Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Party agrees, severally and not jointly, that it shall use commercially reasonable efforts to: (i) negotiate in good faith, execute, perform its obligations under, and consummate the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated herein; (ii) support the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents and take all reasonable actions necessary or reasonably requested by the Company to effectuate the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents, in a manner consistent with this Agreement, including the timelines set forth herein; (iii) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or any agreement with any non-Party regarding, any Alternative Transaction; (iv) support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement); (v) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement; (vi) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such election; (vii) support and take all commercially reasonable actions reasonably requested by the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the Plan; (viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent or indenture trustee (as applicable) to cease and refrain from taking any such action; and (ix) to the extent any legal or structural impediment arises that would prevent, hinder or delay the consummation of the Plan, negotiate with the Consenting Parties in good faith appropriate additional or alternative provisions to address any such impediment; provided that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoing, nothing in this Agreement shall prohibit any Consenting Party from (1) appearing as a party-in-interest in any matter arising in the Chapter 11 Cases or (2) enforcing any right, remedy, condition, consent, or approval requirement under this Agreement or any Definitive Documents, provided that, in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as contemplated by the Term Sheet.
Appears in 2 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement (Hexion Inc.)
Restructuring Support. During the Support Period, subject to the terms and conditions hereofhereof (including, each without limitation, Section 10), and except as expressly waived by the Required Consenting Party agreesParties in writing from time to time, severally and not jointly, the Company agrees that it shall use commercially reasonable efforts, and shall use commercially reasonable efforts to cause each of its subsidiaries to, without limitation:
(i) negotiate implement the Restructuring in good faith, execute, perform its obligations under, accordance with the terms and consummate the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated conditions set forth herein;
(ii) support implement and consummate the Plan in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the transactions Plan, as contemplated by under this Agreement, the Term Sheet and the Definitive Documents and take all reasonable actions necessary or reasonably requested by the Company to effectuate the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents, in a manner consistent with this Agreement, including the timelines set forth herein;
(iii) notupon reasonable request, directly inform the legal and financial advisors to the Ad Hoc Groups as to: (A) the material business and financial (including liquidity) performance of the Company Entities; (B) the status and progress of the negotiations of the Definitive Documents; and (C) the status of obtaining any necessary or indirectlydesirable authorizations (including consents) from any competent judicial body, seekgovernmental authority, solicitbanking, supporttaxation, encourage, propose, assist, consent to, vote forsupervisory, or enter or participate in any discussions regulatory body or any agreement with any non-Party regarding, any Alternative Transactionstock exchange;
(iv) support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(v) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(vi) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such election;
(vii) support and take all commercially reasonable actions reasonably requested by the Company necessary to facilitate the implementation andsolicitation, if confirmation, and consummation of the Plan, as applicable, approval of and the Disclosure Statement and transactions contemplated thereby, (B) not take any action directly or indirectly that is materially inconsistent with, or that would reasonably be expected to prevent, interfere with, delay, or impede the confirmation and consummation of the Plan, and (C) not, nor encourage any other person to, take any action which would, or would reasonably be expected to, breach or be inconsistent with this Agreement or delay, impede, appeal, or take any other negative action, directly or indirectly, to interfere with the acceptance or implementation of the Plan;
(viiiv) not direct maintain good standing under the laws of the state in which each Company Entity is incorporated or organized;
(vi) if the Company knows of a material breach by any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with Consenting Party of such Consenting CreditorParty’s representations or warranties set forth in this Agreement or of a breach by any Consenting Party of such Consenting Party’s obligations under or covenants set forth in this Agreement, and, if furnish prompt written notice (and in any applicable administrative agent, collateral agent or indenture trustee (as applicable) takes any action inconsistent with event within three business days of such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision of any indemnityactual knowledge) to direct such administrative agent, collateral agent or indenture trustee (as applicable) counsel to cease and refrain from taking any such action; andthe Ad Hoc Groups;
(ixvii) to the extent any legal or structural impediment arises that would prevent, hinder hinder, or delay the consummation of the PlanRestructuring contemplated herein, negotiate with the Consenting Parties in good faith appropriate additional or alternative provisions support and take all steps reasonably necessary and desirable to address any such impediment; provided that ;
(viii) prepare or cause to be prepared the economic outcome Definitive Documents (including, without limitation, all relevant motions, applications, orders, agreements and other documents), each of which, for the avoidance of doubt, shall contain terms and conditions consistent with this Agreement, and use good faith efforts to provide draft copies of all Definitive Documents at least two (2) business days prior to the date when the Company intends to file or execute such document and shall consult in good faith with such parties regarding the form and substance of such Definitive Document or any such proposed filing with the Bankruptcy Court. The Company will provide draft copies of all other material pleadings the Company intends to file with the Bankruptcy Court to counsel to the Ad Hoc Groups, no later than two (2) business days prior to filing such pleading to the extent reasonably practicable and shall consult in good faith with such counsel regarding the form and substance of any such proposed pleading;
(ix) file such “first day” motions and pleadings determined by the Company to be necessary, in form and substance reasonably acceptable to the Required Consenting Creditors First Lien Noteholders, the Required Consenting 1.5L Noteholders and other materials terms of this Agreement must be substantially preserved the Required Consenting Crossholder Noteholders, and to seek interim and final (to the extent necessary) orders, in form and substance reasonably acceptable to the Required Consenting First Lien Noteholders, the Required Consenting 1.5L Noteholders and the Required Consenting Crossholder Noteholders, from the Bankruptcy Court approving the relief requested in such alternate provisions. Notwithstanding “first day” motions;
(x) timely file a formal objection, in form and substance reasonably acceptable to the foregoingRequired Consenting First Lien Noteholders, nothing the Required Consenting 1.5L Noteholders and the Required Consenting Crossholder Noteholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (A) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in this Agreement shall prohibit any Consenting Party from sections 1106(a)(3) and (14) appearing as a party-in-interest in any matter arising in of the Bankruptcy Code), (B) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (2C) enforcing dismissing the Chapter 11 Cases;
(xi) not seek or solicit any right, remedy, condition, consent, or approval requirement Alternative Transaction;
(xii) support and complete the Restructuring and all other actions contemplated in connection therewith and under this Agreement or any the Definitive Documents, provided thatincluding support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the Restructuring;
(xiii) timely file a formal objection, in each caseform and substance reasonably acceptable to the Required Consenting First Lien Noteholders, the Required Consenting 1.5L Noteholders and the Required Consenting Crossholder Noteholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a plan reorganization, as applicable; and
(xiv) (A) operate the business of the Company and its direct and indirect subsidiaries in the ordinary course in a manner that is consistent with this Agreement, past practices, and to preserve intact the Company’s business organization and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees, (B) subject to applicable non-disclosure agreements and the terms thereof, keep advisors to the Ad Hoc Groups reasonably informed about the operations of the Company and its direct and indirect subsidiaries, and (C) promptly notify advisors to the Ad Hoc Groups of any material governmental or third party complaints, litigations, investigations or hearings; and
(xv) provide prompt written notice to counsel to the Ad Hoc Groups between the date hereof and the Effective Date of (A) the occurrence of a Termination Event; (B) any matter or circumstance which the Company knows, or suspects is likely, to be a material impediment to the implementation or consummation of the Restructuring; or (C) if any Person has challenged the validity or priority of, or has sought to avoid, any such action is not inconsistent lien securing the 1L Notes, the 1.5L Notes or the 2L Notes pursuant to a pleading filed with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as contemplated by the Term SheetBankruptcy Court.
Appears in 2 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement (Hexion Inc.)
