Commitments of the Company. Subject to the terms and conditions of this Agreement, the Company agrees that, so long as no Termination Event has occurred: (a) on the Settlement Date, the Company will effectuate the RCF Restructuring in accordance with the provisions of this Agreement and the Term Sheet, including by entering into the Definitive Closing Documents in connection with the RCF Restructuring; (b) on the Notes Exchange Commencement Date (unless such date is extended in accordance with the terms of this Agreement), the Company will distribute the documents for the Notes Exchange Offer to holders of the 2022 Notes in accordance with the provisions of this Agreement, the Offering Memorandum, the Term Sheet and the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) thereunder; (c) on a timely basis, the Company shall negotiate in good faith the Definitive Closing Documents with the respective Parties thereto and execute and deliver each Definitive Closing Document to which it is to be a party; (d) the Company shall (i) use commercially reasonable efforts as permitted under applicable laws and regulations to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) take any action reasonably requested by any Consenting Party to facilitate the implementation and consummation of the Transaction, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents; (e) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, the Company will support and take all steps reasonably necessary or desirable to address any such impediment; (f) the Company shall promptly pay when due all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the advisors for the Administrative Agent, the Revolving Lenders and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the Company; (g) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudent; (h) to the extent the Ad Hoc Group Advisors or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date; (i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent with, or that would delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheet, or take any other action that is barred by this Agreement; (j) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction; (k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents; (l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal; (m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject; (n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not: (i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise); (ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities; (iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise); (iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice; (v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice; (vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal; (viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof; (ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or (x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company; (o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction; (p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) 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 could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (vii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliates, or material legal suit for payment of debt or securement of security from or by any person in respect of the Company; and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and (q) the Company will not (i) waive any of the conditions to consummation of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive Documents, in each case, without the prior written consent of each Consenting Party, as applicable.
Appears in 3 contracts
Sources: Transaction Support Agreement (Peabody Energy Corp), Transaction Support Agreement (Peabody Energy Corp), Transaction Support Agreement (Peabody Energy Corp)
Commitments of the Company. Subject During the Support Effective Period, the Company agrees that it shall, subject to the terms and conditions of this Agreement, Agreement (including those set forth in the Company agrees that, so long as no Termination Event has occurred:Term Sheet):
(a) on the Settlement Dateuse its commercially reasonable efforts to (i) prepare, or cause to be prepared, the Company will effectuate Transaction Documents, (ii) take all steps reasonably necessary or desirable to commence the RCF Restructuring Transactions as provided for in accordance this Agreement as soon as reasonably practicable and consistent with the provisions of time frames contemplated in this Agreement Agreement, (iii) take all steps reasonably necessary to obtain any and all required regulatory and/or third-party approvals for the Term SheetTransactions, (iv) consummate the Transactions as soon as reasonably practicable on terms consistent with this Agreement, including by entering into within the Definitive Closing Documents time frames contemplated in connection with this Agreement, and (v) execute and deliver any other agreements, documents or instruments reasonably necessary to effectuate and consummate the RCF RestructuringTransactions;
(b) on neither (i) withdraw or terminate the Notes Exchange Commencement Date (unless such date is extended in accordance with the terms of this Agreement), the Company will distribute the documents for the Notes Secured Note Exchange Offer (other than due to holders the impossibility of fulfilling a condition precedent other than the Minimum Participation Condition) nor (ii) waive any condition precedent to consummation of either the Secured Note Exchange Offer or the Convertible Note Exchanges, in each case without the prior written consent of the 2022 Notes in accordance with the provisions of this Agreement, the Offering Memorandum, the Term Sheet Required Secured Noteholders and the applicable requirements of the Securities Act of 1933Required Convertible Noteholders (such consent not to be unreasonably withheld, as amended conditioned, or delayed);
