Support of Restructuring. Each of the Consenting Lenders hereby agrees severally (and not jointly) that, for the duration of the Restructuring Support Period, unless otherwise required or prohibited by Law, such Consenting Lender shall: (i) support the Restructuring as contemplated by this Agreement; provided that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document; (ii) take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring, including consenting to the relief sought in the DIP Motion (including the granting of a first priority priming lien on the DIP Collateral (as defined in the DIP Commitment Letter) pursuant to the terms of the DIP Commitment Letter and consent to the use of cash collateral), DIP Orders, Bidding Procedures, Bidding Procedures Motion, and the Bidding Procedures Order in accordance with the terms and conditions of this Agreement, and not withdraw or revoke such consent; (iii) (A) subject to the receipt of the Disclosure Statement approved by the Disclosure Statement Order, timely vote, or cause to be voted, all of the Claims and Interests held by such Consenting Lender at the voting record date provided for in the Disclosure Statement Order by timely delivering its duly executed and completed ballot(s) accepting the Plan following commencement of the Solicitation, and (B) not change, withdraw or revoke such vote (or cause or direct such vote to be changed, withdrawn or revoked); provided, however, that such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Consenting Lender at any time following the expiration or termination of the Restructuring Support Period with respect to such Consenting Lender (it being understood that any termination of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote in accordance with section 1127(d) of the Bankruptcy Code, and the Solicitation materials with respect to the Plan shall be consistent with this proviso); (iv) not, directly or indirectly, (A) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transaction; (B) support or encourage the termination or modification of any Debtor’s exclusive period for the filing of a plan of reorganization, or any Debtor’s exclusive period to solicit a plan of reorganization; (C) seek to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case; (D) oppose or object to, or support any other Person’s efforts to oppose or object to, the approval of the First Day Motions, the DIP Motion (including the use of cash collateral and priming of the Prepetition Secured Credit Facility Claims (or other Claims and Interests) by the DIP Facility), the Bidding Procedures, the Disclosure Statement, the Plan and any other motions filed by any of the Debtors in furtherance of the Restructuring that are consistent in all material respects with this Agreement or which are otherwise reasonably acceptable to the Requisite Parties; or (E) take any other action that is materially inconsistent with this Agreement or any of the other Restructuring Documents, or that would, or would reasonably be expected to, prevent, interfere with, delay or impede the implementation, solicitation, confirmation, or consummation of the Restructuring in a material manner (including the Bankruptcy Court’s approval of the Restructuring Documents, the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring Documents. (v) negotiate in good faith the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document; (vi) timely vote or cause to be voted its Claims and Interests against any Alternative Transaction; and (vii) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default (as defined in the Prepetition Credit Agreements) or Event of Default (as defined in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP Orders.
Appears in 3 contracts
Samples: Restructuring Support Agreement (AAC Holdings, Inc.), Restructuring Support Agreement, Restructuring Support Agreement
Support of Restructuring. Each of the Consenting Lenders Creditors hereby agrees (severally (and not jointly) that, for the duration of the Restructuring Support Period, unless otherwise required or prohibited by Law, such Consenting Lender Creditor shall:
(i) support and take all reasonable actions necessary to implement and consummate the Restructuring in a timely manner as contemplated by this Agreement; provided that no Consenting Lender Creditor shall be obligated to waive (to the extent waivable by such Consenting LenderCreditor) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(ii) take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring, including consenting to the relief sought in the DIP Motion (including the granting of a first priority priming lien on the DIP Collateral (as defined in the DIP Commitment Letter) pursuant to the terms of the DIP Commitment Letter and consent to the use of cash collateral), DIP Orders, Bidding Procedures, Bidding Procedures Motion, and the Bidding Procedures Order in accordance with the terms and conditions of this Agreement, and not withdraw or revoke such consent;
(iii) (A) subject to the receipt of the Disclosure Statement approved by the Disclosure Statement Order, (I) timely vote, or cause to be voted, all of the Claims and Interests held by such Consenting Lender Creditor at the voting record date provided for in the Disclosure Statement Order by timely delivering its duly executed and completed ballot(s) accepting the Plan following commencement of the Solicitation, and (II) not “opt out” of, or object to, any releases or exculpations provided under the Plan (and, to the extent required by the ballot, affirmatively “opt in” to such releases and exculpations), and (B) not change, withdraw or revoke such vote (or cause or direct such vote to be changed, withdrawn or revoked); provided, however, that such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Consenting Lender Creditor at any time following the expiration or termination of the Restructuring Support Period with respect to such Consenting Lender Creditor (it being understood that any termination of the Restructuring Support Period with respect to a Consenting Lender Creditor shall entitle such Consenting Lender Creditor to change its vote in accordance with section 1127(d) of the Bankruptcy Code, and the Solicitation materials with respect to the Plan shall be consistent with this proviso);
(iii) negotiate in good faith, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Creditor shall be obligated to waive (to the extent waivable by such Consenting Creditor) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(iv) if any holder of the First Lien Notes has requested the First Lien Notes Trustee to exercise rights or remedies under or with respect to the First Lien Notes Indenture or any of the other First Lien Notes Documents, or if the First Lien Notes Trustee announces that it intends to exercise, or exercises, rights or remedies under or with respect to the First Lien Notes Indenture or any of the other First Lien Notes Documents, instruct the First Lien Notes Trustee not to exercise any rights or remedies, or assert or bring any claims, under or with respect to the First Lien Notes Indenture or any of the other First Lien Notes Documents; provided, however, that nothing in this clause (vi) shall require the Consenting Creditors to waive any Default (as defined in the First Lien Notes Indenture) or Event of Default (as defined in the First Lien Notes Indenture) or any of the obligations arising under the First Lien Notes;
(v) support approval of the DIP Facilities Motion and consent to the priming of the First Lien Notes Claims by the DIP Term Facility, as contemplated by the DIP Orders; or
(vi) not, directly or indirectly,
(A) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions, negotiations, agreements, understandings other similar discussions or other arrangements any agreement with any Person regarding, any Alternative Transaction;
(B) support or encourage the termination or modification of any Debtor’s exclusive period for the filing of a plan of reorganization, or any Debtor’s exclusive period to solicit a plan of reorganization;
(C) seek to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object to, or support any other Person’s efforts to oppose or object to, the approval of the First Day Motions, the DIP Motion (including the use of cash collateral and priming of the Prepetition Secured Credit Facility Claims (or other Claims and Interests) by the DIP Facility), the Bidding Procedures, the Disclosure Statement, the Plan and any other motions filed by any of the Debtors in furtherance of the Restructuring that are consistent in all material respects with this Agreement or which are otherwise reasonably acceptable to the Requisite Parties; or
