Affirmative Commitments. Except as set forth in Section 8, during the Agreement Effective Period, the Company Parties agree to: (a) support and take all steps reasonably necessary and desirable to implement and consummate the Restructuring Transactions in accordance with the terms, conditions and applicable deadlines set forth in this Agreement and the Definitive Documents, as applicable; (b) support and take all steps reasonably necessary and desirable to facilitate solicitation of the Plan in accordance with this Agreement; (c) comply with each Milestone; (d) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case, in a manner reasonably acceptable to Highbridge and the Required Consenting Unsecured Noteholders, and/or timely filing a formal objection to any motion, application or proceeding (i) seeking or approving an Alternative Restructuring Proposal, (ii) seeking relief that is inconsistent with this Agreement in any material respect, or would (or would reasonably be expected to) frustrate the purposes of this Agreement, (iii) seeking the entry of an order modifying or terminating any Company Party’s exclusive right to file and/or solicit acceptances of a plan of reorganization, (iv) challenging the amount, validity, allowance, character, enforceability or priority of any Company Claims/Interests of any of the Consenting Stakeholders, (v) challenging the validity, enforceability or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Stakeholders, (vi) seeking standing to pursue claims or causes of action of the Company Parties against any Consenting Stakeholder, or (vii) objecting to or seeking to interfere with the DIP Term Facility or DIP ABL Facility; (e) use commercially reasonable efforts to obtain, file, submit, or register any and all required regulatory and/or third-party approvals, filings, registrations or notices that are necessary or advisable for the implementation or consummation of the Restructuring Transactions and approval by the Bankruptcy Court of the Definitive Documents; (f) negotiate in good faith and use commercially reasonable efforts to execute, deliver and perform its obligations under the Definitive Documents and any other agreements necessary or desirable to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement; (g) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders and consult with Highbridge and the Consenting Unsecured Noteholders regarding the status and the material terms of any negotiations with any such stakeholders; (h) provide to Highbridge and the Consenting Unsecured Noteholders drafts of all Definitive Documents that the Company Parties intend to File with the Bankruptcy Court and as soon as reasonably practicable, but in no event less than three (3) Business Days (or such shorter period as may be necessary in light of exigent circumstances) prior to such filing; (i) provide to the Consenting ABL Lenders a reasonable opportunity to review drafts of Definitive Documents materially affecting the ABL Loans or the DIP ABL Facility that the Company Parties intend to File with the Bankruptcy Court related thereto, and to the extent reasonably practicable, provide a reasonable opportunity to counsel to any Consenting Stakeholders materially affected by such filing to review draft copies of other documents that the Company Parties intend to File with Bankruptcy Court, as applicable; (j) upon reasonable request of Highbridge and the Required Consenting Unsecured Noteholders (which request may come from counsel thereto), inform counsel to such Party as to: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; (ii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory or regulatory body or any stock exchange, (iii) operational and financial performance matters (including liquidity), collateral matters, contract and lease matters, and the general status of ongoing operations and, in each of the foregoing clauses (i)-(iii), provide timely and reasonable responses to all reasonable diligence requests with respect to the foregoing, subject to any applicable restrictions and limitations set forth in any Confidentiality Agreements then in effect; (k) inform the applicable counsel to each of the Consenting Stakeholders as soon as reasonably practicable, but no later than two (2) Business Days, after obtaining actual knowledge thereof: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) 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 the Company unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof; (iv) a breach of this Agreement (including a breach by the Company Parties); (v) any representation or statement made or deemed to be made by the Company Parties under this Agreement which is or provides to have been materially incorrect or misleading in any respect when deemed to have been made; (vi) the initiation, institution or commencement of any material lawsuit, action or other proceeding by any person or entity (A) involving the Company Parties or any of their respective current or former officers, employees, managers, directors, members or equity holders (in their capacities as such) unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof or (B) challenging the validity of the Restructuring Transactions or seeking to enjoin, restrain or prohibit this Agreement or the consummation of the Restructuring Transactions unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof, (vii) the happening or existence of any fact, event or circumstance that shall have made any of the conditions precedent to any Company Party’s obligations set forth in (or to be set forth in) any of the Definitive Documents incapable of being satisfied, and (viii) the receipt of notice from any person or entity alleging that the consent of such person or entity is or may be required under any contract, agreement, permit, Law or otherwise in connection with the consummation of any part of the Restructuring Transactions, unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof; (l) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized; (m) timely