Restructuring Support. During the Support Period, subject to the terms and conditions hereofhereof (including Section 10 of this Agreement), each Consenting Party agrees, severally and not jointly, the Company agrees that it shall, and shall use commercially reasonable efforts cause each of its subsidiaries, to:
(i) negotiate implement the Restructuring and/or the Sale Process in good faith, execute, perform its obligations under, accordance with the terms and consummate the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated conditions set forth herein;
(ii) support implement and consummate the Plan Restructuring and/or the Sale Transaction in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the transactions Restructuring and/or the Sale Process, as contemplated by under this Agreement;
(iii) upon reasonable request, inform the Term Sheet Lender Advisors as to: (A) the material business and financial (including liquidity) performance of the Definitive Documents Company Entities; and (B) the status of obtaining any necessary or desirable authorizations (including consents) from each Consenting Prepetition Lender, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(iv) without interfering with the Restructuring and/or the Sale Process, (A) support and take all commercially reasonable actions necessary or and appropriate, including those actions reasonably requested by the Required Consenting Lenders or the Prepetition Agent to facilitate the Restructuring and/or the Sale Transaction, and the other transactions contemplated thereby, in accordance with this Agreement within the timeframes contemplated herein; (B) not take any action directly or indirectly that is materially inconsistent with, or is intended to, or that would reasonably be expected to prevent, interfere with, delay, or impede, the Restructuring and/or the Sale Transaction, or any Definitive Document; (C) not, nor encourage any other person to, take any action which would reasonably be expected to breach or otherwise be inconsistent with this Agreement in any material respect or materially delay or impede, appeal, or take any other negative action, directly or indirectly, to materially interfere with the Restructuring and/or the Sale Transaction, or any Definitive Document; and (D) seek approval from the Bankruptcy Court of the Bidding Procedures, the DIP Orders, the Disclosure Statement Order, the Confirmation Order, and/or the Sale Order and within the timeframes contemplated in this Agreement;
(v) maintain good standing under the laws of the state or other jurisdiction in which each Company Entity or subsidiary is incorporated or organized;
(vi) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring and/or the Sale Process contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment and to effectuate the Plan and the transactions contemplated by Restructuring in accordance with this Agreement;
(vii) not take any action, the Term Sheet and the Definitive Documentsnot encourage any other person or entity to, in a manner consistent take any action, directly or indirectly, that would reasonably be expected to breach or otherwise be inconsistent with this Agreement, including or take any other action, directly or indirectly, that would reasonably be expected to interfere with the timelines set forth hereinimplementation of the Restructuring and/or the Sale Process or the Agreement;
(viii) provide to the Lender Advisors draft copies of all Definitive Documents and all other pleadings, motions, declarations, supporting exhibits and proposed orders and any other material document that the Company intends to file with the Bankruptcy Court, to the extent reasonably practicable, at least three calendar days prior to the date when the Company intends to file or execute such documents and consult in good faith with such counsel regarding the form and substance of such documents;
(ix) timely file a formal objection, in form and substance reasonably acceptable to the Consenting Prepetition Lenders, to any motion or request filed with the Bankruptcy Court by a third party seeking the entry of an order (A) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (B) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (C) dismissing the Chapter 11 Cases;
(x) support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the Restructuring and/or the Sale Transaction and to cooperate with any efforts undertaken by the Consenting Prepetition Lenders with respect to obtaining any required regulatory or third-party approvals in connection with the Restructuring and/or the Sale Process; actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring and/or the Sale Transaction (including, if applicable, the filing of timely filed objections or written responses) to the extent such opposition or objection is reasonably necessary to facilitate implementation of the Restructuring and/or the Sale Process;
(xi) consult and negotiate in good faith with the Consenting Prepetition Lenders and the Lender Advisors regarding the execution of Definitive Documents and the implementation of the Restructuring and/or the Sale Process;
(xii) timely file a formal objection, in form and substance reasonably acceptable to the Consenting Prepetition Lenders, to any motion or request filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a plan reorganization;
(xiii) provide prompt written notice to the Lender Advisors during the Support Period (A) of the occurrence of a Termination Event; or (B) if any person has challenged the validity or priority of, or has sought to avoid, any lien securing the Prepetition Term Loans pursuant to a pleading filed with the Bankruptcy Court;
(xiv) inform the Consenting Prepetition Lenders promptly after becoming aware of: (i) any matter or circumstance which they know, or believe is likely, to be a material impediment to the implementation or consummation of the Restructuring and/or the Sale Process; (ii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit for payment of debt, or securement of security from or by any person in respect of any Company Entity; (iii) a material breach of this Agreement by any Company Entity; and (iv) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made;
(xv) use commercially reasonable efforts to seek additional support for the Restructuring and/or the Sale Process from their other material stakeholders to the extent the Company deems reasonably prudent; and
(xvi) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or into any agreement with any non-Party regarding, any Alternative Transaction;
(iv) support and take all reasonable actions reasonably requested by ; provided that, if the Company to facilitate entry receives a written or oral proposal or expression of the DIP Orders (including adequate protection terms contained therein)interest regarding any Alternative Transaction, the Disclosure Statement Order, and Company shall notify (email being sufficient) the Confirmation OrderLender Advisors of any such proposal or expression of interest, including consenting to the Company’s use of cash collateralmaterial terms thereof, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(v) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(vi) subject to no later than 48 hours after the receipt of the Disclosure Statement and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such election;
(vii) support and take all commercially reasonable actions reasonably requested by the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the Plan;
(viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent or indenture trustee (as applicable) to cease and refrain from taking any such action; and
(ix) to the extent any legal proposal or structural impediment arises that would prevent, hinder or delay the consummation expression of the Plan, negotiate with the Consenting Parties in good faith appropriate additional or alternative provisions to address any such impediment; provided that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoing, nothing in this Agreement shall prohibit any Consenting Party from (1) appearing as a party-in-interest in any matter arising in the Chapter 11 Cases or (2) enforcing any right, remedy, condition, consent, or approval requirement under this Agreement or any Definitive Documents, provided that, in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as contemplated by the Term Sheetinterest.
