this Section 7.02(h) shall apply to those certain dividends, enter any agreement with any person regardingdistributions, pursue or consummate, any Alternative Restructuring Proposal, subject and other payments described in all respects to Section 8.01 hereof;
(k5.01(iv)(A)–(B) except with the consent of the Required Consenting Creditors, PNW Sale Agreement; or
(i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties with respect to Transfer any of the Company Parties’ securitiesactions set forth on Schedule 7.02(i) (the “Specified Material Actions”) absent prior consultation with, includingand prior reasonable consent of, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholdingNoteholders.
Appears in 1 contract
Samples: Restructuring Support Agreement (Frontier Communications Corp)
Negative Commitments. Except as set forth in Section 87, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action that would reasonably be expected to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in in, this Agreement or the PlanAgreement;
(c) seek to amend or modify the PlanDefinitive Documents, in whole or in part, in a manner that is not consistent inconsistent with this Agreement in all material respectsAgreement;
(d) file any motion, pleading, or Definitive Documents other document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) amend(i) consummate or enter into a definitive agreement evidencing, alteror file one or more motion or application seeking authority to consummate or enter into, supplementany merger, restate consolidation, disposition of material assets, acquisition or otherwise modify any Definitive Documents in a manner materially inconsistent with this Agreement;
(f) take sale of material assets, or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Codesimilar transaction, (2ii) realization of make any taxable income outside the ordinary course of the Company Parties’ businessmaterial investments, (iii) pay any dividend, or (3iv) change incur any indebtedness for borrowed money, in the classification of any Company Party for U.S. federal income tax purposes;
each case (gx) operate its business or make any payments outside the ordinary course of business, taking into account (y) in excess of $2,000,000 in the aggregate, or (z) other than as contemplated by this Agreement and the Restructuring Transactions, without the consent of unless the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheldStakeholders have provided prior written consent;
(hf) amend, terminate, terminate or modify any agreement, document, instrument, indenture, indenture or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting CreditorsStakeholders;
(ig) engage in seek the application of the equitable doctrine of marshaling, section 506(c) of the Bankruptcy Code or section 552(b) of the Bankruptcy Code with respect to any mergerof the Prepetition LC Facility Claims or the 1L Notes or 2L Notes;
(h) make, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtednessmodify, or amend (other similar transaction outside of than in the ordinary course of business, other than as required by law or as permitted, required or contemplated as part of the transactions contemplated herein and on Restructuring Transactions or in the terms hereof Definitive Documents) a material tax election, including a tax classification election (or any deemed tax classification election through an amendment of a Company Party’s organizational documents or the conversion of a Company Party to a different entity classification for U.S. federal income tax purposes), without the written consent of the Required Consenting CreditorsStakeholders, not to be unreasonably withheld, conditioned or delayed;
(i) (i) seek discovery in connection with, or prepare or commence an avoidance action or other legal proceeding that challenges, (A) the amount, validity, allowance, character, enforceability or priority of any Company Claims/Interests of any of the Consenting Stakeholders or (B) the validity, enforceability or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Stakeholders or (ii) support any third party in connection with any of the acts described in clause (i) of this paragraph;
(j) seek, solicitcommence, support, file, encourage, propose, assist, consent to, vote for, enter or join any agreement with litigation or adversary proceedings against any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereofConsenting Stakeholder;
(k) except with incur any liens or security interest, or encumbrance other than: (i) those existing immediately prior to the date hereof, (ii) those permitted pursuant to the DIP TLC Facility, or (iii) those granted under or permitted by the DIP TLC Orders and Cash Collateral Orders;
(l) make any payment in satisfaction of any existing funded indebtedness other than as contemplated by the Restructuring Transactions and outside the ordinary course of business;
(m) cause any Company Party that is a Debtor to pay any tax on behalf of any Company Party that is not a Debtor (or to transfer any amount to such non-Debtor Company party to pay such tax) in excess of $1,000,000 without the prior written consent of the Required Consenting CreditorsStakeholders (not to be unreasonably withheld, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order conditioned or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Partiesdelayed); or
(ln) treat except as contemplated by this Agreement, the RSA Premium paid Plan, or pursuant to the Consenting Creditors as subject Restructuring Transactions, issue, sell, pledge, dispose of or encumber any additional shares of, or any options, warrants, conversion privileges or rights of any kind to U.S. federal income tax withholdingacquire any shares of, any of its Interests, including capital stock or limited liability company interests.