file a formal objection to any motion filed with the Bankruptcy Court (with respect to clause (iv), to the extent not informally resolved in connection with the objection deadline in connection therewith) by any person seeking the entry of an order (i) 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), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases or (iv) for relief that (x) is inconsistent with this Agreement in any material respect or (y) would reasonably be expected to frustrate the purposes of this Agreement, including by preventing consummation of the Restructuring Transactions; (n) use commercially reasonable efforts to (i) preserve intact in all material respects the current business operations of the Company Parties, keep available the services of their current officers and material employees and preserve in all material respects their relationships with customers, suppliers, distributors and others, (ii) maintain their respective books and records on a basis consistent with prior practice, (iii) maintain their physical assets, equipment, properties and facilities in their condition and repair as of the Agreement Effective Date, (iv) maintain all of their respective licenses and permits in full force and effect, (v) maintain all necessary insurance policies, or suitable replacements therefor, in full force and effect and (vi) otherwise operate their business in the ordinary course in compliance with applicable Law and this Agreement and the Definitive Documents; (o) not seek application of the equitable doctrine of marshaling, section 506(c) of the Bankruptcy Code or section 552(b) of the Bankruptcy Code with respect to the DIP Term Facility, the Term Loans or the Secured Notes; (p) negotiate in good faith the reasonable request of any Consenting Stakeholder any modifications to the Restructuring Transactions that improve the tax efficiency of the Restructuring Transactions or are otherwise necessary to address any legal, financial, or structural impediment that may prevent the consummation of the Restructuring Transactions, in each case to the extent such modifications can be implemented without any material adverse effect on such Company Party; and (q) pay the Transaction Expenses as and when due; provided that, with respect to any Transaction Expenses with respect to Highbridge (including the advisors to Highbridge) that were due and payable as of the Agreement Effective Date and invoiced at least one (1) day prior to the Petition Date, the Company Parties shall pay any such Transaction Expenses not later than one (1) Business Day after the Effective Date (as such term is defined in the DIP Term Loan Credit Agreement); provided, further, that on and after the Plan Effective Date, so long as this Agreement has not been terminated prior to the Plan Effective Date as to all Parties, the Company Parties shall pay the Transaction Expenses as and when due without any requirement for Bankruptcy Court review or further Bankruptcy Court order;
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Affirmative Commitments. Except as set forth in Section 87, during the Agreement Effective Period, during the Agreement Effective Period, subject to the terms and conditions of this Agreement, the Company Parties agree to:
(a) support and the Restructuring Transactions, act in good faith, take all steps actions, to the extent practicable and subject to the terms hereof, reasonably necessary and desirable to implement and consummate the Restructuring Transactions (including facilitating solicitation of the Plan) in accordance with the terms, conditions conditions, and applicable deadlines set forth in this Agreement and the Definitive Documents, as applicable;
(b) support and take all steps reasonably necessary and desirable to facilitate solicitation of the Plan in accordance with this Agreement;
(c) comply with each Milestone;
(dc) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment including to negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in each case, in a manner reasonably acceptable to Highbridge and the Required Consenting Unsecured NoteholdersStakeholders, and/or timely filing a formal objection to any motion, application or proceeding (i) seeking or approving an Alternative Restructuring Proposal, (ii) seeking relief that is inconsistent with this Agreement in any material respect, or would (or would reasonably be expected to) frustrate the purposes of this Agreement, (iiiii) seeking the entry of an order modifying or terminating any Company Party’s exclusive right to file and/or solicit acceptances of a plan of reorganization, (iviii) challenging the amount, validity, allowance, character, enforceability or priority of any Company Claims/Interests of any of the Consenting Stakeholders, (viv) challenging the validity, enforceability or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Stakeholders, (viv) seeking standing to pursue claims or causes Causes of action Action of the Company Parties against any Consenting Stakeholder, (vi) objecting to or seeking to interfere with the Cash Collateral Motion or Cash Collateral Orders, or (vii) objecting to or seeking to interfere with the DIP Term Facility TLC Motion or DIP ABL FacilityTLC Orders;
(e) use commercially reasonable efforts to obtain, file, submit, or register any and all required regulatory and/or third-party approvals, filings, registrations or notices that are necessary or advisable for the implementation or consummation of the Restructuring Transactions and approval by the Bankruptcy Court of the Definitive Documents;
(f) negotiate in good faith and use commercially reasonable efforts to execute, deliver and perform its obligations under the Definitive Documents and any other agreements necessary or desirable to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(gd) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent and consult with Highbridge and the Consenting Unsecured Noteholders Stakeholders regarding the status and the material terms of any negotiations with any such stakeholders;