(E) take any other action that is materially inconsistent with this Agreement or any of the other Restructuring Documents, or that would, or would reasonably be expected to, prevent, interfere with, delay or impede the implementation, solicitation, confirmation, or consummation of the Restructuring in a material manner (including including, but not limited to, the Bankruptcy Court’s approval of the Restructuring DocumentsDocuments (if applicable), the Solicitation, Solicitation and confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, but not limited to, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Debtors and the Requisite PartiesConsenting Creditors, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies (including rights or remedies under the First Lien Notes Documents, as applicable, or under applicable Law) as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring Documents.;
(vC) negotiate in good faith oppose or object to, or support any other Person’s efforts to oppose or object to, the terms and conditions ofapproval of the First Day Motions, executethe DIP Facilities Motion, perform its obligations underthe RSA Assumption Motion, and consummate any other motions filed by any of the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part Debtors in furtherance of the Restructuring set forth that are consistent in any Restructuring Documentall material respects with this Agreement or which are otherwise acceptable to the Debtors and the Requisite Consenting Creditors;
(viD) oppose the Debtors’ applications to engage (1) Xxxxxxxx & Xxxxx LLP and Xxxxxxxx & Xxxxx International LLP as counsel to the Debtors, (2) Rothschild Inc. as investment banker to the Debtors, (3) Zolfo Xxxxxx as restructuring adviser to the Debtors, or (4) or any individual associated with the foregoing firms as of the date hereof;
(E) seek to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code or request the appointment of a trustee or examiner in any Chapter 11 Case; or
(F) timely vote or cause to be voted its Claims and Interests against any Alternative Transaction; and
(vii) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default (as defined in the Prepetition Credit Agreements) or Event of Default (as defined in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender Creditor shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors Creditor (except in the case of a any Consenting Lender Creditor that is also a DIP Lender, such DIP LenderConsenting Creditor’s DIP Commitments (as defined in the DIP Commitment Letter) (Commitment, subject to the DIP Loan Documents (as defined in terms and conditions of the DIP Commitment Letter)Facilities Documents and DIP Orders), and (zy) nothing in this Agreement shall limit any of the rights or remedies of the agent under the DIP Agent Facilities or any of the DIP Lenders under or with respect to any of the DIP Loan Facilities Documents or any of the DIP Orders.
Appears in 2 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement (Cenveo, Inc)
Support of Restructuring. Each of the As long as a Consenting Lenders hereby agrees severally (and not jointly) that, for the duration of the Restructuring Support Period, unless otherwise required or prohibited by Law, such Consenting Lender shall:
(i) support the Restructuring as contemplated by this Agreement; provided that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(ii) take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring, including consenting to the relief sought in the DIP Motion (including the granting of a first priority priming lien on the DIP Collateral Claimant Termination Event (as defined herein) has not occurred, or has occurred but has been duly waived in the DIP Commitment Letter) pursuant to accordance with the terms hereof, the Consenting Claimants each agree to, and, promptly after the execution of this Agreement, shall Direct the DIP Commitment Letter and consent to the use of cash collateral)Trustees, DIP Orders, Bidding Procedures, Bidding Procedures Motion, and the Bidding Procedures Order in accordance with the terms and conditions of the Governing Agreements, to:
(a) Support (as defined below) the prosecution of the Debtors’ first- and second-day pleadings (including interim and final relief thereof, as applicable) including those pleadings listed on Exhibit D hereto; provided that if giving any Direction is impracticable, the Consenting Claimant Steering Committee shall request and Support the Trustees to accommodate the relief sought by the Debtors;
(b) Use commercially reasonable efforts (including a public statement of counsel requesting others to join), which do not require the expenditure of funds or undertaking of any obligation, to obtain agreement to this Agreement and the RMBS Trust Settlement Agreement from holders of Securities backed by mortgage loans held by the Covered Trusts other than the Consenting Claimants party to this Agreement on the first day of its execution, substantially in the form attached hereto as Exhibit E;
(c) Support the Debtors’ efforts to pursue the Restructuring contemplated by the Plan Term Sheet and the AFI Settlement Agreement (including the Cash Contribution set forth therein);
(d) Support the Debtors’ prosecution of their Chapter 11 Cases consistent with this Agreement, the Plan Term Sheet, and not withdraw or revoke such consentthe AFI Settlement Agreement, including the Cash Contribution set forth therein and take no action otherwise adverse to the Debtors during the Chapter 11 Cases;
(iiie) (A) subject to Support entry of an injunction staying litigation against Ally and current and former directors and officers of Ally and ResCap during the receipt pendency of the Disclosure Statement approved by the Disclosure Statement Order, timely vote, or cause to be voted, Chapter 11 Cases;
(f) Permit all of the Claims and Interests held by such Consenting Lender at the voting record date provided for disclosures in the Disclosure Statement Order and any filings by timely delivering its duly executed the Debtors and completed ballot(s) accepting Ally with any regulatory agency to which the Plan following commencement Debtors and Ally may be subject, of the Solicitationcontents of this Agreement, including the aggregate amount and nature of Rep and Warranty Claims;
(Bg) not change, withdraw or revoke such vote Support entry of any order approving the Disclosure Statement to permit solicitation of the Plan;
(or cause or direct such h) Direct the Trustees to vote to be changedaccept the Plan, withdrawn or revoked); provided, however, that such vote may be revoked (and, upon such revocation, deemed void ab initioi) by such the Bankruptcy Court has entered an order approving the Disclosure Statement,
(ii) the Consenting Lender at any time following the expiration or termination of the Restructuring Support Period with respect Claimants have been properly solicited pursuant to such Consenting Lender (it being understood that any termination of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote in accordance with section 1127(d) 1125 of the Bankruptcy Code, and (iii) the Solicitation materials with respect to material terms of the Plan shall be and the Disclosure Statement are consistent with this proviso);the terms of the Plan Term Sheet and incorporate terms no less favorable than the AFI Settlement Agreement; and
(ivi) not, directly or indirectly,
(A) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transaction;
(B) support or encourage Support confirmation of the termination or modification Plan and approval of any Debtor’s exclusive period settlement with Ally, whether or not such settlement is provided for the filing of under a plan of reorganization, including approval of third party releases in Ally’s favor, on terms no less favorable than the AFI Settlement Agreement (including the Cash Contribution set forth therein), or any Debtor’s exclusive period comparable sale under Section 363 of the Bankruptcy Code that provides and is conditioned on the same AFI Settlement Agreement (including the Cash Contribution set forth therein) and provides the same benefits to solicit a plan of reorganization;
(C) seek the Trusts and take no action otherwise adverse to convert any of Ally during the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object to, or support any other Person’s efforts to oppose or object to, the approval of the First Day Motions, the DIP Motion (including the use of cash collateral and priming of the Prepetition Secured Credit Facility Claims (or other Claims and Interests) by the DIP Facility), the Bidding Procedures, the Disclosure Statement, the Plan and any other motions filed by any of the Debtors in furtherance of the Restructuring that are consistent in all material respects with this Agreement or which are otherwise reasonably acceptable to the Requisite Parties; or
(E) take any other action that is materially inconsistent with this Agreement or any of the other Restructuring Documents, or that would, or would reasonably be expected to, prevent, interfere with, delay or impede the implementation, solicitation, confirmation, or consummation of the Restructuring in a material manner (including the Bankruptcy Court’s approval of the Restructuring Documents, the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring DocumentsCases.