Appears in 1 contract
Negative Commitments. Except as set forth in Section 87 of this Agreement, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation implementation, and consummation of the Restructuring Transactions described in this Agreement or the Plan;
(c) modify the PlanPlan Documents, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) amend, alter, supplement, restate withdraw or otherwise modify any Definitive Documents in a manner materially inconsistent with this Agreementrevoke the Plan or publicly announce its intention not to pursue the Plan;
(f) take move for an order authorizing or permit any action that would result in directing the assumption or rejection of a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, Material Executory Contract or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, Unexpired Lease without the consent of the Required Consenting CreditorsRevolving Lenders, such which consent shall not to be unreasonably withheld or (ii) transfer any asset or right of withheld, and in consultation with the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of Required Ad Hoc Term Loan Lender Group, and the Required Consenting CreditorsTerm Loan Lenders;
(g) commence an avoidance action or other legal proceeding that challenges the validity, such consent not to be unreasonably withheldenforceability or priority of the obligations under the Credit Agreement;
(h) amendcommence, terminatesupport, or modify join any agreement, document, instrument, indenture, litigation or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without adversary proceeding against the consent of the Required Consenting CreditorsStakeholders;
(i) engage in issue, sell, pledge, dispose of or encumber any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtednessadditional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, any of its Equity Interests, including capital stock or limited liability company interests;
(j) amend or propose to amend its respective certificate or articles of incorporation, bylaws or comparable organizational documents in a manner inconsistent with this Agreement or the Plan;
(k) split, combine or reclassify any outstanding shares of its capital stock or other similar transaction outside Equity Interests, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to any of its Equity Interests;
(l) redeem, purchase, or acquire or offer to acquire any of its Equity Interests, including capital stock or limited liability company interests;
(m) enter into any commitment or agreement with respect to debtor-in-possession financing, cash collateral, and/or exit financing other than the facilities contemplated under the DIP Facility, the Exit Financing Documents, the Plan Documents, this Agreement, the Plan, or the Term Sheets;
(n) incur or suffer to exist any indebtedness or debt, or guarantee any indebtedness or enter into any “keep well” or other agreement to maintain any financial condition of another person, except indebtedness existing and outstanding immediately before the Petition Date, trade payables, liabilities arising and incurred in the ordinary course of business, other than and indebtedness arising under the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting CreditorsDIP Facility;
(jo) seekchange materially its financial or tax accounting methods, solicitexcept insofar as may have been required by a change in GAAP or applicable law, support, file, encourage, propose, assist, consent to, vote for, enter or revalue any agreement with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereofof its material assets;
(kp) except other than with respect to the consent of Amended Management Employment Agreements, enter into, adopt or amend any other management employment agreements or management compensation or incentive plans, or increase in any manner the Required Consenting Creditors, compensation or benefits (iincluding severance) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order director, officer, or restricts the ability management level employee of Consenting Creditors or other parties to Transfer any of the Company Parties’ securitiesParties or enter into or amend any existing employee agreements or any benefit or compensation plans, including, for except in the avoidance ordinary course of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination business consistent with respect to (a) any such Transfer restriction, sell-down orderpast practices in each case, or notification requirement regarding ownership of claims in order to determine whether further actions except as may be expressly permitted under this Agreement or the Plan; and
(including Transfer restrictions q) incur any liens or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent security interest, other than those existing immediately prior to the filing by date hereof, those permitted under the Company Parties of a motion restricting trading of equity securities whichDIP Facility, for or those granted under the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholdingDIP Facility.
Appears in 1 contract
Samples: Plan Support Agreement (Vanguard Natural Resources, Inc.)