(the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), and the rules and regulations of c) use its commercially reasonable efforts to timely file with the Securities and Exchange Commission (the “SEC”) thereunder;
its Annual Report on Form 10-K for the year ended December 31, 2015 (c) on a timely basisthe “2015 10-K”), the Company which 2015 10-K shall negotiate in good faith the Definitive Closing Documents with the respective Parties thereto and execute and deliver each Definitive Closing Document to which it is to be a partycontain all information required by Part III of such Form;
(d) file with the Company shall SEC, (i) not later than the fifth business day following the date the Company files its 2015 10-K, the Conversion Shares Registration Statement on the appropriate form, and use its commercially reasonable efforts to have it declared effective by the SEC as permitted under applicable laws and regulations to take, or cause to be taken, all actionssoon as practicable thereafter, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) take any action reasonably requested by any Consenting Party to facilitate the implementation extent and consummation of at the Transactiontimes required pursuant to the Term Sheet, the Registration Statement on the appropriate form, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting use its commercially reasonable efforts to take an action that is required by, this Agreement or have it declared effective by the Definitive DocumentsSEC as soon as practicable after the filing thereof;
(e) promptly after the satisfaction of all conditions precedent to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the TransactionConvertible Note Exchanges set forth in the Term Sheet, settle the Company will support and take all steps reasonably necessary or desirable to address any such impedimentConvertible Note Exchanges on the Convertible Note Exchange Settlement Date in accordance with this Agreement;
(f) use its commercially reasonable efforts to provide counsel to the Support Party with draft copies of all material documents, filings, agreements and instruments (including, without limitation, all Transaction Documents) that the Company intends to file or execute in connection with the Transactions as soon as reasonably practicable, and in no event later than three business days prior to the date that it intends to file or execute such documents filings, agreements and instruments, and the Company shall promptly pay when due incorporate all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses reasonably requested comments of the advisors for the Administrative AgentSupport Party to such documents, the Revolving Lenders filings, agreements and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the Companyinstruments;
(g) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudent;
(h) to the extent the Ad Hoc Group Advisors not directly or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;
(i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent withindirectly, or that would encourage any other entity to directly or indirectly, delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheetimpede, or take any other action that is barred by this Agreementor inaction to interfere with the acceptance, implementation, or consummation of the Transactions;
(h) continue to operate the Company’s business in the ordinary course;
(i) comply with all applicable laws, rules and regulations (including, without limitation, the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations promulgated under each) in its conduct and completion of the Transactions;
(j) hold an annual or special meeting of its stockholders to obtain the Company will not directly or indirectly arrangeStockholder Approval as soon as practicable and in no event later than June 30, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction2016;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents;
(l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;
(m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
(n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and the requisite consents for the implementation or consummation for the Transaction;
New Secured Notes Supplemental Indenture (p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occurdefined below), that would permit any Party to terminate, or could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (vii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliates, or material legal suit for payment of debt or securement of security from or by any person in respect of the Company; and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(ql) after obtaining the Company will not requisite consents therefor, execute a Supplemental Indenture (the “New Secured Notes Supplemental Indenture”) to the New Secured Notes Indenture to effectuate amendments that (i) waive any permit the Convertible Note Exchanges to occur (including, without limitation, permitting the incurrence of the conditions to consummation of the Transaction set forth debt and liens in the Definitive Documents or connection therewith), (ii) amend any eliminate the requirement under the New Secured Notes Indenture for the Company to complete a registered exchange offer to holders of the Existing Convertible Notes and (iii) permit additional New Convertible Notes to be issued to holders of Existing Convertible Notes who are not Supporting Convertible Noteholders in exchange for their Existing Convertible Notes, on terms of the Definitive Documents, in each case, without the prior written consent of each Consenting Party, as applicableno more advantageous to such holders than those offered to Supporting Convertible Noteholders.