(v) negotiate in good faith the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(vi) timely vote or cause to be voted its Claims and Interests against any Alternative Transaction; and
(vii) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default (as defined in the Prepetition Credit Agreements) or Event of Default (as defined in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP Orders.
Appears in 1 contract
Samples: Plan Support Agreement
Support of Restructuring. Each From the date of this Agreement and as long as this Agreement has not been terminated pursuant to its terms (such period, the Consenting Lenders hereby “Effective Period”), subject to the terms of this Agreement, each Supporting Lender severally agrees severally (and not jointly) that, for the duration of the Restructuring Support Period, unless otherwise required or prohibited by Law, such Consenting Lender that it shall:
(ia) support negotiate in good faith all Definitive Documents, reasonably agree to extensions of the Restructuring as contemplated by this Agreement; provided that no Consenting Lender shall be obligated to waive (Milestones to the extent waivable by such Consenting Lenderrequired to accommodate the Bankruptcy Court’s calendar, and comply with each of its other covenants and commitments set forth in this Agreement or the Restructuring Term Sheet;
(b) provide prompt written notice to the Company between the date of this Agreement and the Effective Date of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause any Lender Specified Representations to be untrue or inaccurate in any respect or any other representation or warranty of the Supporting Lenders contained in this Agreement to be untrue or inaccurate in any material respect, (ii) any material breach of any covenant of the Supporting Lenders contained in this Agreement, (iii) any event, condition, fact, or circumstance that would make the timely satisfaction of any of the conditions set forth in Article VIII impossible or unlikely, (iv) the receipt of any written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the Transactions or (v) the receipt of any written notice from any Governmental Entity that is material to the consummation of any part of the Restructuring set forth in any Restructuring DocumentTransactions;
(ii) take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring, including consenting to the relief sought in the DIP Motion (including the granting of a first priority priming lien on the DIP Collateral (as defined in the DIP Commitment Letter) pursuant to the terms of the DIP Commitment Letter and consent to the use of cash collateral), DIP Orders, Bidding Procedures, Bidding Procedures Motion, and the Bidding Procedures Order in accordance with the terms and conditions of this Agreement, and not withdraw or revoke such consent;
(iiic) (Ai) subject to the receipt of the Disclosure Statement and other Solicitation Materials approved by the Disclosure Statement Order, timely vote, or cause to be voted, all of its Claims to accept the Claims and Interests held Plan following the commencement of solicitation of votes for the Plan, by such Consenting Lender at the voting record date provided for in the Disclosure Statement Order by timely delivering its their duly executed and completed ballot(s) ballots accepting the Plan following commencement of the SolicitationPlan; (ii) refrain from changing, and revoking or withdrawing (B) not or causing such change, withdraw revocation or revoke withdrawal of) such vote (or cause or direct such vote to be changed, withdrawn or revoked)consent; provided, however, that such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Consenting Supporting Lender at any time following the expiration or termination of the Restructuring Support Period with respect this Agreement as to such Consenting Supporting Lender (it being understood that any termination of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote in accordance with section 1127(d) of the Bankruptcy Code, and the Solicitation materials with respect pursuant to the Plan shall be consistent with this proviso);
terms hereof; and (iviii) notnot object to, delay, postpone, challenge, reject, oppose or take any other action that would prevent, interfere with, delay or impede, directly or indirectly,
, the releases and exculpations set forth in the Plan and to the extent it is permitted to elect whether to opt in or opt out of any agreed upon releases or exculpations set forth in the Plan, to elect to opt in, and not to elect to opt out of, the releases set forth in the Plan so long as such release may be revoked (Aand, upon such revocation, deemed void ab initio) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in by such Supporting Lender at any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transactiontime following the termination of this Agreement as to such Supporting Lender pursuant to the terms hereof;
(Bd) support to the extent that a legal or encourage structural impediment to consummation of the termination Plan arises outside of the jurisdiction of the Bankruptcy Court, and such legal or modification structural impediment does not otherwise provide the Supporting Lenders with a right to terminate this Agreement, negotiate in good faith to address any such impediment; and
(e) not:
(i) object to, delay, postpone, challenge, reject, oppose or take any other action that would prevent, interfere with, delay or impede, directly or indirectly, in any material respect, the approval, acceptance or implementation of any Debtor’s exclusive period for the filing of a plan of reorganization, Restructuring on the terms set forth herein or any Debtor’s exclusive period to solicit a plan of reorganizationin the Restructuring Term Sheet;
(Cii) seek object to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object tooppose, or support any other Person’s efforts to oppose object to or oppose, any motions filed by the Company that are consistent with this Agreement, including any request by the Company to extend its exclusive periods to file the Plan and solicit acceptances thereof;
(iii) object to, the approval of the First Day Motions, the DIP Motion (including the use of cash collateral and priming of the Prepetition Secured Credit Facility Claims (or other Claims and Interests) by the DIP Facility), the Bidding Procedures, the Disclosure Statementvote to reject, the Plan and or any other motions filed by Definitive Document that comports with this Agreement; provided that the Supporting Lenders shall be entitled to object to or vote to reject the Plan or any Definitive Document on the basis that it does not comport with this Agreement;
(iv) initiate any legal proceeding or enforce rights as holders of the Debtors in furtherance of the Restructuring Claims that are consistent in all material respects with this Agreement inconsistent with, or which are otherwise that would reasonably acceptable be expected to prevent or materially delay consummation of, the Requisite PartiesRestructuring; or
(Ev) take any other action that is materially actions where such taking would be (A) inconsistent with this Agreement Agreement, the Restructuring Term Sheet or any of the other Restructuring DocumentsDefinitive Documents or (B) otherwise inconsistent with, or that would, or would reasonably be expected to, to prevent, interfere with, delay with or impede the implementation, solicitation, confirmation, implementation or consummation of the Restructuring in a material manner (including the Bankruptcy Court’s approval of the Restructuring Documentsof, the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring DocumentsRestructuring.