Appears in 1 contract
Samples: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Party agrees, severally and not jointly, the Company agrees that it shall use commercially reasonable efforts toshall:
(i) negotiate in good faithuse commercially reasonable efforts to approve, execute, perform its obligations underimplement, and consummate the transactions Restructuring in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring, as contemplated byunder this Agreement and the Plan; provided, that the Definitive Documents Company shall not consummate the Restructuring unless and until all of the conditions to which it is the effectiveness thereof set forth herein and in the Plan and the Disclosure Statement have been satisfied (or will bebe satisfied contemporaneously with the consummation of the Restructuring) a party, at such times as are contemplated hereinor waived with prior written consent and in accordance with Section 10 hereof;
(ii) support the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents and take all reasonable actions necessary or reasonably requested by the Company Consenting Creditors to effectuate facilitate consummation of the Plan Restructuring and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents, in a manner consistent with this Agreement, including the timelines set forth hereinthereby;
(iii) not, not directly or indirectly, seekindirectly (A) propose, solicit, file, support, encourage, propose, assistvote for, consent to, vote forencourage, or enter or participate in any discussions or any agreement with any non-Party regarding, or take any other action in furtherance of the negotiation or formulation of any Alternative Transaction;
Transaction other than the Restructuring; (ivB) otherwise support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein)any reorganization, the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(v) not, directly or indirectlyRestructuring, or encourage sale process proposed by any other Person to, directly entity that is inconsistent with this Agreement or indirectly, the Plan; (AC) object to, delay, postpone, challenge, oppose, impede, or take any other action that is inconsistent with, or any inaction to that would delay, interfere with with, or delay obstruct the acceptanceproposal, implementationsolicitation, confirmation, or consummation of the Plan on the terms set forth Restructuring, including engaging in this Agreementany legal proceeding to object to or interfere with, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing acceptance or joining with any Person implementation of the Restructuring in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file accordance with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this AgreementPlan; or (D) object encourage any other person to or opposetake any action which would, or support would reasonably be expected to breach or be inconsistent with this Agreement or the Plan or delay, impede, interfere with, appeal, or take any other Person’s efforts negative action, directly or indirectly, with respect to object to or oppose, any motions filed by implementation of the Restructuring;
(iv) maintain good standing under the laws of the jurisdiction in which the Company is incorporated;
(v) provide draft copies of all substantive motions, applications, orders, or other documents the Company intends to file with the applicable court to counsel to the Consenting Creditors at least three (3) business days prior to the date when the Company intends to file or execute such documents, and shall consult in good faith with such parties regarding the form and substance of any proposed filing with the applicable court; provided, that are consistent with this Agreementthe Company shall not be required to provide draft retention applications;
(vi) subject file such motions, applications, and pleadings reasonably determined by the Company to be necessary or appropriate, such filings or other documents shall be in form and substance reasonably acceptable to the receipt of the Disclosure Statement Consenting Creditors, and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan seek interim and final (to the extent permitted necessary) orders, in form and substance reasonably acceptable to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause Creditors, from the court approving the relief requested in such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such electionmotions;
(vii) support provide to the Consenting Creditors and/or their respective professionals, upon reasonable advance notice to the Company: (A) reasonable access (without any material disruption to the conduct of the Company’s business) during normal business hours to the Company’s books and take all commercially records (including tax returns) and facilities; (B) reasonable actions reasonably requested by access to the respective management and advisors of the Company for the purposes of evaluating the Company’ finances and operations and participating in the planning process with respect to facilitate the implementation and, if applicable, approval of Restructuring; (C) prompt access to any information provided to any existing or prospective financing sources; and (D) prompt and complete responses to reasonable requests for information regarding the Disclosure Statement Company’s books and confirmation records (including financial records and consummation of the Plantax returns) and operations;
(viii) not direct as soon as reasonably practicable, but in no event more than three (3) calendar days after the Company’s receipt or knowledge of same, provide written notice to the Consenting Creditors of (A) the occurrence, or failure to occur, of any administrative agent, collateral agent event of which the Company has actual knowledge which occurrence or indenture trustee failure would be likely to cause (as applicable1) any representation or warranty of the Company contained in this Agreement (including the Plan) to take be untrue or inaccurate in any action inconsistent with such Consenting Creditor’s obligations under material respect; (2) any covenant or obligation of the Company contained in this Agreement, and, if Agreement (including the Plan) not to be satisfied in any applicable administrative agent, collateral agent material respect; or indenture trustee (as applicable3) takes any action inconsistent with such Consenting Creditor’s obligations under condition precedent contained in this Agreement, such Consenting Creditor shall use its commercially reasonable efforts Agreement (which shall exclude including the provision Plan) not to occur or become impossible to satisfy; (B) receipt of any indemnitywritten notice from any third party alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring; (C) receipt of any written notice from any governmental body in connection with this Agreement or the transactions contemplated by the Restructuring; (D) receipt of any written notice of any proceeding commenced, or, to direct such administrative agentthe knowledge of the Company, collateral agent threatened against the Company (including by any taxing authority), relating to or indenture trustee involving or otherwise affecting in any material respect the transactions contemplated by the Restructuring; and (as applicableE) any failure of the Company to cease and refrain from taking comply, in any such action; andmaterial respect, with or satisfy any covenant, condition, or agreement to be complied with or satisfied by it hereunder;
(ix) support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the extent any legal Restructuring;
(x) execute and/or deliver, as soon as practicable, all other documents, agreements, instructions, proxies, directions, consents, ballots, votes, or structural impediment arises other materials required to be submitted, or that would preventthe Consenting Creditors reasonably request that the Company submit, hinder in connection with a vote on, solicitation of votes for, implementation of or delay the consummation in pursuit of the Plan, negotiate and file all other notices, and take such other action, that is consistent with or reasonably required to approve, implement and consummate the Consenting Parties in good faith appropriate additional or alternative provisions Restructuring;
(xi) (A) use commercially reasonable efforts to, subject to address any such impediment; provided that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoingRestructuring, nothing in this Agreement shall prohibit any Consenting Party from (1) appearing as a party-in-interest in any matter arising operate the Company in the Chapter 11 Cases or ordinary course, consistent with past practice (including with respect to tax matters); (2) enforcing any rightkeep available the services of its current officers and material employees (in each case, remedyother than voluntary resignations, condition, consentterminations for cause, or approval requirement under this Agreement or any Definitive Documentsterminations consistent with applicable fiduciary duties upon the advice of counsel); and (3) preserve in all material respects its relationships with customers, provided thatsales representatives, suppliers, distributors, and others, in each case, having material business dealings with the Company (other than terminations for cause, or consistent with applicable fiduciary duties based upon the advice of counsel); and (B) not sell any such action is not inconsistent asset or collection of assets with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any fair market value greater than $50,000 without the consent of the Parties to, provide any new financing or credit support except as contemplated by the Term Sheet.Consenting Creditors;
Appears in 1 contract
Samples: Restructuring Support Agreement (REVA Medical, Inc.)
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Party Xxxxxx agrees, severally (and not jointlyjointly and severally), that it shall use commercially reasonable efforts toshall:
(i) consult and negotiate in good faithfaith with the Company, its Representatives, and other Consenting Lenders and their respective Representatives, including with respect to causing the Company Entities to join this Agreement following the Agreement Effective Date, and use commercially reasonable efforts to execute, perform its obligations under, and consummate the transactions contemplated by, the Definitive Documents to which it is or will be a party or for which its approval or consent is required, including, to the extent necessary or appropriate, directing the administrative, collateral agents, and/or indenture trustee(s), as applicable, under the First Lien Credit Facility, Second Lien Notes, or DIP Facility to effectuate the transactions contemplated herein; provided that notwithstanding anything else herein, the Consenting Lenders shall not be obligated to provide such agents and trustees any indemnity or incur out-of-pocket costs or liabilities similar to an indemnity (or will beany out-of-pocket costs or liabilities similar to an indemnity prohibited by a Party’s organizational or constitutional documents) a party, at such times as are contemplated hereinin order to comply with this provision;
(ii) use commercially reasonable efforts to support and not object to the Plan Restructuring, and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents and use commercially reasonable efforts to take all any reasonable actions action necessary or reasonably requested by the Company in a timely manner to effectuate the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents, Restructuring in a manner consistent with this Agreement, including the timelines set forth herein; provided, that the foregoing shall not require any Consenting Lender to file any pleadings with respect thereto;