Appears in 1 contract
Commitments of the Company. Subject to the terms and conditions of this Agreement, the Company agrees thatthat it shall (and shall cause each of its direct and indirect subsidiaries to) (except to the extent that taking or refraining from taking any action, as applicable, would be inconsistent with applicable law, regulation or court order), so long as no Termination Event has occurred:
(a) on support and take all commercially reasonable actions necessary to facilitate the Settlement Date, the Company will effectuate the RCF Restructuring in accordance with the provisions of this Agreement implementation and the Term Sheet, including by entering into the Definitive Closing Documents in connection with the RCF Restructuring;
(b) on the Notes Exchange Commencement Date (unless such date is extended in accordance with the terms of this Agreement), the Company will distribute the documents for the Notes Exchange Offer to holders consummation of the 2022 Notes in accordance with the provisions of this AgreementTransactions, the Offering Memorandum, the Term Sheet and the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) thereunder;including,
(c) on a timely basis, the Company shall negotiate in good faith the Definitive Closing Documents with the respective Parties thereto and execute and deliver each Definitive Closing Document to which it is to be a party;
(d) the Company shall (i) use taking all commercially reasonable efforts as permitted under applicable laws actions to support and regulations to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective complete the Transaction Transactions (including the Private Exchange) and all other commercially reasonable actions contemplated in connection therewith and under the Definitive Documents, ;
(ii) take taking all commercially reasonable actions to obtain any action reasonably requested by any Consenting Party to facilitate and all required governmental, regulatory and/or third party approvals or consents for the implementation and consummation of the Transaction, and Transactions;
(iii) refrain taking all commercially reasonable actions (A) to make all of the Secured Notes eligible for deposit with DTC (including engaging U.S. Bank Trust Company, National Association (or one of its Affiliates) as settlement agent for such purpose) and (B) to cause the Company’s transfer agent for the Common Shares to issue the Exchange Shares as provided herein; and
(iv) refraining from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents;
(eb) on a timely basis, negotiate in good faith the Definitive Documents with the respective parties thereto and use reasonable best efforts to execute and deliver each Definitive Document to which it is to be a party and consummate the Transactions; provided that notwithstanding anything to the contrary herein, the Company shall not be required to enter into the Definitive Documents on any terms less favorable to the Company or its subsidiaries than those terms contemplated by this Agreement (including the exhibits hereto);
(c) promptly provide the applicable Exchanging Party with any documentation or information that is reasonably requested by the Initial Exchanging Parties (on their own behalf or on behalf of any other Exchanging Party) to comply with “know your customer” and like requirements, which documentation and information shall be subject to any confidentiality restrictions to which the applicable Exchanging Party may be subject (and the provision of which the Company may reasonably condition on the applicable Exchanging Party agreeing to keep such documentation and information confidential to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, the Company will support and take all steps reasonably necessary or desirable to address any such impedimentpermitted by law);
(fd) the Company shall promptly pay when due all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the advisors for the Administrative Agent, the Revolving Lenders and the Ad Hoc Group Advisors, when due and payable in accordance with their respective engagement letters, fee reimbursement letters and/or fee letters entered into with the Company prior to the date hereof (if any. Nothing) and the reasonable and documented and invoiced fees, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms costs and out-of-pocket expenses of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into local counsel retained by the CompanyInitial Exchanging Parties in connection with the Transactions;
(ge) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims except to the extent reasonably prudent;
(h) to the extent prohibited by applicable law or confidentiality restrictions, notify the Ad Hoc Group Advisors or counsel to the Administrative Agent as promptly as reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent possible (but in no event later than 90 three (3) calendar days after the Settlement Date or such later date applicable occurrence) as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;to:
(i) the Company shall not object to, delay receipt or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent with, or that would delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheet, or take any other action that is barred by this Agreement;
(j) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents;
(l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;
(m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
(n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares rejection of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction;
(p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, supervisory or regulatory body or any stock exchange; exchange that are required for the implementation and consummation of the Transactions;
(iv) any material governmental or third party complaints, litigations, investigations or hearings; (vii) any event or circumstance of which an officer of the Company has actual knowledge that has occurred, or that is reasonably likely to occur (and if it did so occur), occurred that would permit any Party to terminate, or could reasonably be expected to result in the termination of, of this AgreementAgreement and/or any Exchanging Parties Termination Event; and
(vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (viiiii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliatesthe Company, or material legal suit for payment of debt or securement of security from or by any person Person in respect of the Company; and (viii) any representation or statement made or provided, that nothing within this Section 5 shall be deemed to be made by them under affect the Company’s right to terminate this Agreement which pursuant to the terms of Section 8;