(v) negotiate in good faith the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(vi) timely vote or cause to be voted its Claims and Interests against any Alternative Transaction; and
(vii) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default (as defined in the Prepetition Credit Agreements) or Event of Default (as defined in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP Orders.
Appears in 1 contract
Samples: Restructuring Support Agreement (Melinta Therapeutics, Inc. /New/)
Support of Restructuring. Each From the date of this Agreement and as long as this Agreement has not been terminated pursuant to its terms (such period, the Consenting Lenders hereby “Effective Period”), subject to the terms of this Agreement, each Supporting Lender severally agrees severally (and not jointly) that, for the duration of the Restructuring Support Period, unless otherwise required or prohibited by Law, such Consenting Lender that it shall:
(ia) support negotiate in good faith all Definitive Documents, reasonably agree to extensions of the Restructuring as contemplated by this Agreement; provided that no Consenting Lender shall be obligated to waive (Milestones to the extent waivable by such Consenting Lenderrequired to accommodate the Bankruptcy Court’s calendar, and comply with each of its other covenants and commitments set forth in this Agreement and the Restructuring Term Sheet;
(b) provide prompt written notice to the Company between the date of this Agreement and the Effective Date of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause any Lender Specified Representations to be untrue or inaccurate in any respect or any other representation or warranty of the Supporting Lenders contained in this Agreement to be untrue or inaccurate in any material respect, (ii) any material breach of any covenant of the Supporting Lenders contained in this Agreement, (iii) any event, condition, fact, or circumstance that would make the timely satisfaction of any of the conditions set forth in Article VIII impossible or unlikely, (iv) the receipt of any written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the Transactions or (v) the receipt of any written notice from any Governmental Entity that is material to the consummation of any part of the Restructuring set forth in any Restructuring DocumentTransactions;
(ii) take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring, including consenting to the relief sought in the DIP Motion (including the granting of a first priority priming lien on the DIP Collateral (as defined in the DIP Commitment Letter) pursuant to the terms of the DIP Commitment Letter and consent to the use of cash collateral), DIP Orders, Bidding Procedures, Bidding Procedures Motion, and the Bidding Procedures Order in accordance with the terms and conditions of this Agreement, and not withdraw or revoke such consent;
(iiic) (Ai) subject to the receipt of the Disclosure Statement and other Solicitation Materials approved by the Disclosure Statement Order, timely vote, or cause to be voted, all of its Claims to accept the Claims and Interests held Plan following the commencement of solicitation of votes for the Plan, by such Consenting Lender at the voting record date provided for in the Disclosure Statement Order by timely delivering its their duly executed and completed ballot(s) ballots accepting the Plan following commencement of the SolicitationPlan; (ii) refrain from changing, and revoking or withdrawing (B) not or causing such change, withdraw revocation or revoke withdrawal of) such vote (or cause or direct such vote to be changed, withdrawn or revoked)consent; provided, however, that such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Consenting Supporting Lender at any time following the expiration or termination of the Restructuring Support Period with respect this Agreement as to such Consenting Supporting Lender (it being understood that any termination of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote in accordance with section 1127(d) of the Bankruptcy Code, and the Solicitation materials with respect pursuant to the Plan shall terms hereof; and (iii) not object to, delay, postpone, challenge, reject, oppose or take any other action that would reasonably be consistent with this proviso);
(iv) notexpected to prevent, interfere with, delay or impede, directly or indirectly,
, the releases and exculpations set forth in the Plan and to the extent it is permitted to elect whether to opt in or opt out of any agreed upon releases or exculpations set forth in the Plan, to elect to opt in, and not to elect to opt out of, the releases set forth in the Plan so long as such release may be revoked (Aand, upon such revocation, deemed void ab initio) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in by such Supporting Lender at any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transactiontime following the termination of this Agreement as to such Supporting Lender pursuant to the terms hereof;
(Bd) support to the extent that a legal or encourage structural impediment to consummation of the termination Plan arises outside of the jurisdiction of the Bankruptcy Court, and such legal or modification structural impediment does not otherwise provide the Supporting Lenders with a right to terminate this Agreement, negotiate in good faith to address any such impediment; and
(e) not:
(i) object to, delay, postpone, challenge, reject, oppose or take any other action that would reasonably be expected to prevent, interfere with, delay or impede, directly or indirectly, in any material respect, the approval, acceptance or implementation of any Debtor’s exclusive period for the filing of a plan of reorganization, Restructuring on the terms set forth herein or any Debtor’s exclusive period to solicit a plan of reorganizationin the Restructuring Term Sheet;
(Cii) seek object to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object tooppose, or support any other Person’s efforts to oppose object to or oppose, any motions filed by the Company that are consistent with this Agreement, including any request by the Company to extend its exclusive periods solely to file the Plan and solicit acceptances thereof;
(iii) object to, the approval of the First Day Motions, the DIP Motion (including the use of cash collateral and priming of the Prepetition Secured Credit Facility Claims (or other Claims and Interests) by the DIP Facility), the Bidding Procedures, the Disclosure Statementvote to reject, the Plan and or any other motions filed by Definitive Document that comports with this Agreement; provided that the Supporting Lenders shall be entitled to object to or vote to reject the Plan or any Definitive Document on the basis that it does not comport with this Agreement;
(iv) initiate any legal proceeding or enforce rights as holders of the Debtors in furtherance of the Restructuring Claims that are consistent in all material respects with this Agreement inconsistent with, or which are otherwise that would reasonably acceptable be expected to prevent or materially delay consummation of, the Requisite PartiesRestructuring; or
(Ev) take any other action that is materially actions where such taking would be (A) inconsistent with this Agreement Agreement, the Restructuring Term Sheet or any of the other Restructuring DocumentsDefinitive Documents or (B) otherwise inconsistent with, or that would, or would reasonably be expected to, to prevent, interfere with, delay with or impede the implementation, solicitation, confirmation, implementation or consummation of the Restructuring in a material manner (including the Bankruptcy Court’s approval of the Restructuring Documentsof, the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring DocumentsRestructuring.