(iii) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or any agreement with any non-Party regarding, any Alternative Transaction;
(iv) use commercially reasonable efforts to cooperate with and assist the Company Entities in obtaining additional support for the Restructuring from the Company Entities’ other creditors and interest holders;
(v) use commercially reasonable efforts to support and take all reasonable actions reasonably requested by not object to the Company to facilitate DIP Motion and entry of the DIP Orders in accordance with this Agreement (including adequate protection terms contained thereinprovided that such DIP Motion and DIP Orders are in form and substance consistent with the forms of such documents attached to this Agreement and otherwise acceptable to the Required Consenting First Lien Lenders, the Required DIP Lenders and, solely to the extent they implicate the Second Lien Consent Right, the Required Second Lien Noteholders); provided, that the foregoing shall not require any Consenting Lender to file any pleadings with respect thereto;
(vi) support and not object to the Plan or entry of the Disclosure Statement Order, and or the Confirmation Order (provided that such Plan, Disclosure Statement Order, including consenting and Confirmation Order are in form and substance acceptable to the Company’s use Required Consenting First Lien Lenders and, solely to the extent they implicate the Second Lien Consent Right, the Required Second Lien Noteholders);
(vii) subject to the receipt of cash collateralthe Disclosure Statement and related solicitation materials, incurrence vote all Claims of obligations and granting of liens as such Consenting Lender (including those Claims over which such Consenting Lender has Beneficial Ownership) to accept the Plan in accordance with the applicable procedures set forth in the DIP Orders Disclosure Statement and accompanying voting materials, and return a duly-executed ballot in connection therewith no later than the applicable deadline set forth in the Disclosure Statement Order; provided, however, that such vote may be revoked or changed (which consent is and upon such revocation or change, the prior vote being deemed to have been given void ab initio) by such Consenting Party’s signature Lender if this Agreement has been terminated in accordance with its terms with respect to such Consenting Lender (it being understood by the Parties that any modification of the Plan that results in a termination of this AgreementAgreement pursuant to Section 7 hereof shall entitle such Consenting Lender to change its vote in accordance with section 1127(d) of the Bankruptcy Code, and the Disclosure Statement and related solicitation materials with respect to the Plan shall be consistent with this proviso);
(vviii) not, directly or indirectly, or encourage any other Person to, directly or indirectly, subject to the terms hereof, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan Restructuring and the transactions contemplated in this Agreement (including the DIP Facility) on the terms set forth in this Agreement, the Restructuring Term Sheet Sheet, the DIP Credit Agreement, the Plan, and any other applicable Definitive Document, including, without limitation, including commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or chapter 11 plan of reorganization for the Company that is inconsistent (except a chapter 11 plan pursued in compliance with this Agreement); (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; Agreement or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(vi) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such election;
(vii) support and take all commercially reasonable actions reasonably requested by the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the Plan;
(viiiix) not direct any administrative agent, collateral agent or indenture trustee (as applicable) or other such agent or trustee to take any action inconsistent with such Consenting CreditorLender’s obligations under this Agreement, Agreement and, if any applicable administrative agent, collateral agent or indenture trustee or other such agent or trustee (as applicable) takes any action inconsistent with such Consenting CreditorLender’s obligations under this Agreement, such Consenting Creditor Lender shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent or indenture trustee or other such agent or trustee (as applicable) to cease and refrain from taking any such action; provided that notwithstanding anything else herein, the Consenting Lenders shall not be obligated to provide such agents and trustees any indemnity or incur out-of-pocket costs or liabilities similar to an indemnity (or any out-of-pocket costs or liabilities similar to an indemnity prohibited by a Party’s organizational or constitutional documents) in order to comply with this provision; and
(ixx) to the extent any legal or structural impediment arises that would prevent, hinder or delay the consummation of the PlanRestructuring, negotiate with the Debtors and the other Consenting Parties Lenders in good faith appropriate additional or alternative provisions to address any such impediment; legal or structural impediment to the Restructuring, provided that no Consenting First Lien Lender shall be obligated to agree to or negotiate any such alternative provision that has or could have any adverse effect (other than in an immaterial respect) on the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoingform, nothing in this Agreement shall prohibit any Consenting Party from (1) appearing as a party-in-interest in any matter arising in the Chapter 11 Cases or (2) enforcing any right, remedy, condition, consentsubstance, or approval requirement amount of such Consenting First Lien Lender’s recovery or any of the rights or remedies available to it under this Agreement or any otherwise contemplated pursuant to this Agreement, the Term Sheet, the contemplated Definitive Documents, or the Restructuring; provided that, in each case, further that no Consenting Second Lien Noteholder shall be obligated to agree to any such action is not inconsistent with alternative provision that has or could have any adverse effect (other than in an immaterial respect) on the form, substance, or amount of such Consenting PartySecond Lien Noteholder’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate recovery or any of the Parties torights or remedies available to it under this Agreement or otherwise contemplated pursuant to this Agreement, provide any new financing or credit support except as contemplated by the Term Sheet, the contemplated Definitive Documents, or the Restructuring.
Appears in 1 contract
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Supporting Party agrees, severally and not jointlyjointly (solely in its capacity as a holder of Specified Claims and Interests, and in no other capacity), solely as long as it remains the legal owner, beneficial owner, and/or investment advisor or manager of or with power and/or authority to bind any Specified Claims and Interests against and/or in the Company held by it, that it shall use commercially reasonable efforts toefforts:
(i) negotiate in good faith, execute, perform its obligations under, and consummate to not oppose or otherwise object to the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated herein;
(ii) support the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents and take all reasonable actions necessary or reasonably requested by the Company to effectuate the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents, in a manner consistent with this AgreementRestructuring, including the timelines set forth herein;by
(iii) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or any agreement with any non-Party regarding, any Alternative Transaction;
(iv) support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(v) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(vi) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote voting all its Specified Claims and Interests (or cause directing the beneficial owner of the Claims and Interests on whose behalf it has executed this Agreement to be voted any Claims it holds timely vote) to accept the Plan and Scheme of Arrangement (to the extent permitted such Claims and Interests are entitled to votevote thereunder) by delivering and not changing or revoking its duly executed vote (subject to receipt of a Bankruptcy Court- approved Disclosure Statement), provided, that such vote shall be deemed immediately revoked and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement void ab initio upon termination of the solicitation of acceptances of the Plan this Agreement in accordance with sections 1125(g) and 1126 the terms hereof before the consummation of the Bankruptcy CodePlan, and (B) not exercising any right to “opt out” of the third-party releases contained in the Plan; provided, that, with respect to any Repo Securities (as defined below)the Supporting Governmental Opioid Claimants, the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to support will only be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Partyentity’s Opioid Claims and not with respect to any other Claims or Interests; provided, further, that the Plaintiff’s Executive Committee need only recommend that all Opioid Claimants in the MDL take the actions contemplated by (A) and (B) above;
(ii) to not oppose or otherwise object to (A) the petition to be presented by the directors of the Parent or any other Company Entity before the High Court of Ireland for appointment of the Examiner to the Parent or any other Company Entity for the purposes of or in connection with the implementation of the Restructuring, (B) any ancillary applications brought before the High Court of Ireland relating to such petition, including for the appointment of the Examiner to the Parent or any other Company Entity on an interim basis pending the hearing of the petition and/or the appointment of the Examiner to any Company Entity as a “related company” (within the meaning of Section 2 of the Companies Xxx 0000 of Ireland), and/or (C) any application(s) for recognition or other proceedings by any Company Entity under the Canadian Companies’ Creditors Arrangement Act to the extent it is permitted necessary to elect whether implement the Restructuring;
(iii) to opt into not oppose or opt out otherwise object to the Company’s application to the Bankruptcy Court for entry of the releases set forth in 105(a) Order;
(iv) to not oppose or otherwise object to the PlanCompany’s application to appoint a Future Claimants Representative;
(v) to not oppose or otherwise object to, elect and not directly or indirectly interfere with (or instruct or encourage any other Person to opt into directly or not elect to opt out indirectly interfere with), the CMS/DOJ/States Settlement and/or the implementation thereof (including any motion or other request for entry of an order of the releasesBankruptcy Court, as applicablewhich may be the Confirmation Order, set forth approving the CMS/DOJ/States Settlement);