Negative Commitments. Except as set forth in Section 87.03, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in in, this Agreement Agreement, the Plan, or the PlanDefinitive Documents;
(c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent inconsistent with this Agreement or the PlanRestructuring Transactions;
(d) amend, alter, supplement, restate or otherwise modify any Definitive Document, in whole or in part, in a manner that is materially inconsistent with this Agreement or the Restructuring Transactions;
(e) amend, alter, supplement, restate or otherwise modify any Definitive Documents Elk Hills Power Agreements, in whole or in part, in a manner that is materially inconsistent with this Agreement;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, Term Sheet without the consent of the Required Consenting CreditorsCreditors and Ares;
(i) operate its business outside the ordinary course (other than any changes in the operations resulting from or relating to the Restructuring Transactions or the filing of the Chapter 11 Cases), such consent not to be unreasonably withheld taking into account the Restructuring Transactions or (ii) engage in any material merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction or transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business business, in each of cases (i) and (ii) without the reasonable consent of the Required Consenting CreditorsCreditors and, such prior to the Settlement Effective Date, Ares; provided that, from and after the Settlement Effective Date, any action described in subsections (i) or (ii) of this section 7.02(f) that disproportionately and adversely affects Ares, as compared to the other Required Consenting Parties, shall require the reasonable consent not of Ares.
(g) except to be unreasonably withheldthe extent required by this Agreement or otherwise required to consummate the Restructuring Transactions, make or change any tax election, change any annual tax accounting period, adopt or change any method of tax accounting, file any amended tax return, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund, offset or other reduction in tax liability or consent to any extension or waiver of the limitation period applicable to any tax claim or assessment, in each case without the reasonable consent of the Required Consenting Creditors and, prior to the Settlement Effective Date, Ares; provided that, from and after the Settlement Effective Date, any action described in this Section 7.02(g) that disproportionately and adversely affects Ares, as compared to the other Required Consenting Parties, shall require the reasonable consent of Ares;
(h) amendsupport any effort to reject, terminateseek to modify, fail to perform, or modify any agreementway take any action to delay, document, instrument, indentureimpede, or other writing evidencing interfere with any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting CreditorsElk Hills Power Agreements except to the extent consistent with the 9019 Orders;
(i) engage develop, promote or otherwise pursue the “bypass plan” involving the LTS-1 and LTS-2 gas processing plants and the 35R Cogen facility located in Xxxx County, California or any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other action with a similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditorseffect;
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to (A) the filing by the Company Parties of a motion with the Bankruptcy Court for entry of an order establishing the date of the entrance of such order as the record date for notice of such potential trading restriction or sell-down order with respect to Company Claims and (B) the filing by the Company Parties of a motion restricting trading of CRC’s equity securities which, for the avoidance of doubt, do not include Claims against the Company PartiesClaims; or
(lk) treat object to, delay, impede, file any motion or pleading with the RSA Premium paid Bankruptcy Court or any other court or take any other action (or direct any of the Agents or the Second Lien Indenture Trustee to take any such action) to require or compel any holder of 2016 Term Loan Claims or Second Lien Notes Claims to turn over any recoveries or distributions under the Consenting Creditors as subject Plan pursuant to U.S. federal income tax withholdingany applicable intercreditor agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Negative Commitments. Except as set forth in Section 87.03, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in in, this Agreement Agreement, the Plan, or the PlanDefinitive Documents;
(c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent inconsistent with this Agreement or the PlanRestructuring Transactions;
(d) amend, alter, supplement, restate or otherwise modify any Definitive Document, in whole or in part, in a manner that is materially inconsistent with this Agreement or the Restructuring Transactions;
(e) amend, alter, supplement, restate or otherwise modify any Definitive Documents Elk Hills Power Agreements, in whole or in part, in a manner that is materially inconsistent with this Agreement;
(f) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, Term Sheet without the consent of the Required Consenting CreditorsCreditors and Ares;
(f) (i) operate its business outside the ordinary course (other than any changes in the operations resulting from or relating to the Restructuring Transactions or the filing of the Chapter 11 Cases), such consent not to be unreasonably withheld taking into account the Restructuring Transactions or (ii) engage in any material merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction or transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business business, in each of cases (i) and (ii) without the reasonable consent of the Required Consenting CreditorsCreditors and, such prior to the Settlement Effective Date, Ares; provided that, from and after the Settlement Effective Date, any action described in subsections (i) or (ii) of this section 7.02(f) that disproportionately and adversely affects Ares, as compared to the other Required Consenting Parties, shall require the reasonable consent not of Ares.