(v) negotiate in good faith the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(vi) timely vote or cause to be voted its Claims and Interests against any Alternative Transaction; and
(vii) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default (as defined in the Prepetition Credit Agreements) or Event of Default (as defined in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP Orders.
Appears in 1 contract
Samples: Restructuring Support Agreement (Endologix Inc /De/)
Support of Restructuring. Each From the RSA Effective Time and as long as this Agreement has not been terminated pursuant to the terms hereof (such period, the “Effective Period”), and subject to the terms of this Agreement (including the Consenting Lenders hereby agrees severally (terms and not jointly) that, for the duration of conditions set forth in the Restructuring Support PeriodTerm Sheet), unless otherwise required or prohibited by Law, such Consenting Lender each Supporting Noteholder agrees that it shall:
(ia) support negotiate the Restructuring as contemplated by Documents in good faith, which will contain terms consistent with this Agreement; provided that no Consenting Lender shall be obligated to waive Agreement and the Restructuring Term Sheet, and coordinate its activities with the other Parties (to the extent waivable by such Consenting Lender) any condition practicable and subject to the consummation terms hereof) in respect of any part of the Restructuring set forth in any Restructuring Document;
(ii) take all reasonable actions necessary to facilitate matters concerning the implementation and consummation of the Restructuring;
(b) not (i) object to, including consenting delay, postpone, challenge, reject, oppose or take any other action that would reasonably be expected to prevent, interfere with, delay or impede, directly or indirectly, in any material respect, the relief sought approval, acceptance or implementation of the Restructuring on the terms set forth in the DIP Motion Restructuring Term Sheet, (including ii) directly or indirectly solicit, negotiate, propose, enter into, consummate, file with the granting Bankruptcy Court, vote for or otherwise knowingly support, participate in or approve any plan of a first priority priming lien on the DIP Collateral (as defined in the DIP Commitment Letter) pursuant to the terms reorganization, sale, proposal or offer of dissolution, winding up, liquidation, reorganization, merger or restructuring of the DIP Commitment Letter and consent to Company or its indebtedness other than the use of cash collateralPlan (in each case, an “Alternative Transaction”), DIP Ordersor (iii) object to or oppose, Bidding Proceduresor support any other person’s efforts to object to or oppose, Bidding Procedures Motion, and any motions filed by the Bidding Procedures Order in accordance Company that are consistent with the terms and conditions of this Agreement, including any request by the Company to extend its exclusive periods to file the Plan and not withdraw or revoke such consentsolicit acceptances thereof;
(iii) (Ai) subject to the receipt of the Disclosure Statement and other Solicitation Materials approved by the Conditional Disclosure Statement OrderOrder or the Final Disclosure Statement Order (as applicable), timely vote, or cause to be voted, all of the its Claims and Interests held (including any Post-RSA Effective Time Claims or Interests (as defined below)) to accept the Plan following the commencement of solicitation of votes for the Plan, by such Consenting Lender at the voting record date provided for in the Disclosure Statement Order by timely delivering its their duly executed and completed ballot(s) ballots accepting the Plan following commencement of the SolicitationPlan; (ii) refrain from changing, and revoking or withdrawing (B) not or causing such change, withdraw revocation or revoke withdrawal of) such vote (or cause or direct such vote to be changed, withdrawn or revoked)consent; provided, however, that that, subject to the order approving the Disclosure Statement and solicitation procedures, such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Consenting Lender Supporting Noteholder at any time following the expiration of the Effective Period, or upon termination of the Restructuring Support Period with respect this Agreement as to such Consenting Lender Supporting Noteholder pursuant to the terms hereof (other than a termination resulting from a breach of this agreement by such Supporting Noteholder); and (iii) to the extent it being understood that is permitted to elect whether to opt out of any termination releases set forth in the Plan, not elect to opt out of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote releases set forth in accordance with section 1127(d) of the Bankruptcy Code, and the Solicitation materials with respect to the Plan shall be consistent with this proviso)by timely delivering its duly executed and completed ballot or documents indicating such;
(ivd) notin the case of the Backstop Commitment Parties, directly or indirectly,
(A) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate backstop the Equity Rights Offering as described in any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transactionthis Agreement;
(Be) support except to the extent expressly contemplated under the Plan or encourage this Agreement, it will not, and it will not direct, the termination Secured Notes Trustee, the 6.25% Senior Notes Trustee or modification of any Debtor’s exclusive period for the filing of a plan of reorganizationConvertible Notes Trustee, as applicable, or any Debtor’s exclusive period other person, to solicit a plan exercise any right or remedy for the enforcement of reorganizationthe Secured Notes Claims or the Unsecured Notes Claims, as applicable;
(Cf) seek not object to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object tochallenge, or support any other Person’s efforts party that objects to oppose or challenges, the validity, enforceability, priority or any terms of or payments under the DIP Loan or any lien, security interest, Claim, Interest or adequate protection in respect thereof;
(g) with respect to the Supporting Unsecured Noteholders, not object to or challenge, or support any other party that objects to or challenges, the validity, enforceability, perfection, priority or any terms of or payments under the Secured Notes or the Prepetition Term Loan or any lien, security interest, Claim, Interest or adequate protection in respect of any of the foregoing;
(h) with respect to the Supporting Secured Noteholders, not object to or challenge, or support any other party that objects to or challenges, the validity or enforceability of the Unsecured Notes or any Claim or Interest of any Supporting Unsecured Noteholder in respect thereof;
(i) not seek to, and not support any other party that seeks to, disgorge or recharacterize as principal any payment of interest, fees or expenses paid pursuant to the approval of Prepetition Term Loan, the First Day MotionsSecured Notes, the DIP Motion (including Loan, the Cash Collateral Orders, the DIP Order or the Confirmation Order, or any other order of the Bankruptcy Court governing the use of cash the collateral and priming of the Prepetition Secured Credit Facility Claims (Noteholders or other Claims and Interests) by the DIP Facility)Lenders;
(j) not (i) file a pleading seeking authority to amend or modify, the Bidding Procedures, the Disclosure Statement, the Plan and Restructuring Documents or any other motions filed by any of the Debtors in furtherance of document relating to the Restructuring in a manner that are consistent in all material respects is inconsistent with this Agreement Agreement, (ii) file or which are otherwise reasonably acceptable seek authority to file any pleading that is materially inconsistent with the Requisite Parties; or
Restructuring or the terms of this Agreement, or (Eiii) take taken any other action that is materially inconsistent with this Agreement or any of the other Restructuring Documentswith, or that would, is intended or would is reasonably be expected to, prevent, likely to interfere with, delay or impede the implementation, solicitation, confirmation, or consummation of the Restructuring Restructuring;
(k) support, and in a material manner (including good faith take all actions necessary and reasonably requested by the Bankruptcy Court’s approval Debtors to obtain entry of the Restructuring Documents, order confirming the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or Plan and the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring Documents.