(e) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(f) negotiate in good faith and use commercially reasonable efforts to execute and deliver and perform its obligations under the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(g) operate the business of each of the Debtors in the ordinary course (other than changes in the operations resulting from or relating to the Restructuring Transactions or the filing of the Chapter 11 Cases or any other Insolvency Proceedings) and in accordance with their business judgment and in a manner that is materially consistent with this Agreement and the business plan of the Debtors;
(h) provide the following reporting to Highbridge and each of (1) the advisors to the Consenting Unsecured Noteholders drafts Stakeholders and (2) the Consenting Stakeholders (subject, in the case of all Definitive Documents that (2), to acceptable non-disclosure agreements where applicable and consistent with past practice among the Company Parties intend to File Parties) with the Bankruptcy Court and as soon as reasonably practicable, but in no event less than three (3) Business Days (or such shorter period as may be necessary in light of exigent circumstances) prior to such filing;following reporting:
(i) provide weekly update calls with respect to:
a. the business plan;
b. lease negotiation status and strategy, including any leases to the Consenting ABL Lenders be added to pleadings to assume or reject leases, which shall include an overview of leases to be assumed or rejected and a reasonable opportunity for Required Consenting Stakeholders to review drafts of Definitive Documents materially affecting provide input on such strategy, assumptions, negotiations and rejections, both in the ABL Loans or the DIP ABL Facility that U.S. and in all other jurisdictions in which the Company Parties intend to File with the Bankruptcy Court related thereto, and to the extent reasonably practicable, provide a reasonable opportunity to counsel to any Consenting Stakeholders materially affected by such filing to review draft copies of other documents that the Company Parties intend to File with Bankruptcy Court, as applicabletheir direct and indirect subsidiaries operate;
(j) upon reasonable request of Highbridge and the Required Consenting Unsecured Noteholders (which request may come from counsel thereto), inform counsel to such Party as to: (i) c. weekly updates on the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; (ii) ;
d. the status of obtaining any necessary or desirable authorizations (including any consents) with respect to the Restructuring Transactions from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory supervisory, or regulatory body body, or any stock exchange, ;
(ii) budgets related to the Cash Collateral Orders in accordance with the reporting requirements set forth therein;
(iii) operational and financial performance matters (including liquidity), collateral matters, contract and lease matters, and the general status of ongoing operations and, in each of the foregoing clauses (i)-(iii), provide timely and reasonable responses (written responses to the extent reasonably requested) to all reasonable diligence requests with respect to the foregoing, subject to any applicable restrictions and limitations set forth in any Confidentiality Agreements then in effectrequests;
(ki) provide reporting, including, without limitation, with advisors to the Consenting Stakeholders and the Consenting Stakeholders, quarterly update calls regarding the Company Parties’ operations, performance, and financial conditions;
(j) inform the applicable counsel to each of the Consenting Stakeholders as soon as reasonably practicable, but no later than two (2) Business Days, after obtaining actual knowledge thereof: (i) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit any Party to terminate, or would result in the termination of, this Agreement; (ii) any matter or circumstance which they know to be a material impediment to the implementation or consummation of the Restructuring Transactions; (iii) 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 the Company Parties (and their direct and indirect subsidiaries) unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof; (iv) a breach of this Agreement (including a breach by the Company Parties); (v) any representation or statement made or deemed to be made by the Company Parties under this Agreement which is or provides to have been materially incorrect or misleading in any respect when deemed to have been made; (vi) the initiation, institution or commencement of any material lawsuit, action or other proceeding by any person or entity (A) involving the Company Parties or any of their respective current or former officers, employees, managers, directors, members or equity holders (in their capacities as such) unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof or (B) challenging the validity of the Restructuring Transactions or seeking to enjoin, restrain or prohibit this Agreement or the consummation of the Restructuring Transactions unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof, (vii) the happening or existence of any fact, event or circumstance that shall have made any of the conditions precedent to any Company Party’s obligations set forth in (or to be set forth in) any of the Definitive Documents incapable of being satisfied, and (viii) the receipt of notice from any person or entity alleging that the consent of such person or entity is or may be required under any contract, agreement, permit, Law or otherwise in connection with the consummation of any part of the Restructuring Transactions, unless such notice is disclosed on the docket maintained in the Chapter 11 Cases within two (2) Business Days after obtaining actual knowledge thereof; provided, that in respect of their obligations to provide reporting and information pursuant to Sections 6.01(h)(i), 6.01(h)(iii), and 6.01(i), the Company Parties will procure that, where the relevant leases are held by, or the diligence requests are in respect of information relating to, any of their direct and indirect subsidiaries (wherever located and whether wholly or jointly owned) which are not Company Parties, such subsidiaries will assist in providing such information to the Company Parties or, if requested by the Consenting Stakeholders, directly to the Consenting Stakeholders and their advisors;