(f) use reasonable best efforts to close the Transactions by no later than December 11, 2024, or as soon as reasonably practicable thereafter;
(g) make all filings, if any, under applicable securities or “Blue Sky” Laws of the states of the United States as shall be necessary in connection with the offering and sale of the Secured Notes, the Guarantees and the Exchange Shares;
(h) not, nor allow any of its affiliates (as defined in Rule 501(b) of Regulation D promulgated under the Securities Act) or any other Person acting on its or their behalf to: (1) directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act) that is or proves will be integrated with the sale of the Secured Notes, Guarantees or Exchange Shares in a manner that would require registration under the Securities Act of the Secured Notes, Guarantees or Exchange Shares to have been incorrect be issued by the Company; (2) solicit offers for, or misleading offer or sell, any Secured Notes, Guarantees or Exchange Shares by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D promulgated under the Securities Act or in any material respect when manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act; or (3) to take any other action that (A) could cause the offer and issuance of the Secured Notes, the Guarantees and the Exchange Shares to not be in compliance with an applicable exemption or exemptions from registration under the Securities Act (and shall not register any transfer of the Exchange Shares issued in reliance on Registration S that are not made in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act, or deemed pursuant to be madean available exemption from registration), or that (B) could cause the Private Exchange to not comply with Section 14(e) of the Exchange Act and Regulation 14E thereunder; and
(q) the Company will not (i) waive to not take, or agree to take, any action that would cause the Exchange Shares to be issued to the Exchanging Parties as Exchange Consideration to represent less than 15.81% of the conditions Company’s issued and outstanding Common Shares, as adjusted for stock combinations, recapitalizations and similar type transactions, prior to consummation the maturity date of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive Documents, in each case, without the prior written consent of each Consenting Party, as applicableExisting 2025 Notes.
Appears in 1 contract
Sources: Exchange Agreement (Office Properties Income Trust)
Commitments of the Company. Subject to the terms and conditions of this Agreement, the Company agrees that, so long as no Termination Event (as defined below) has occurred:
(a) on the Settlement Date, the Company will effectuate the RCF Restructuring in accordance with the provisions of this Agreement and the Term Sheet, including by entering into the Definitive Closing Documents in connection with the RCF Restructuring;
(b) on the Notes Exchange Commencement Date (unless such date is extended in accordance with the terms of this Agreementpursuant to Exhibit C), the Company will will, assuming agreement by the Company with the form and substance of the Definitive Documents in its reasonable discretion, distribute the documents for the Notes Exchange Offer and Consent Solicitation Materials to holders of the 2022 Senior Notes in accordance with the provisions of this Agreement, the Offering Memorandum, the Term Sheet and the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”“Exchange Act”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) thereunder;
(cb) on a timely basis, the Company shall negotiate in good faith the Definitive Closing Documents with the respective Parties thereto Consenting Noteholders and, assuming agreement by the Company with the form and substance of the Definitive Documents in its reasonable discretion, execute and deliver each Definitive Closing Document to which it is to be a party;
(c) on or prior to the date hereof, the Company shall, assuming agreement by the Company with the form and substance of the Private Placement Commitment Agreement in its reasonable discretion, enter into the Private Placement Commitment Agreement with the Private Placement Parties;
(d) the Company shall (i) use commercially reasonable efforts as permitted under applicable laws and regulations to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable under applicable laws and regulations to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) take any action reasonably requested by any Consenting Party to facilitate the implementation and consummation of the Transaction, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents;; and
(e) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, the Company will support Exchange Offer and take all steps reasonably necessary or desirable to address any such impediment;
(f) the Company shall promptly pay when due all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the advisors for the Administrative Agent, the Revolving Lenders and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or Consent Solicitation shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the Company;
(g) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudent;
(h) to the extent the Ad Hoc Group Advisors or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee consummated on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;
(i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent with, or that would delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheet, or take any other action that is barred by this Agreement;
(j) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents;
(l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;
(m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
(n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect which date may be extended by written agreement between the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of Required Consenting Noteholders and the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction;
(p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) 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 could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (vii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliates, or material legal suit for payment of debt or securement of security from or by any person in respect of the Company; and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(q) the Company will not (i) waive any of the conditions to consummation of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive Documents, in each case, without the prior written consent of each Consenting Party, as applicable.