(v) negotiate in good faith the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(vi) timely vote or cause to be voted its Claims and Interests against any Alternative TransactionRestructuring; and
(viil) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either the Supporting Unsecured Noteholders, support, and in good faith take all actions necessary and reasonably requested by the Debtors or the Secured Notes Ad Hoc Group to obtain entry of the Prepetition Credit Agreements or any Final Cash Collateral Order in the form attached to the Restructuring Term Sheet as Exhibit 2;
(m) support, and in good faith take all actions necessary and reasonably requested by the Debtors to obtain entry of the other Prepetition Secured Credit Facility Documents, or if either of Approval Order; and
(n) support the Prepetition Agents announces that it intends motion to exercise, or exercises, rights or remedies under or with respect to either of approve the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default KEIPs (as defined in the Prepetition Credit AgreementsRestructuring Term Sheet) or Event of Default (as defined set forth in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP OrdersRestructuring Term Sheet.
Appears in 1 contract
Samples: Restructuring Support Agreement (Bristow Group Inc)
Support of Restructuring. Each From the RSA Effective Time and as long as this Agreement has not been terminated pursuant to the terms hereof (such period, the “Effective Period”), and subject to the terms of this Agreement (including the Consenting Lenders hereby agrees severally (terms and not jointly) that, for the duration of conditions set forth in the Restructuring Support PeriodTerm Sheet), unless otherwise required or prohibited by Law, such Consenting Lender each Supporting Noteholder agrees that it shall:
(ia) support negotiate the Restructuring as contemplated by Documents in good faith, which will contain terms consistent with this Agreement; provided that no Consenting Lender shall be obligated to waive Agreement and the Restructuring Term Sheet, and coordinate its activities with the other Parties (to the extent waivable by such Consenting Lender) any condition practicable and subject to the consummation terms hereof) in respect of any part of the Restructuring set forth in any Restructuring Document;
(ii) take all reasonable actions necessary to facilitate matters concerning the implementation and consummation of the Restructuring;
(b) not (i) object to, including consenting delay, postpone, challenge, reject, oppose or take any other action that would reasonably be expected to prevent, interfere with, delay or impede, directly or indirectly, in any material respect, the relief sought approval, acceptance or implementation of the Restructuring on the terms set forth in the DIP Motion Restructuring Term Sheet, (including ii) directly or indirectly solicit, negotiate, propose, enter into, consummate, file with the granting Bankruptcy Court, vote for or otherwise knowingly support, participate in or approve any plan of a first priority priming lien on the DIP Collateral (as defined in the DIP Commitment Letter) pursuant to the terms reorganization, sale, proposal or offer of dissolution, winding up, liquidation, reorganization, merger or restructuring of the DIP Commitment Letter and consent to Company or its indebtedness other than the use of cash collateralPlan (in each case, an “Alternative Transaction”), DIP Ordersor (iii) object to or oppose, Bidding Proceduresor support any other person’s efforts to object to or oppose, Bidding Procedures Motion, and any motions filed by the Bidding Procedures Order in accordance Company that are consistent with the terms and conditions of this Agreement, including any request by the Company to extend its exclusive periods to file the Plan and not withdraw or revoke such consentsolicit acceptances thereof;
(iii) (Ai) subject to the receipt of the Disclosure Statement and other Solicitation Materials approved by the Conditional Disclosure Statement OrderOrder or the Final Disclosure Statement Order (as applicable), timely vote, or cause to be voted, all of the its Claims and Interests held (including any Post-RSA Effective Time Claims or Interests (as defined below)) to accept the Plan following the commencement of solicitation of votes for the Plan, by such Consenting Lender at the voting record date provided for in the Disclosure Statement Order by timely delivering its their duly executed and completed ballot(s) ballots accepting the Plan following commencement of the SolicitationPlan; (ii) refrain from changing, and revoking or withdrawing (B) not or causing such change, withdraw revocation or revoke withdrawal of) such vote (or cause or direct such vote to be changed, withdrawn or revoked)consent; provided, however, that that, subject to the order approving the Disclosure Statement and solicitation procedures, such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Consenting Lender Supporting Noteholder at any time following the expiration of the Effective Period, or upon termination of the Restructuring Support Period with respect this Agreement as to such Consenting Lender Supporting Noteholder pursuant to the terms hereof (other than a termination resulting from a breach of this agreement by such Supporting Noteholder); and (iii) to the extent it being understood that is permitted to elect whether to opt out of any termination releases set forth in the Plan, not elect to opt out of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote releases set forth in accordance with section 1127(d) of the Bankruptcy Code, and the Solicitation materials with respect to the Plan shall be consistent with this proviso)by timely delivering its duly executed and completed ballot or documents indicating such;
(ivd) notin the case of the Backstop Commitment Parties, directly or indirectly,
(A) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate backstop the Equity Rights Offering as described in any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transactionthis Agreement and as more fully set forth in the Backstop Commitment Agreement;
(Be) support except to the extent expressly contemplated under the Plan or encourage this Agreement, it will not, and it will not direct, the termination Secured Notes Trustee, the 6.25% Senior Notes Trustee or modification of any Debtor’s exclusive period for the filing of a plan of reorganizationConvertible Notes Trustee, as applicable, or any Debtor’s exclusive period other person, to solicit a plan exercise any right or remedy for the enforcement of reorganizationthe Secured Notes Claims or the Unsecured Notes Claims, as applicable;
(Cf) seek not object to convert any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object tochallenge, or support any other Person’s efforts party that objects to oppose or challenges, the validity, enforceability, priority or any terms of or payments under the DIP Loan or any lien, security interest, Claim, Interest or adequate protection in respect thereof;