(vi) to not oppose or otherwise object to any key employee incentive and retentive based compensation programs in existence prior to the Plan by timely delivering its duly executed and completed ballot or ballots indicating such electionAgreement Effective Date;
(vii) not to solicit, support and or take all commercially reasonable actions reasonably requested by any action to initiate or implement any Alternative Transaction with respect to the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the PlanCompany;
(viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent to advance the pursuit or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision prosecution of any indemnityOpioid Claims against Mallinckrodt (including seeking any discovery from Mallinckrodt in respect thereto); provided, that, nothing herein shall prevent any Supporting Party from continuing (x) to direct such administrative agentpursue or prosecute any claims against non-Mallinckrodt third-parties, collateral agent including co-defendants of Mallinckrodt or indenture trustee to take discovery from non-Mallinckrodt parties in connection with those third- party claims or (as applicabley) to cease and refrain take discovery from taking any Mallinckrodt solely in furtherance of such action; andclaims against non-Mallinckrodt third parties;
(ix) not to take any action to advance the pursuit or prosecution of any Specified Claims and Interests against any Non-Debtor Affiliates;
(x) to reasonably cooperate with each other and the Company in good faith in connection with the negotiation, drafting, execution (to the extent any legal or structural impediment arises that would preventsuch Party is a party thereto), hinder or delay the consummation and delivery of the Plan, Definitive Documents;
(xi) to negotiate with the Consenting other Parties in good faith appropriate additional or alternative provisions to address any such impediment; impediment to the Restructuring that may arise;
(xii) not to transfer its Specified Claims and Interests to any other Person except as provided that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoing, nothing in this Agreement shall prohibit Agreement; and
(xiii) not to take any Consenting Party from (1) appearing as action that would trigger a party-in-interest in any matter arising in the Chapter 11 Cases or (2) enforcing any right, remedy, condition, consent, or approval requirement under this Agreement or any Definitive Documents, provided that, in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as contemplated by the Term Sheet.Mandatory Offer
Appears in 1 contract
Samples: Restructuring Support Agreement
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Commitment Party agrees, severally and not jointly, that it shall use commercially reasonable efforts toshall:
(i) negotiate in good faith, execute, perform its obligations under, and consummate the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated herein;
(ii) support the Plan and the transactions contemplated by this Agreement, Agreement and the Restructuring Term Sheet and the Definitive Documents and take all reasonable actions necessary or reasonably requested by the Company to effectuate the Plan and the transactions contemplated by this Agreement, the Term Sheet Agreement and the Definitive DocumentsRestructuring Term Sheet, in each case in a manner consistent with this Agreement, including the timelines set forth herein;
(iiiii) not, directly or indirectly, seek, solicit, support, knowingly encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or into any agreement with any non-Party regarding, any Alternative Transaction;
(iv) support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(viii) not, directly or indirectly, or knowingly encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to knowingly interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Restructuring Term Sheet and any other applicable Definitive DocumentTransaction Agreement, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity Debtor or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(viiv) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such election;; and
(viiv) support and take all commercially reasonable actions reasonably requested by the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the Plan;
(viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent or indenture trustee (as applicable) to cease and refrain from taking any such action; and
(ix) to the extent any legal or structural impediment arises that would prevent, hinder or delay the consummation of the Plan, negotiate with the Consenting Parties in good faith appropriate additional or alternative provisions to address any such impediment; provided that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoing, nothing in this Agreement shall prohibit any Consenting Party from (1) appearing as a party-in-interest in any matter arising in the Chapter 11 Cases or (2) enforcing any right, remedy, condition, consent, or approval requirement under this Agreement or any Definitive Documentsother Transaction Agreement, provided that, in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as expressly contemplated by this Agreement or the Restructuring Term Sheet.
Appears in 1 contract
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Party Prepetition Xxxxxx agrees, severally and not jointly, that it shall use commercially reasonable efforts toshall:
(i) consult and negotiate in good faithfaith with the Company, its Representatives, other Consenting Prepetition Lenders and their respective Representatives, and use commercially reasonable efforts to execute, perform its obligations under, and consummate the transactions contemplated by, the Definitive Documents to which it is (or will be) be a partyparty or for which its approval or consent is required, at such times as are including, to the extent necessary or appropriate, directing the administrative and/or collateral agents under the Prepetition Loan Documents and/or DIP Facility to effectuate the transactions contemplated herein;
(ii) use commercially reasonable efforts to support and not object to the Plan and Restructuring and/or the Sale Process, including the other transactions contemplated by this Agreement, the Restructuring Term Sheet Sheet, the DIP Credit Agreement, and the other Definitive Documents Documents, and use commercially reasonable efforts to take all any reasonable actions action necessary or reasonably requested by the Company in a timely manner to effectuate the Plan and Restructuring and/or the Sale Process, including the transactions contemplated by this Agreement, the Restructuring Term Sheet and and/or the other Definitive Documents, in a manner consistent with this Agreement, including the timelines set forth herein;
(iii) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or any agreement with any non-Party regarding, regarding any Alternative Transaction; provided, that nothing in this clause (iii) shall affect any rights, if any, of the Consenting Prepetition Lenders set forth in Section 10 of this Agreement;
(iv) use commercially reasonable efforts to cooperate with and assist the Company Entities in obtaining additional support for the Restructuring and/or the Sale Process from the Company Entities’ other creditors and interest holders;
(v) support and take all reasonable actions reasonably requested by not object to the Company to facilitate DIP Motion and entry of the DIP Orders in accordance with this Agreement;
(including adequate protection terms contained therein)vi) support and not object to the Plan or the Sale Process, the Bidding Procedures Motion, or entry of the Disclosure Statement Order, and the Confirmation Order, including consenting and/or the Sale Order;
(vii) vote all Claims beneficially owned by such Consenting Prepetition Lender or for which it is the nominee, investment manager, or advisor for beneficial holders thereof, to accept the Company’s use of cash collateral, incurrence of obligations and granting of liens as Plan in accordance with the applicable procedures set forth in the DIP Orders Disclosure Statement and accompanying voting materials, and return a duly-executed ballot in connection therewith no later than the applicable deadline set forth in the Disclosure Statement Order (which consent is deemed to have been given by and not change, withdraw, or revoke any such Consenting Party’s signature to this Agreementvote);
(vviii) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan Restructuring and/or the Sale Process and the transactions contemplated in this Agreement on the terms set forth in this Agreement, the Restructuring Term Sheet Sheet, the DIP Credit Agreement, the Plan, the Bidding Procedures, and any other applicable Definitive Document, including, without limitation, including commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or chapter 11 plan of reorganization for the Company that is inconsistent (except the Plan pursued in compliance with this Agreement); (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; Agreement and the Plan or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(viix) subject at the reasonable request of the Company, timely oppose, including by filing a joinder, any objections filed with the Bankruptcy Court to entry of the receipt of DIP Orders, the Bidding Procedures Order, the Disclosure Statement and related materialsOrder, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to Confirmation Order, and/or the extent permitted to vote) Sale Order that are also opposed by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on Debtors in a timely basis following commencement of the solicitation of acceptances of the Plan in accordance pleading filed with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such electionCourt;
(viix) support and take all commercially reasonable actions reasonably requested by the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the PlanRestructuring and/or the Sale Process;
(viiixi) not direct any administrative agent, collateral agent, or other such agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting CreditorPrepetition Lender’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent, or other such agent or indenture trustee (as applicable) takes any action inconsistent with such Consenting CreditorPrepetition Lender’s obligations under this Agreement, such Consenting Creditor Prepetition Lender shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent, or other such agent or indenture trustee (as applicable) to cease and refrain from taking any such action; and;
(ixxii) to the extent any legal or structural impediment arises that would prevent, hinder or delay the consummation of the PlanRestructuring and/or the Sale Process, negotiate with the Consenting Parties Prepetition Lenders and the Debtors in good faith appropriate additional or alternative provisions to address any such impediment; provided or
(xiii) not directly or indirectly seek that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisionsCompany have an audit. Notwithstanding the foregoing, nothing in this Agreement shall (i) be construed to prohibit any Consenting Party Prepetition Lender from (1) appearing as a party-in-interest in any matter arising in the Chapter 11 Cases or and (2ii) be construed to prohibit any Consenting Prepetition Lender from enforcing any right, remedy, condition, consent, or approval requirement under this Agreement or any Definitive Documents, provided that, in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as contemplated by the Term SheetDocument.