(g) except to be unreasonably withheldthe extent required by this Agreement or otherwise required to consummate the Restructuring Transactions, make or change any tax election, change any annual tax accounting period, adopt or change any method of tax accounting, file any amended tax return, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund, offset or other reduction in tax liability or consent to any extension or waiver of the limitation period applicable to any tax claim or assessment, in each case without the reasonable consent of the Required Consenting Creditors and, prior to the Settlement Effective Date, Ares; provided that, from and after the Settlement Effective Date, any action described in this Section 7.02(g) that disproportionately and adversely affects Ares, as compared to the other Required Consenting Parties, shall require the reasonable consent of Ares;
(h) amendsupport any effort to reject, terminateseek to modify, fail to perform, or modify any agreementway take any action to delay, document, instrument, indentureimpede, or other writing evidencing interfere with any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting CreditorsElk Hills Power Agreements except to the extent consistent with the 9019 Orders;
(i) engage develop, promote or otherwise pursue the “bypass plan” involving the LTS-1 and LTS-2 gas processing plants and the 35R Cogen facility located in Xxxx County, California or any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other action with a similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;effect; or
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to (A) the filing by the Company Parties of a motion with the Bankruptcy Court for entry of an order establishing the date of the entrance of such order as the record date for notice of such potential trading restriction or sell-down order with respect to Company Claims and (B) the filing by the Company Parties of a motion restricting trading of CRC’s equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholdingClaims.
Appears in 1 contract
Samples: Restructuring Support Agreement (California Resources Corp)
Negative Commitments. Except as set forth in Section 87, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in in, this Agreement or Agreement, the Plan, the Restructuring Term Sheet, or any other Definitive Document;
(c) modify or supplement any Definitive Document (including the Plan), in whole or in part, in a manner that is not consistent with this Agreement inconsistent in all any material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) amend, alter, supplement, restate or otherwise modify any Definitive Documents in a manner materially inconsistent respect with this Agreement;
(fd) take or permit any action that would result in a (1) change of ownership of any Company Party under Section 382 of to the Internal Revenue Codeextent inconsistent with this Agreement, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) transfer any asset or right of the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the consent of the Required Consenting Creditors, such which consent shall not to be unreasonably withheld, conditioned, or delayed;
(e) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is inconsistent in any material respect with this Agreement or the Restructuring Term Sheet;
(f) incur any liens or security interests, except as permitted under the DIP Orders;
(g) enter into any commitment or agreement with respect to debtor in possession financing or the use of cash collateral other than the DIP Term Loan Credit Agreement and the DIP Revolving Loan Credit Agreement unless such commitment or agreement satisfies the DIP Term Loan Credit Agreement and the DIP Revolving Loan Credit Agreement obligations in full in cash and such commitment or agreement complies in all respects with this Agreement;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
(i) , which consent shall not be unreasonably withheld, engage in any merger, consolidation, material disposition, material asset sale, acquisition, investment, dividend, incurrence of indebtedness, indebtedness or other similar transaction outside of the ordinary course of business, business other than the transactions contemplated herein and on the terms hereof without the consent Restructuring Transactions;
(i) commence, support or join any litigation or adversary proceeding against any of the Required Consenting Creditors;; or
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regarding, pursue propose or consummate, any support an Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholding.
Appears in 1 contract
Samples: Restructuring Support Agreement (Centric Brands Inc.)