(g) with respect to the Supporting Unsecured Noteholders, not object to or challenge, or support any other party that objects to or challenges, the validity, enforceability, perfection, priority or any terms of or payments under the Secured Notes or the Prepetition Term Loan or any lien, security interest, Claim, Interest or adequate protection in respect of any of the foregoing;
(h) with respect to the Supporting Secured Noteholders, not object to or challenge, or support any other party that objects to or challenges, the validity or enforceability of the Unsecured Notes or any Claim or Interest of any Supporting Unsecured Noteholder in respect thereof;
(i) not seek to, and not support any other party that seeks to, disgorge or recharacterize as principal any payment of interest, fees or expenses paid pursuant to the approval of Prepetition Term Loan, the First Day MotionsSecured Notes, the DIP Motion (including Loan, the Final Cash Collateral Order, the DIP Order or the Confirmation Order, or any other order of the Bankruptcy Court governing the use of cash the collateral and priming of the Prepetition Secured Credit Facility Claims (Noteholders or other Claims and Interests) by the DIP Facility)Lenders;
(j) not (i) file a pleading seeking authority to amend or modify, the Bidding Procedures, the Disclosure Statement, the Plan and Restructuring Documents or any other motions filed by any of the Debtors in furtherance of document relating to the Restructuring in a manner that are consistent in all material respects is inconsistent with this Agreement Agreement, (ii) file or which are otherwise reasonably acceptable seek authority to file any pleading that is materially inconsistent with the Requisite Parties; or
Restructuring or the terms of this Agreement, or (Eiii) take taken any other action that is materially inconsistent with this Agreement or any of the other Restructuring Documentswith, or that would, is intended or would is reasonably be expected to, prevent, likely to interfere with, delay or impede the implementation, solicitation, confirmation, or consummation of the Restructuring Restructuring;
(k) support, and in a material manner (including good faith take all actions necessary and reasonably requested by the Bankruptcy Court’s approval Debtors to obtain entry of the Restructuring Documents, order confirming the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or Plan and the consummation of the transactions contemplated by any Restructuring;
(l) with respect to the Supporting Unsecured Noteholders, not seek to amend or modify the Final Cash Collateral Order or the Final Cash Management Order, in each case, without the consent of the Restructuring DocumentsDebtors and the Required Supporting Secured Noteholders;
(m) with respect to the Supporting Secured Noteholders that are Prepetition Term Lenders, support (IIand shall be deemed to consent to) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any an amendment of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable Prepetition Term Loan to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking extent necessary to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any allow for the funding of the other Restructuring Documents.DIP Facility and the liens contemplated thereby;
(vn) negotiate support, and in good faith take all actions necessary and reasonably requested by the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents Debtors to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part obtain entry of the Restructuring set forth in any Restructuring Document;
(vi) timely vote or cause to be voted its Claims and Interests against any Alternative TransactionApproval Order; and
(viio) if any holder of Prepetition Secured Loans has requested support the applicable Prepetition Agent motion to exercise rights or remedies under or with respect to either of approve the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default KEIPs (as defined in the Prepetition Credit AgreementsRestructuring Term Sheet) or Event of Default (as defined set forth in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP OrdersRestructuring Term Sheet.
Appears in 1 contract
Samples: Restructuring Support Agreement (Bristow Group Inc)
Support of Restructuring. Each of the As long as a Consenting Lenders hereby agrees severally (and not jointly) that, for the duration of the Restructuring Support Period, unless otherwise required or prohibited by Law, such Consenting Lender shall:
(i) support the Restructuring as contemplated by this Agreement; provided that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(ii) take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring, including consenting to the relief sought in the DIP Motion (including the granting of a first priority priming lien on the DIP Collateral Claimant Termination Event (as defined herein) has not occurred, or has occurred but has been duly waived in the DIP Commitment Letter) pursuant to accordance with the terms hereof, the Consenting Claimants each agree to, and, promptly after the execution of this Agreement, shall Direct the DIP Commitment Letter and consent to the use of cash collateral)Trustees, DIP Orders, Bidding Procedures, Bidding Procedures Motion, and the Bidding Procedures Order in accordance with the terms and conditions of the Governing Agreements, to:
(a) Support (as defined below) the prosecution of the Debtors’ first- and second-day pleadings (including interim and final relief thereof, as applicable) including those pleadings listed on Exhibit D hereto; provided that if giving any Direction is impracticable, the Consenting Claimant Steering Committee shall request and Support the Trustees to accommodate the relief sought by the Debtors;
(b) Use commercially reasonable efforts (including a public statement of counsel requesting others to join), which do not require the expenditure of funds or undertaking of any obligation, to obtain agreement to this Agreement and the ny-1040929 RMBS Trust Settlement Agreement from holders of Securities backed by mortgage loans held by the Covered Trusts other than the Consenting Claimants party to this Agreement on the first day of its execution, substantially in the form attached hereto as Exhibit E;
(c) Support the Debtors’ efforts to pursue the Restructuring contemplated by the Plan Term Sheet and the AFI Settlement Agreement (including the Cash Contribution set forth therein);
(d) Support the Debtors’ prosecution of their Chapter 11 Cases consistent with this Agreement, the Plan Term Sheet, and not withdraw or revoke such consentthe AFI Settlement Agreement, including the Cash Contribution set forth therein and take no action otherwise adverse to the Debtors during the Chapter 11 Cases;
(iiie) (A) subject to Support entry of an injunction staying litigation against Ally and current and former directors and officers of Ally and ResCap during the receipt pendency of the Disclosure Statement approved by the Disclosure Statement Order, timely vote, or cause to be voted, Chapter 11 Cases;