Appears in 1 contract
Samples: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Restructuring Support. During the Support Period, subject to the terms and conditions hereofhereof (including Section 10 of this Agreement), each Consenting Party agrees, severally and not jointly, the Company agrees that it shall, and shall use commercially reasonable efforts cause each of its subsidiaries, to:
(i) negotiate implement the Restructuring in good faithaccordance with the terms and conditions set forth herein, execute, perform its obligations underthe Restructuring Term Sheet, and consummate the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated hereinDocuments;
(ii) support upon request, inform the Plan Ad Hoc Groups Advisors as to: (A) the material business and financial (including liquidity) performance of the transactions contemplated by this Agreement, Company Entities; and (B) the Term Sheet and the Definitive Documents and take all reasonable actions status of obtaining any necessary or reasonably requested by the Company to effectuate the Plan and the transactions contemplated by this Agreementdesirable authorizations (including consents) from each Consenting Lender, the Term Sheet and the Definitive Documentsany competent judicial body, in a manner consistent with this Agreementgovernmental authority, including the timelines set forth hereinbanking, taxation, supervisory, or regulatory body or any stock exchange;
(iii) (A) support and take all commercially reasonable actions necessary and appropriate, including those actions reasonably requested by the Required Consenting First Lien Lenders and, to the extent reasonably related to and implicating the Second Lien Consent Right, the Required Consenting Second Lien Noteholders, in each case, to facilitate the Restructuring, and the other transactions contemplated thereby, in accordance with this Agreement within the timeframes contemplated herein; (B) not take any action directly or indirectly that is inconsistent with, or is intended to, or that would reasonably be expected to prevent, interfere with, delay, or impede, the Restructuring or any Definitive Document (other than in an immaterial respect); (C) not, nor encourage any other Person to, take any action which would reasonably be expected to breach or be inconsistent with this Agreement, delay or impede, appeal, or take any other negative action, directly or indirectly, to interfere with any Definitive Document or the Restructuring (other than in an immaterial respect); and (D) use reasonable best efforts to obtain orders of the Bankruptcy Court approving the DIP Orders the Disclosure Statement Order, and/or the Confirmation Order, within the timeframes contemplated in this Agreement;
(iv) maintain good standing under the laws of the state or other jurisdiction in which each Company Entity or subsidiary is incorporated or organized;
(v) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring contemplated herein, support and take all steps reasonably necessary and desirable to address any such impediment and to effectuate the Restructuring in accordance with this Agreement;
(vi) not take any action, and not encourage any other Person or entity to, take any action, directly or indirectly, that would reasonably be expected to, breach or be inconsistent with this Agreement, or take any other action, directly or indirectly, that would reasonably be expected to interfere with the implementation of the Restructuring, the Plan, or this Agreement;
(vii) provide to the Ad Hoc Groups Advisors draft copies of all Definitive Documents and all other pleadings, motions, declarations, supporting exhibits and proposed orders and any other document that the Company intends to file with the Bankruptcy Court, to the extent practicable, at least three (3) calendar days prior to the date when the Company intends to file or execute such documents and, without limiting or modifying the consent rights set forth herein, consult in good faith with the Ad Hoc Groups Advisors regarding the form and substance of such documents;
(viii) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (A) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (B) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (C) dismissing the Chapter 11 Cases;
(ix) support and take all actions as are necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the Restructuring and Plan and to cooperate with any efforts undertaken by the Consenting Lenders with respect to obtaining any required regulatory or third-party approvals in connection with the Restructuring; actively oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Plan or the Restructuring (including, if applicable, the filing of timely filed objections or written responses);
(x) without limiting or modifying the consent rights set forth herein, consult and negotiate in good faith with the Ad Hoc Groups Advisors regarding the execution of Definitive Documents and the implementation of the Restructuring;
(xi) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a plan reorganization;
(xii) promptly, and in any event, within two (2) calendar days, provide written notice to the Ad Hoc Groups Advisors during the Support Period of the occurrence of a Termination Event; and provide prompt written notice and take all reasonably necessary actions to oppose any challenge or action by any Person or entity (whether pending, threatened, or filed with the Bankruptcy Court) to the validity or priority of, or seeking to avoid, any lien securing the First Lien Loans, Second Lien Notes, or DIP Loans;
(xiii) inform the Consenting Lenders and the Ad Hoc Groups Advisors in writing promptly, and in any event, within two (2) calendar days after becoming aware of: (a) any matter or circumstance which they know, or believe is likely, to be an impediment to the implementation or consummation of the Restructuring or the Plan (and oppose such matter or circumstance); (b) any notice of any commencement of any involuntary insolvency proceedings, legal suit for payment of debt or securement of security from or by any Person in respect of any Company Entity (and oppose such proceeding, suit, or securement); (c) a material breach of this Agreement by any Company Entity (and take all practicable steps to remedy such breach); and (d) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made (and take all practicable steps to remedy such representation or statement);
(xiv) use commercially reasonable efforts to seek additional support for the Restructuring from their other material stakeholders;
(xv) except to the extent permitted by Section 10 hereof, not, directly or indirectly, seek, solicit, support, encourage, propose, negotiate, discuss, assist, consent to, vote for, or enter or participate in any discussions or into any agreement with any non-Party regarding, any Alternative Transaction; provided that, if the Company receives an unsolicited written or oral proposal or expression of interest regarding any Alternative Transaction, the Company shall provide copies of any written proposals and all documentation received in connection therewith (and notice and description of any oral proposals) for any such Alternative Transactions to the Ad Hoc Groups Advisors on a professional eyes only basis no later than twenty-four (24) hours following receipt thereof by the Company; provided that if the Company is bound by a binding confidentiality agreement that was in existence prior to the Agreement Effective Date with a submitting party that prohibits the Company from providing the Ad Hoc Groups Advisors with a copy of any written proposal, the Company shall only be obligated to provide a summary of all material terms thereof to the Ad Hoc Groups Advisors no later than twenty-four (24) hours following receipt thereof by the Company;
(ivxvi) support prior to the Plan Effective Date, continue to comply with all of its current public reporting requirements;
(xvii) promptly file and take all commercially reasonable actions reasonably requested by the Company steps within their control that are necessary to facilitate entry obtain approval of the DIP Orders Federal Communications Commission (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting “FCC”) to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(v) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Documenttransactions contemplated hereby, including, without limitation, commencing submission of one or joining with more applications seeking FCC consent for a pro forma involuntary assignment of the Company’s FCC licenses to the Debtors in Possession and one or more applications seeking FCC consent to the transfer of control of the FCC licensee entities (or assignment of the FCC licenses) to an entity owned by the First Lien Lenders and the Second Lien Noteholders as contemplated hereby, as expeditiously as possible, including (A) promptly replying to any Person in commencing any litigation inquiries or involuntary case for relief under requests from the Bankruptcy Code against any Company Entity or any subsidiary thereof; FCC staff related to the processing of such applications, and (B) solicit, negotiate, propose, file, support, enter into, consummate, file opposing any petitions or other comments filed with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance FCC opposing grant of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreementsuch applications;
(vixviii) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Party; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, set forth in the Plan by timely delivering its duly executed and completed ballot or ballots indicating such election;
(vii) support and take all commercially reasonable actions reasonably steps within their control to cooperate with the Ad Hoc Groups Advisors and other holders of Company Claims/Interests to ensure that, to the extent requested by the Company to facilitate the implementation Required Consenting First Lien Lenders (and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the Plan;
(viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent or indenture trustee (as applicable) to cease and refrain from taking any such action; and
(ix) to the extent any legal reasonably related to or structural impediment arises implicating the Second Lien Consent Right, the Required Consenting Second Lien Noteholders), (A) the ownership structure of the reorganized Company to be proposed in the FCC application(s) (which structure may include, without limitation, the use of voting stock, limited voting stock that would prevent, hinder or delay the consummation be considered non-attributable for purposes of the PlanFCC’s ownership rules, negotiate and special warrants to be issued at emergence in lieu of the voting or limited voting stock) complies with the Consenting Parties foreign ownership limitations under section 310(b)(4) of the Communications Act of 1934, as amended, and other applicable rules, regulations, and policies of the FCC, including policies regarding waiver of the FCC’s foreign ownership limitations, without any declaratory ruling, waiver or other form of special relief, other than that which permits the holding of special warrants that may be issued in good faith appropriate additional or alternative provisions lieu of equity and in conformance with applicable FCC rules and policies, and/or (B) the ownership structure of the Company to address be proposed in any such impediment; provided that post-emergence applications submitted to the economic outcome FCC (including, without limitation, any application seeking approval for the Consenting Creditors and other materials terms conversion of this Agreement must be substantially preserved in such alternate provisions. Notwithstanding the foregoing, nothing in this Agreement shall prohibit any Consenting Party from (1) appearing as a party-in-interest in special warrants issued to any matter arising holder of Company Claims/Interest into equity in the Chapter 11 Cases or restructured company and/or to obtain a declaratory ruling to allow, among other things, the non-U.S. ownership of the stock of the Reorganized Debtors to exceed twenty-five percent (225%)) enforcing any rightcomplies with all applicable rules, remedyregulations, condition, consent, and policies of the FCC including policies regarding waiver or approval requirement under this Agreement or any Definitive Documents, provided that, of holdings in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any excess of the Parties to, provide any new financing or credit support except as contemplated by the Term SheetFCC’s foreign ownership limitations.