Appears in 1 contract
Sources: Transaction Support Agreement (Party City Holdco Inc.)
Commitments of the Company. Subject to the terms and conditions hereof, and except as the Plan Sponsor may expressly release the Just Energy Entities in writing (which writing may be via email) from any of the following obligations (which release may be withheld, conditioned, or delayed by the Plan Sponsor in its sole discretion) (each such release, a “Section 6 Waiver”):
(a) each of the Just Energy Entities (i) agrees to (x) support and use commercially reasonable efforts to complete the Restructuring as set forth in the Plan and this Agreement; (y) negotiate in good faith and execute and deliver the Definitive Documents and take any and all steps reasonably necessary and appropriate in furtherance of the Restructuring, the Plan, and this Agreement; and (z) take commercially reasonable efforts to complete the Restructuring in accordance with each Milestone set forth in Section 4; and (ii) shall not (x) file any motion, pleading, or Definitive Documents with the CCAA Court, the US Bankruptcy Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, are inconsistent with this Agreement (including the consent rights of the other Parties set forth herein as to the form and substance of such motion, pleading, or Definitive Document) or the Plan; or (y) undertake any action that is inconsistent with, or is intended to frustrate or impede approval, implementation, and/or consummation of the Restructuring described in, this Agreement, the Company agrees that, so long as no Termination Event has occurred:
(a) on the Settlement Date, the Company will effectuate the RCF Restructuring in accordance with the provisions of this Agreement and the Term Sheet, including by entering into or the Definitive Closing Documents in connection with the RCF RestructuringPlan;
(b) on each of the Notes Exchange Commencement Date (unless such date is extended in accordance with Just Energy Entities agrees to use commercially reasonable efforts to cure, vacate, reverse, set aside, or have overruled any ruling or order of the terms of this Agreement)CCAA Court, the Company will distribute US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction (including any appellate court) enjoining or rendering impossible the documents for the Notes Exchange Offer to holders substantial consummation of the 2022 Notes in accordance with the provisions of this Agreement, the Offering Memorandum, the Term Sheet and the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) thereunderRestructuring;
(c) on a timely basis, each of the Company shall negotiate in good faith Just Energy Entities agrees to provide prompt written notice to the Definitive Closing Documents with other Parties between the respective Parties thereto date hereof and execute and deliver each Definitive Closing Document to which it is to be a party;
(d) the Company shall PSA Termination Date of (i) use commercially reasonable efforts as permitted under applicable laws and regulations to takethe occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (x) any representation or warranty of the Just Energy Entities contained in this Agreement to be takenuntrue or inaccurate in any material respect, all actions, and (y) any covenant of the Just Energy Entities contained in this Agreement not to dobe satisfied in any material respect, or cause (z) any condition precedent contained in the Plan or this Agreement not to be done, all things necessary, proper, occur or advisable become impossible to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documentssatisfy, (ii) take receipt of any action reasonably requested by written notice from any Consenting Party third party alleging that the consent of such party is or may be required as a condition precedent to facilitate the implementation and consummation of the Transactiontransactions contemplated by the Restructuring, (iii) receipt of any written notice from any governmental body that is material to the consummation of the transactions contemplated by the Restructuring, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents;
(eiv) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, the Company will support and take all steps reasonably necessary or desirable to address any such impediment;
(f) the Company shall promptly pay when due all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the advisors for the Administrative Agent, the Revolving Lenders and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the Company;
(g) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudent;
(h) to the extent the Ad Hoc Group Advisors or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;
(i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent with, or that would delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheet, or take any other action that is barred by this Agreement;