(f) Permit all of the Claims and Interests held by such Consenting Lender at the voting record date provided for disclosures in the Disclosure Statement Order and any filings by timely delivering its duly executed the Debtors and completed ballot(s) accepting Ally with any regulatory agency to which the Plan following commencement Debtors and Ally may be subject, of the Solicitationcontents of this Agreement, including the aggregate amount and nature of Rep and Warranty Claims;
(Bg) not change, withdraw or revoke such vote Support entry of any order approving the Disclosure Statement to permit solicitation of the Plan;
(or cause or direct such h) Direct the Trustees to vote to be changedaccept the Plan, withdrawn or revoked); provided, however, that such vote may be revoked (and, upon such revocation, deemed void ab initioi) by such the Bankruptcy Court has entered an order approving the Disclosure Statement,
(ii) the Consenting Lender at any time following the expiration or termination of the Restructuring Support Period with respect Claimants have been properly solicited pursuant to such Consenting Lender (it being understood that any termination of the Restructuring Support Period with respect to a Consenting Lender shall entitle such Consenting Lender to change its vote in accordance with section 1127(d) 1125 of the Bankruptcy Code, and (iii) the Solicitation materials with respect to material terms of the Plan shall be and the Disclosure Statement are consistent with this proviso);the terms of the Plan Term Sheet and incorporate terms no less favorable than the AFI Settlement Agreement; and
(ivi) not, directly or indirectly,
(A) seek, solicit, support, encourage, propose, assist, consent to, vote for, or enter or participate in any discussions, negotiations, agreements, understandings or other arrangements with any Person regarding, any Alternative Transaction;
(B) support or encourage Support confirmation of the termination or modification Plan and approval of any Debtor’s exclusive period settlement with Ally, whether or not such settlement is provided for the filing of under a plan of reorganization, including approval of third party releases in Ally’s favor, on terms no less favorable than the AFI Settlement Agreement (including the Cash Contribution set forth therein), or any Debtor’s exclusive period comparable sale under Section 363 of the Bankruptcy Code that provides and is conditioned on the same AFI Settlement Agreement (including the Cash Contribution set forth therein) and provides the same benefits to solicit a plan of reorganization;
(C) seek the Trusts and take no action otherwise adverse to convert any of Ally during the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, seek to dismiss any of the Chapter 11 Cases or request the appointment of a trustee or examiner in any Chapter 11 Case;
(D) oppose or object to, or support any other Person’s efforts to oppose or object to, the approval of the First Day Motions, the DIP Motion (including the use of cash collateral and priming of the Prepetition Secured Credit Facility Claims (or other Claims and Interests) by the DIP Facility), the Bidding Procedures, the Disclosure Statement, the Plan and any other motions filed by any of the Debtors in furtherance of the Restructuring that are consistent in all material respects with this Agreement or which are otherwise reasonably acceptable to the Requisite Parties; or
(E) take any other action that is materially inconsistent with this Agreement or any of the other Restructuring Documents, or that would, or would reasonably be expected to, prevent, interfere with, delay or impede the implementation, solicitation, confirmation, or consummation of the Restructuring in a material manner (including the Bankruptcy Court’s approval of the Restructuring Documents, the Solicitation, confirmation of the Plan, or consummation of the Restructuring pursuant to the Plan), including, (I) initiating any Proceeding or taking any other action to oppose the execution or delivery of any of the Restructuring Documents, the performance of any obligations of any party to any of the Restructuring Documents or the consummation of the transactions contemplated by any of the Restructuring Documents, (II) initiating any Proceeding or taking any other action to amend, supplement or otherwise modify any of the Restructuring Documents, which amendment, modification or supplement is not consistent in all material respects with this Agreement or otherwise reasonably acceptable to the Requisite Parties, or (III) initiating any Proceeding or taking any other action, or exercising or seeking to exercise any rights or remedies as a holder of Claims and Interests that is barred by or is otherwise materially inconsistent with this Agreement or any of the other Restructuring DocumentsCases.
(v) negotiate in good faith the terms and conditions of, execute, perform its obligations under, and consummate the transactions contemplated by, the Restructuring Documents to which it is (or will be) a party; provided, however, that no Consenting Lender shall be obligated to waive (to the extent waivable by such Consenting Lender) any condition to the consummation of any part of the Restructuring set forth in any Restructuring Document;
(vi) timely vote or cause to be voted its Claims and Interests against any Alternative Transaction; and
(vii) if any holder of Prepetition Secured Loans has requested the applicable Prepetition Agent to exercise rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, or if either of the Prepetition Agents announces that it intends to exercise, or exercises, rights or remedies under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents, in any such case in a manner materially inconsistent with the Restructuring, direct the applicable Prepetition Agent not to exercise any rights or remedies, or assert or bring any claims, under or with respect to either of the Prepetition Credit Agreements or any of the other Prepetition Secured Credit Facility Documents; provided, however, that nothing in this clause (vii) shall require the Consenting Lenders to waive any Default (as defined in the Prepetition Credit Agreements) or Event of Default (as defined in the Prepetition Credit Agreements) or any of the Obligations (as defined in the Prepetition Credit Agreements) or release or terminate any of the Encumbrances on any of the Collateral (as defined in the Prepetition Credit Agreements). Notwithstanding anything in this Agreement to the contrary, (x) no Consenting Lender shall be required to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Lender, (y) no Consenting Lender shall be construed as providing any commitment or obligation to advance any funds to, or purchase any securities of, any of the Debtors (except in the case of a Consenting Lender that is also a DIP Lender, such DIP Lender’s DIP Commitments (as defined in the DIP Commitment Letter) (subject to the DIP Loan Documents (as defined in the DIP Commitment Letter)), and (z) nothing in this Agreement shall limit any of the rights or remedies of the DIP Agent or any of the DIP Lenders under or with respect to any of the DIP Loan Documents or any of the DIP Orders.
Appears in 1 contract
Samples: Plan Support Agreement