Appears in 1 contract
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Supporting Party agrees, severally and not jointlyjointly (solely in its capacity as a holder of Specified Claims and Interests, and in no other capacity), solely as long as it remains the legal owner, beneficial owner, and/or investment advisor or manager of or with power and/or authority to bind any Specified Claims and Interests against and/or in the Company held by it, that it shall use commercially reasonable efforts toefforts:
(i) negotiate in good faith, execute, perform its obligations under, and consummate to not oppose or otherwise object to the transactions contemplated by, the Definitive Documents to which it is (or will be) a party, at such times as are contemplated herein;
(ii) support the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents and take all reasonable actions necessary or reasonably requested by the Company to effectuate the Plan and the transactions contemplated by this Agreement, the Term Sheet and the Definitive Documents, in a manner consistent with this AgreementRestructuring, including the timelines set forth herein;
(iii) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions or any agreement with any non-Party regarding, any Alternative Transaction;
(iv) support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting Party’s signature to this Agreement);
(v) not, directly or indirectly, or encourage any other Person to, directly or indirectly, (A) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereof; (B) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this Agreement; (C) exercise any right or remedy for the enforcement, collection, or recovery of any claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;
(vi) subject to the receipt of the Disclosure Statement and related materials, it shall (A) timely vote voting all its Specified Claims and Interests (or cause directing the beneficial owner of the Claims and Interests on whose behalf it has executed this Agreement to be voted any Claims it holds timely vote) to accept the Plan and Scheme of Arrangement (to the extent permitted such Claims and Interests are entitled to votevote thereunder) by delivering and not changing or revoking its duly executed vote (subject to receipt of a Bankruptcy Court-approved Disclosure Statement), provided, that such vote shall be deemed immediately revoked and completed ballot or ballots, as applicable, accepting the Plan on a timely basis following commencement void ab initio upon termination of the solicitation of acceptances of the Plan this Agreement in accordance with sections 1125(g) and 1126 the terms hereof before the consummation of the Bankruptcy CodePlan, and (B) not exercising any right to “opt out” of the third-party releases contained in the Plan; provided, that, with respect to any Repo Securities (as defined below)the Supporting Governmental Opioid Claimants, the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to support will only be voted in accordance with the terms of this Section 4(a)(vi); (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period; provided, however, that nothing in this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote with respect to the Plan if this Agreement has been duly-terminated with respect to such Partyentity’s Opioid Claims and not with respect to any other Claims or Interests; provided, further, that the Plaintiff’s Executive Committee need only recommend that all Opioid Claimants in the MDL take the actions contemplated by (A) and (B) above;
(ii) to not oppose or otherwise object to (A) the petition to be presented by the directors of the Parent or any other Company Entity before the High Court of Ireland for appointment of the Examiner to the Parent or any other Company Entity for the purposes of or in connection with the implementation of the Restructuring, (B) any ancillary applications brought before the High Court of Ireland relating to such petition, including for the appointment of the Examiner to the Parent or any other Company Entity on an interim basis pending the hearing of the petition and/or the appointment of the Examiner to any Company Entity as a “related company” (within the meaning of Section 2 of the Companies Xxx 0000 of Ireland), and/or (C) any application(s) for recognition or other proceedings by any Company Entity under the Canadian Companies’ Creditors Arrangement Act to the extent it is permitted necessary to elect whether implement the Restructuring;
(iii) to opt into not oppose or opt out otherwise object to the Company’s application to the Bankruptcy Court for entry of the releases set forth in 105(a) Order;
(iv) to not oppose or otherwise object to the PlanCompany’s application to appoint a Future Claimants Representative;
(v) to not oppose or otherwise object to, elect and not directly or indirectly interfere with (or instruct or encourage any other Person to opt into directly or not elect to opt out indirectly interfere with), the CMS/DOJ/States Settlement and/or the implementation thereof (including any motion or other request for entry of an order of the releasesBankruptcy Court, as applicablewhich may be the Confirmation Order, set forth approving the CMS/DOJ/States Settlement);
(vi) to not oppose or otherwise object to any key employee incentive and retentive based compensation programs in existence prior to the Plan by timely delivering its duly executed and completed ballot or ballots indicating such electionAgreement Effective Date;
(vii) not to solicit, support and or take all commercially reasonable actions reasonably requested by any action to initiate or implement any Alternative Transaction with respect to the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the PlanCompany;
(viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent to advance the pursuit or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision prosecution of any indemnityOpioid Claims against Mallinckrodt (including seeking any discovery from Mallinckrodt in respect thereto); provided, that, nothing herein shall prevent any Supporting Party from continuing (x) to direct such administrative agentpursue or prosecute any claims against non-Mallinckrodt third-parties, collateral agent including co-defendants of Mallinckrodt or indenture trustee to take discovery from non-Mallinckrodt parties in connection with those third-party claims or (as applicabley) to cease and refrain take discovery from taking any Mallinckrodt solely in furtherance of such action; andclaims against non-Mallinckrodt third parties;
(ix) not to take any action to advance the pursuit or prosecution of any Specified Claims and Interests against any Non-Debtor Affiliates;
(x) to reasonably cooperate with each other and the Company in good faith in connection with the negotiation, drafting, execution (to the extent any legal or structural impediment arises that would preventsuch Party is a party thereto), hinder or delay the consummation and delivery of the Plan, Definitive Documents;
(xi) to negotiate with the Consenting other Parties in good faith appropriate additional or alternative provisions to address any such impedimentimpediment to the Restructuring that may arise;
(xii) not to transfer its Specified Claims and Interests to any other Person except as provided in this Agreement; provided and
(xiii) not to take any action that the economic outcome for the Consenting Creditors and other materials terms of this Agreement must be substantially preserved in such alternate provisionswould trigger a Mandatory Offer Requirement. Notwithstanding the foregoing, nothing Nothing in this Agreement shall prohibit any Consenting Supporting Party from (1) appearing as a party-in-interest in any matter arising in the Chapter 11 Cases or Cases, (2) enforcing any right, remedy, condition, consent, or approval requirement under this Agreement or any Definitive Documents, provided that(3) effecting a Transfer or purchasing, selling, or entering into transactions with respect to Specified Claims and Interests, subject to compliance with Section 4(b) below, (4) asserting or raising any objection not prohibited under or inconsistent with this Agreement in connection with the Restructuring, (5) failing to vote to support the Plan or withdrawing a vote in the support of the Plan, in each casecase from and after the termination of this Agreement, (6) taking any such action which is required by applicable law or declining to take any action which is prohibited by applicable law, (7) retaining the benefit of any applicable legal professional privilege, (8) making, seeking, or receiving any regulatory filings, notifications, consents, determinations, authorizations, permits, approvals, licenses, or the like, (9) taking any customary perfection step or other action as is necessary to preserve or defend the validity, existence or priority of its Claims against or Interests in Mallinckrodt (including the filing of a proof of claim against any Company Entity), (10) taking any action that is not inconsistent with such Consenting Party’s this Agreement, (11) consulting with other parties in interest in the Chapter 11 Cases, or (12) taking any action in furtherance of any Claims or Interest in Mallinckrodt other than Specified Claims and Interests, including exercising its rights under or taking action in connection with the Make-Whole Reservation of Rights. For the avoidance of doubt, the exercise of any rights under or taking action in connection with the Make-Whole Reservation of Rights is not inconsistent with a Supporting Unsecured Noteholders’ obligations hereunder. The Parties agree that Without limiting the foregoing, nothing in this Agreement does not constitute shall limit or restrict any Supporting Party from asserting positions or objections to the Plan, the Restructuring, or any other matter in the Chapter 11 Cases in such Supporting Party’s capacity as a commitment toholder of a Claim or Interest in Mallinckrodt other than Specified Claims and Interests. Each Party agrees that a Supporting Party’s entry into, nor shall it obligate any execution, or performance of this Agreement (including without limitation a Supporting Party’s vote in favor of the Parties toPlan) shall not be referenced, provide used, or held in any new financing way against the Supporting Party in its capacity as a holder of a Claim or credit support except as contemplated by the Term SheetInterest in Mallinckrodt other than Specified Claims and Interests.