(j) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents;
(l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;
(m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
(n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of involving the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction;
(p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) any event or circumstance that has occurredinvestigations, or hearings (or communications indicating that the same is reasonably likely contemplated or threatened);
(d) the Just Energy Entities agree to occur take commercially reasonable efforts to ensure that all consents and approvals necessary for the implementation of the Restructuring (including, without limitation, regulatory, court, and if it did so occur), that would permit any Party to terminate, or could reasonably be expected to result in the termination of, this Agreement; (viother approvals) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment shall have been obtained to the implementation or consummation satisfaction of the Transaction; (vii) any notice Plan Sponsor, the Credit Facility Agent, and the Just Energy Entities, and that all necessary filings and notifications and similar actions shall have been taken to the satisfaction of the Plan Sponsor, the Credit Facility Agent, and the Just Energy Entities, including without limitation all Regulatory Matters set forth in Section 7 of the Backstop Commitment Letter, prior to the Effective Date provided that in no event would a Just Energy Entity be required to dispose of any commencement of assets or agree to any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliatesbehavioral remedies in connection with obtaining regulatory approvals, or material legal suit for payment of debt or securement of security from or unless agreed to by any person in respect of the Plan Sponsor, the Requisite Supporting Secured CF Lenders, Shell, and the Company; and provided, further that in connection with obtaining the Transaction Regulatory Approvals (viii) any representation or statement made or deemed as defined in the Backstop Commitment Letter), no Just Energy Entity shall agree to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(q) the Company will not (i) waive any of the conditions to consummation of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive Documents, in each case, foregoing items without the prior written consent of the Initial Backstop Parties (as defined in the Backstop Commitment Letter);
(e) Just Energy agrees to apply for and obtain an order from the applicable Canadian Securities Regulatory Authorities which provides that, as and from the Effective Date of the Plan, Just Energy will have ceased to be a reporting issuer under Canadian securities laws and that no Just Energy Entity will become a reporting issuer under Canadian securities laws as a result of the completion of the Restructuring;
(f) the Just Energy Entities shall pay the reasonable and documented fees and expenses of the Supporting Creditors (as defined below) incurred in connection with the Restructuring, including, without limitation, the reasonable and documented fees and expenses of such parties’ legal, financial, and other advisors, as and when they come due after receipt of applicable invoices and in accordance with the arrangements in place as of the date of this Agreement, including, without limitation, as set forth in the DIP Term Sheet, or, with respect to any additional fees and expenses, as otherwise agreed to by the Plan Sponsor;
(g) the Just Energy Entities shall: (i) operate the business of the Just Energy Entities in the ordinary course in a manner that is consistent with this Agreement, and use commercially reasonable efforts to preserve intact the Just Energy Entities’ business organization and relationships with third parties and, subject to (ii) below, its employees (which shall not prohibit the Just Energy Entities from taking actions outside of the ordinary course of business to the extent approved by the CCAA Court and the US Bankruptcy Court, as applicable and with the consent of the Plan Sponsor), (ii) not have disclaimed or terminated any employment or consulting agreement with an officer, director, or member of senior management, other than “for cause,” without the written consent of the Plan Sponsor, (iii) keep the Plan Sponsor, the Supporting Secured CF Lenders, the Credit Facility Agent, and the Supporting Unsecured Creditors informed about the operations of the Just Energy Entities, and (iv) provide each Consenting of the other Parties any material information reasonably requested regarding the Just Energy Entities (on a confidential basis) and provide, and direct the Just Energy Entities’ employees, officers, advisors, and other representatives to provide, to the Plan Sponsor’s legal, financial, and other advisors, (x) reasonable access during normal business hours to the Just Energy Entities’ books, records, and facilities (on a confidential basis), and (y) reasonable access to the management and advisors of the Just Energy Entities for the purposes of evaluating the Just Energy Entities’ assets, liabilities, operations, businesses, finances, strategies, prospects, and affairs;