Negative Commitments. Except as set forth in Section 8, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action that is inconsistent with or would to frustrate or interfere with acceptance, approval, implementation, or consummation of the Restructuring TransactionsTransactions or otherwise commence any proceeding opposing any of the terms of this Agreement or any of the other Definitive Documents;
(b) take any action that is inconsistent in any material respect withamend, terminate or is intended to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in this Agreement or the Plan;
(c) modify the PlanDefinitive Documents, in whole or in part, in a manner that is not consistent in all respects with this Agreement in all material respectsAgreement;
(dc) file File any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(ed) amendseek, altersolicit, supplementsupport, restate encourage propose, consent to, vote for, or otherwise modify enter into any Definitive Documents in a manner materially inconsistent with this Agreementagreement regarding any Alternative Restructuring Proposal;
(fe) take Consummate or permit enter into a definitive agreement evidencing any action that would result in a (1) change merger, consolidation, disposition of ownership material assets, acquisition of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ businessmaterial assets, or (3) change similar transaction, pay any dividend, incur any indebtedness for borrowed money, in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments each case outside the ordinary course of business, taking into account in each case other than: (i) the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld Transactions or (ii) transfer any asset or right of with the Company Parties or any asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business without the prior consent of Highbridge and the Required Consenting Creditors, such consent not to be unreasonably withheldUnsecured Noteholders;
(hf) amend, terminate, terminate or modify any agreement, document, instrument, indenture, indenture or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of Highbridge and the Required Consenting CreditorsUnsecured Noteholders;
(g) except to the extent required by this Agreement or otherwise required to consummate the Restructuring Transactions, make or change any tax election, change any annual tax accounting period, adopt or change any method of tax accounting, file any amended tax return, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund, offset or other reduction in tax liability or consent to any extension or waiver of the limitation period applicable to any tax claim or assessment that would materially affect the Company Parties or Highbridge, in each case without the reasonable consent of Highbridge and the Required Consenting Unsecured Noteholders;
(h) (i) seek discovery in connection with, or prepare or commence an avoidance action or other legal proceeding that challenges, (A) the amount, validity, allowance, character, enforceability or priority of any Company Claims/Interests of any of the Consenting Stakeholders or (B) the validity, enforceability or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Stakeholders or (ii) support any third party in connection with any of the acts described in clause (i) of this paragraph;
(i) engage allege or support any claim or Cause of Action that the Respiratory Business Asset Sale Transaction is not an arm’s length transaction or that the consideration provided by Ventec to Invacare in any merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, other than Respiratory Business Asset Sale Agreement does not represent reasonably equivalent value for the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditorsassets sold pursuant thereto;
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter allege or support any agreement with claim that (x) any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
Transaction Documents (k) except with the consent of the Required Consenting Creditors, (i) take any action that would result as defined in the entry Respiratory Business Asset Purchase Agreement) or any rights of any order by setoff contained therein do not “ride through” the Bankruptcy Court that imposes a sell-down order or restricts the ability Chapter 11 Cases unimpaired and without further action required of Consenting Creditors or other parties to Transfer any of the Company Parties’ securitiesVentec, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (iiy) make that any material determination with respect to (a) Transaction Documents or any such Transfer restrictionrights of setoff contained therein are barred by any injunction, sell-down order, release or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Parties; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholding.otherwise;
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Negative Commitments. Except as set forth in Section 87, during the Agreement Effective Period, each of the Company Parties shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation implementation, and consummation of the Restructuring Transactions described in in, this Agreement or the Plan;
(c) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;
(e) solicit, initiate, endorse, propose, file, support, approve, or otherwise promote or advance any Alternative Restructuring Proposal. For the avoidance of doubt, actions taken by the Company as part of the PWP Marketing Process, or otherwise in accordance with the Bidding Procedures (which such procedures shall be in form and substance acceptable to the Required Consenting Term Loan Lenders) shall not be a violation of this Section 6.02(e);