(lk) use commercially reasonable efforts to maintain their good standing under the Laws of the state or other jurisdiction in which they are incorporated or organized;
(l) provide to counsel to the Consenting Stakeholders drafts of all Definitive Documents and declarations related thereto (other than declarations in support of, or related to, retention applications, fee applications, or fee statements) that the Company Parties intend to file with the Bankruptcy Court, and drafts of all material court filings and documents relating to any insolvency proceedings (including, for the avoidance of doubt, any Insolvency Proceedings relating to the direct and indirect subsidiaries (wherever located and whether wholly or jointly owned) of the Company Parties) no less than two (2) Business Days prior to such filing, or if exigencies make such delivery impossible, as soon as reasonably practicable prior to such filing;
(m) timely file a formal written reply to any objection filed with the Bankruptcy Court by any person with respect to any of the Definitive Documents;
(n) timely file a formal objection to any motion filed with the Bankruptcy Court (with respect to clause (iv), to the extent not informally resolved in connection with the objection deadline in connection therewith) by any person seeking the entry of an order (i) 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), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases Cases, or (iv) for relief that (x) is inconsistent with this Agreement in any material respect or (y) would reasonably be expected to frustrate the purposes of this Agreement, including by preventing consummation of the Restructuring Transactions;
(no) use commercially reasonable efforts timely file a formal objection to (i) preserve intact in all material respects any motion filed with the current business operations Bankruptcy Court by any person seeking the entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, keep available the services of their current officers and material employees and preserve in all material respects their relationships with customers, suppliers, distributors and others, (ii) maintain their respective books and records on a basis consistent with prior practice, (iii) maintain their physical assets, equipment, properties and facilities in their condition and repair as of the Agreement Effective Date, (iv) maintain all of their respective licenses and permits in full force and effect, (v) maintain all necessary insurance policies, or suitable replacements therefor, in full force and effect and (vi) otherwise operate their business in the ordinary course in compliance with applicable Law and this Agreement and the Definitive Documents;
(o) not seek application of the equitable doctrine of marshaling, section 506(c) of the Bankruptcy Code or section 552(b) of the Bankruptcy Code with respect to the DIP Term Facility, the Term Loans or the Secured Notesapplicable;
(p) take all actions reasonably necessary and proper to prosecute and defend any appeals of the Confirmation Order;
(q) negotiate in good faith the upon reasonable request of any Consenting Stakeholder other Party any modifications to the Restructuring Transactions that would improve the tax efficiency of the Restructuring Transactions or are otherwise necessary to address any legal, financial, or structural impediment that may prevent the consummation of the Restructuring Transactions, in each case to the extent such modifications can be implemented without any material adverse effect on such Company Party; and;
(qr) promptly pay the Consenting Stakeholder Transaction Expenses as and when due; provided that, with respect to any Transaction Expenses with respect to Highbridge (including the advisors to Highbridge) that were due and payable as of the Agreement Effective Date and invoiced at least one (1) day prior to the Petition Date, the Company Parties shall pay any such Transaction Expenses not later than one (1) Business Day after the Effective Date (as such term is defined in the DIP Term Loan Credit Agreement)full in cash; provided, further, that on and after the Plan Effective Date, so long as this Agreement has not been terminated prior to the Plan Effective Date as to all Parties, the Company Parties shall pay the Consenting Stakeholder Transaction Expenses as and when due without any requirement for Bankruptcy Court review or further Bankruptcy Court order;
(s) use best efforts to (i) prevent counterparties of non-residential real property leases from applying, setting off, recouping, or otherwise drawing on the relevant letters of credit and (ii) oppose any and all requests and/or motions made by such counterparties to, apply, set off, recoup, or otherwise draw on such letters of credit; and
(t) make such senior management and other representatives of Company Parties and their direct and indirect subsidiaries (wherever located and whether wholly or jointly owned) as the Consenting AHG Noteholders, the SoftBank Parties or Cupar may reasonably request, available to assist in all matters in relation to implementation or consummation of the Restructuring Transaction at such times as the Consenting AHG Noteholders or the SoftBank Parties may reasonably request; provided, that such requesting parties will use commercially reasonable efforts to coordinate such requests to avoid duplication.
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