(h) the Just Energy Entities agree (i) to prepare or cause to be prepared the applicable Definitive Documents within the Just Energy Entities’ control (including all relevant motions, applications, orders, and agreements), (ii) to provide draft copies of all documents, including the Definitive Documents within the Just Energy Entities’ control, that the Just Energy Entities intend to file with the CCAA Court or the US Bankruptcy Court, in each case, to counsel to the Plan Sponsor and Credit Facility Agent at least three (3) days before such documents are to be filed with the CCAA Court and/or the US Bankruptcy Court or as soon as practicable thereafter; provided, that each such pleading or document shall be acceptable to the Plan Sponsor, acting reasonably, and consistent with, and shall otherwise contain, the terms and conditions set forth in this Agreement (including the consent rights of any Party, as may be applicable, set forth herein as to the form and substance of such pleading or document), and (iii) without limiting any approval rights set forth herein, consult in good faith with the advisors to the Plan Sponsor and Credit Facility Agent regarding the form and substance and timing of service and filing of any of the foregoing documents in advance of the filing, execution, distribution, or use (as applicable) thereof;
(i) the Just Energy Entities agree to file timely a formal objection to any motion filed with the CCAA Court or the US Bankruptcy Court, as applicable, seeking an order that would undermine the Restructuring or any relief sought in connection therewith; and
(j) the Just Energy Entities agree to file timely a formal objection to any motion filed with the CCAA Court or the US Bankruptcy Court, as applicable, by any Person seeking the entry of an order (i) lifting the stay of proceedings in the CCAA Proceedings; (ii) terminating the CCAA Proceedings or converting the CCAA Proceedings to proceedings under the Bankruptcy and Insolvency Act (Canada); (iii) directing the appointment of an examiner or a trustee; (iv) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code; or (v) dismissing any of the Chapter 15 Cases.
Appears in 1 contract
Commitments of the Company. Subject Commencing on the Agreement Effective Date until the Agreement Termination Date, each Company Party, jointly and severally, agrees, that such Company Party shall, subject to the terms and conditions of this Agreement, the Company agrees that, so long as no Termination Event has occurredhereof:
(a) on (i) support and take all actions that are necessary and appropriate or are reasonably requested by the Settlement DateRequired Supporting Secured Noteholders or the Required Supporting Convertible Noteholders to obtain orders of the Bankruptcy Court, to the extent applicable, in furtherance of the solicitation, confirmation, and consummation of the Plan and the Restructuring, including using commercially reasonable efforts to obtain entry of the Cash Collateral Orders, Disclosure Statement Order and Confirmation Order, each in accordance with, and within the time frames contemplated by, this Agreement (including within the deadlines set forth in Section 7(a)); (ii) timely file a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to entry of Cash Collateral Orders, the Company will effectuate Disclosure Statement Order or the RCF Confirmation Order or any relief related thereto; (iii) support and consummate the Restructuring in a timely manner in accordance with the provisions of this Agreement and the Term SheetAgreement, including the good faith negotiation, preparation and filing of any Definitive Documents within the time frame provided herein or therein; (iv) execute and deliver any other documents that may be required to effectuate and consummate the Restructuring; (v) take any and all commercially reasonable and appropriate actions in furtherance of the Restructuring, as contemplated under this Agreement; and (vi) operate its business in the ordinary course in a manner consistent with past practice (other than any changes in operations (i) resulting from or relating to the filing or prosecution of the Chapter 11 Cases or (ii) imposed by entering into the Definitive Closing Documents in connection with the RCF RestructuringBankruptcy Court);