(f) sell, or file any motion or application seeking to sell, any material assets, other than in the ordinary course of business, without the prior written consent of the Required Consenting Stakeholders (which may be by email);
(g) other than as provided in this Agreement and the Restructuring Term Sheet, amend any of their corporate governance or organizational documents without the prior written consent of the Required Consenting Stakeholders (which may be by email), not to be unreasonably withheld;
(h) other than in the ordinary course of business or as required by Law or regulation, (i) enter into or amend, alterestablish, adopt, restate, supplement, restate or otherwise modify or accelerate (x) any Definitive Documents deferred compensation, incentive, success, retention, bonus, or other compensatory arrangements, policies, programs, practices, plans, or agreements, including, without limitation, offer letters, employment agreements, consulting agreements, severance arrangements, or change in control arrangements with or for the benefit of Named Executive Officers and Directors, or (y) any contracts, arrangements, or commitments that entitle any Named Executive Officers and Directors to indemnification from the Company Parties, or (ii) amend or terminate any existing compensation or benefit plans or arrangements (including employment agreements), in each case without the prior written consent of the Required Consenting Stakeholders (which may be by email);
(i) other than in the ordinary course of business, (i) enter into any settlement regarding any Claims or Equity Interests, (ii) enter into any material agreement that is materially inconsistent with this Agreement, (ii) amend, supplement, modify, or terminate any material agreement in a manner way that is materially inconsistent with this Agreement, (iii) knowingly allow any material agreement to expire if such expiration would frustrate or impede consummation of the Restructuring Transactions, or (iv) knowingly allow any material permit, license or regulatory approval to lapse, expire, terminate or be revoked, suspended or modified, in each case without the prior written consent of the Required Consenting Stakeholders (which may be by email);
(j) file with any court any motion, pleading, or Definitive Document (including any modifications or amendments thereto) that, in whole or in part, is materially inconsistent with this Agreement;
(fi) take operate its business outside the ordinary course, other than the Restructuring Transactions, or permit any action that would result (ii) other than in a (1) change of ownership of any Company Party under Section 382 of the Internal Revenue Code, (2) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (3) change in the classification of any Company Party for U.S. federal income tax purposes;
(g) operate its business or make any payments outside the ordinary course of business, taking into account the Restructuring Transactions, without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld or (ii) as contemplated by this Agreement transfer any material asset or right of the Company Parties (or its Affiliates) or any material asset or right used in the business of the Company Parties (or its Affiliates) to any person or entity outside entity;
(l) other than in the ordinary course of business without the consent of the Required Consenting Creditors, such consent not to be unreasonably withheld;
(h) amend, terminate, or modify any agreement, document, instrument, indenture, or other writing evidencing any indebtedness or prepay, repay, redeem, defease, purchase, acquire, terminate, or discharge any such indebtedness without the consent of the Required Consenting Creditors;
(i) as contemplated by this Agreement engage in any material merger, consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business, other than the transactions contemplated herein and on the terms hereof without the consent of the Required Consenting Creditors;
(j) seek, solicit, support, file, encourage, propose, assist, consent to, vote for, enter any agreement with any person regarding, pursue or consummate, any Alternative Restructuring Proposal, subject in all respects to Section 8.01 hereof;
(k) except with the consent of the Required Consenting Creditors, (i) take any action that would result in the entry of any order by the Bankruptcy Court that imposes a sell-down order or restricts the ability of Consenting Creditors or other parties to Transfer any of the Company Parties’ securities, including, for the avoidance of doubt, any such order intended to preserve net operating losses or other tax attributes or (ii) make any material determination with respect to (a) any such Transfer restriction, sell-down order, or notification requirement regarding ownership of claims in order to determine whether further actions (including Transfer restrictions or sell-down orders) are necessary or (b) the potential imposition or waiver of any of the foregoing; provided that the Required Consenting Creditors shall consent to the filing by the Company Parties of a motion restricting trading of equity securities which, for the avoidance of doubt, do not include Claims against the Company Partiestransaction; or
(l) treat the RSA Premium paid to the Consenting Creditors as subject to U.S. federal income tax withholding.
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Samples: Restructuring Support Agreement (Vertex Energy Inc.)