Appears in 1 contract
Restructuring Support. During the Support Period, subject to the terms and conditions hereof, each Consenting Party Creditor agrees, severally and not jointly, that it shall use commercially reasonable efforts toshall:
(i) negotiate in good faith, execute, perform use its obligations under, and consummate the transactions contemplated by, the Definitive Documents commercially reasonable efforts to which it is (or will be) a party, at such times as are contemplated herein;
(ii) support the Plan Restructuring and the transactions contemplated by this Agreementthe Plan, the Term Sheet and the Definitive Documents act in good faith, and take all commercially reasonable actions necessary or reasonably requested by to consummate the Company to effectuate the Plan Restructuring and the transactions contemplated by this Agreement, the Term Sheet and the Definitive DocumentsPlan, in a manner consistent with this Agreement, including the timelines set forth herein;
(iiiii) not, directly or indirectly, seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in neither (A) take any discussions or any agreement action inconsistent with any non-Party regarding, any Alternative Transaction;
(iv) support and take all reasonable actions reasonably requested by the Company to facilitate entry of the DIP Orders (including adequate protection terms contained therein), the Disclosure Statement Order, and the Confirmation Order, including consenting to the Company’s use of cash collateral, incurrence of obligations and granting of liens as set forth in the DIP Orders (which consent is deemed to have been given by such Consenting PartyCreditor’s signature to obligations under this Agreement);
Agreement nor (vB) not, directly or indirectly, or encourage any other Person to, person or entity to directly or indirectly, : (A1) object to, delay, postpone, challenge, oppose, impede, or take any other action or any inaction to interfere with or delay the acceptance, implementation, or consummation consummation, of the Plan on the terms set forth in this Agreement, the Term Sheet and any applicable Definitive Document, including, without limitation, commencing or joining with any Person in commencing any litigation or involuntary case for relief under the Bankruptcy Code against any Company Entity or any subsidiary thereofRestructuring; (B2) solicit, negotiate, propose, file, support, enter into, consummate, file with the Bankruptcy Court, vote for, or otherwise knowingly take any other action in furtherance of any restructuring, workout, plan of arrangement, or plan of reorganization for the Company that is inconsistent with this AgreementAgreement or the Plan; or (C3) exercise any right or remedy for the enforcement, collection, or recovery of any claim Claim against the Company or any direct or indirect subsidiaries of the Company that do not file for chapter 11 relief under the Bankruptcy Code, except in a manner consistent with this Agreement; or (D) object to or oppose, or support any other Person’s efforts to object to or oppose, any motions filed by the Company that are consistent with this Agreement;and
(viiii) subject to the receipt of the Disclosure Statement and applicable related materialsdocuments in respect of the Restructuring, it shall (A) timely promptly vote or cause to be voted any Claims it holds to accept the Plan (to the extent permitted to vote) by delivering its duly executed and completed ballot and proxy or ballotsballots and proxies, as applicable, accepting the Plan on a timely basis following commencement of the solicitation of acceptances proxies in respect of the Plan in accordance with sections 1125(g) and 1126 of the Bankruptcy Code, provided, that, with respect to any Repo Securities (as defined below), the Consenting Party agrees to use its commercially reasonable efforts to cause such Repo Securities to be voted in accordance with the terms of this Section 4(a)(vi)applicable law; (B) not change or withdraw such vote or the elections described below (or cause or direct such vote or elections to be changed or withdrawn) during the Support Period); provided, howeverthat such vote or elections shall be deemed revoked (and upon such revocation, that nothing in void ab initio) at any time upon the termination of this Agreement shall prevent any Party from changing, withholding, amending, or revoking (or causing the same) its timely election or vote in accordance with respect Section 5 hereof unless such Consenting Creditor otherwise provides written notice to the Plan if this Agreement has been duly-terminated with respect to Company and the other Parties rejecting such Partyautomatic revocation; and (C) to the extent it is permitted to elect whether to opt into or opt out of the releases set forth in the Plan, elect to opt into or not elect to opt out of the releases, as applicable, releases set forth in the Plan by timely delivering its duly executed and completed ballot and proxy or ballots and proxies indicating such election;
election (vii) support and take all commercially reasonable actions reasonably requested by the Company to facilitate the implementation and, if applicable, approval of the Disclosure Statement and confirmation and consummation of the Plan;
(viii) not direct any administrative agent, collateral agent or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement, and, if any applicable administrative agent, collateral agent or indenture trustee (as applicable) takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts (which shall exclude the provision of any indemnity) to direct such administrative agent, collateral agent or indenture trustee (as applicable) to cease and refrain from taking any such action; and
(ix) subject to the extent any legal or structural impediment arises that would prevent, hinder or delay the consummation of the Plan, negotiate with the Consenting Parties in good faith appropriate additional or alternative provisions foregoing obligation to address any submit such impediment; provided that the economic outcome for the Consenting Creditors ballot and other materials terms of this Agreement must be substantially preserved in such alternate provisionsproxy). Notwithstanding the foregoing, nothing in this Agreement shall or the Plan, shall: (1) be construed to limit consent and approval rights provided in this Agreement and the Definitive Documents; (2) be construed to prohibit any Consenting Party Creditor from (1) appearing as contesting whether any matter, fact, or thing is a party-in-interest in any matter arising in the Chapter 11 Cases breach of, or is inconsistent with, this Agreement, or exercising rights or remedies specifically reserved herein; or (23) enforcing impair or waive the rights of any right, remedy, condition, consent, Consenting Creditor to assert or approval requirement raise any objection expressly permitted under this Agreement or in connection with any Definitive Documents, provided that, in each case, any such action is not inconsistent with such Consenting Party’s obligations hereunder. The Parties agree that this Agreement does not constitute a commitment to, nor shall it obligate any of the Parties to, provide any new financing or credit support except as contemplated by the Term Sheetjudicial hearing.
Appears in 1 contract
Samples: Restructuring Support Agreement (REVA Medical, Inc.)