(b) on the Notes Exchange Commencement Date provide reasonably prompt written notice (unless such date is extended in accordance with Section 21 hereof, and in any event which notice shall be provided within two (2) Business Days after such Company Party has actual knowledge of the circumstance giving rise to the notice obligation set forth in this clause (b)) to the Supporting Noteholders of (i) the receipt by such Company Party of an unsolicited proposal or expression of interest with respect to an Alternative Proposal, which notice shall include the material terms of such Alternative Proposal and the identity of the Person(s) involved, (ii) any Event that causes or would reasonably be expected to cause (A) any covenant of any Company Party contained in this Agreement)Agreement not to be satisfied, or (B) any condition precedent contained in the Plan not to timely be satisfied or become incapable of being satisfied, (iii) receipt of any notice from any third party alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring, (iv) receipt of any material notice from any Governmental Unit with respect to this Agreement or the Restructuring, (v) receipt of any notice of any complaints, litigations, investigations, hearings or proceedings commenced other than as filed with the Bankruptcy Court, or threatened against the Company, relating to or involving or otherwise affecting the transactions contemplated by the Restructuring, (vi) any failure of the Company will distribute to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder, (vii) any acquisition or divestiture or business combination made by the documents for the Notes Exchange Offer to holders Company outside of the 2022 Notes in accordance with the provisions ordinary course of this Agreement, the Offering Memorandum, the Term Sheet business; and the applicable requirements (viii) any material discussions or negotiations regarding any of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) thereunderforegoing;
(c) on a timely basis, use reasonable best efforts to satisfy the Company shall negotiate milestones set forth in good faith the Definitive Closing Documents with the respective Parties thereto and execute and deliver each Definitive Closing Document to which it is to be a partySection 7(a) of this Agreement;
(d) the Company shall not (i) use commercially reasonable efforts as permitted under applicable laws and regulations to takewaive, amend or modify, or cause file a pleading seeking authority to be takenwaive, all actionsamend or modify, and to doany Definitive Document or the Restructuring without the Required Supporting Noteholders’ prior written consent (including via email), or cause to be done, all things necessary, proper, or advisable to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) take execute or file any action Definitive Document that, in whole or in part, is not consistent with this Agreement, or is not in form and substance reasonably requested by any Consenting Party acceptable to facilitate the implementation and consummation of the Transaction, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive DocumentsRequired Supporting Noteholders;
(e) to the extent applicable, timely file a formal objection to any legal motion filed with the Bankruptcy Court seeking the entry of an order modifying or structural impediment arises terminating the Company’s exclusive right to file and/or solicit acceptances of a plan of reorganization, directing the appointment of an examiner with expanded powers or a trustee, converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, dismissing the Chapter 11 Cases or for relief that would prevent, hinder(i) is inconsistent with this Agreement in any material respect, or delay (ii) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Transaction, the Company will support and take all steps reasonably necessary or desirable to address any such impedimentRestructuring;
(f) the Company shall promptly pay when due use reasonable best efforts to obtain, file, submit or register any and all the reasonable required Governmental Unit, regulatory and documented and invoiced fees, costs, and outthird-of-pocket expenses party approvals of the advisors for the Administrative Agent, the Revolving Lenders and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the CompanyRestructuring;
(g) maintain good standing and legal existence under the laws of the state or other jurisdiction in which such Company shall use commercially reasonable efforts to seek additional support for the TransactionParty is incorporated, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudentorganized or formed;
(h) to the extent the Ad Hoc Group Advisors or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, not (i) object to, delay, impede or take any material defectsother action that is inconsistent with, errors or omissionsthat is intended or reasonably likely to interfere with, delay, impede, prevent or postpone acceptance, confirmation or implementation of, the Restructuring, (ii) seek, solicit, encourage, assist, consent to, propose, file, support, participate in the formulation of, or enter or participate in any discussion or enter into any agreement, with respect any Person, regarding the negotiation or formulation of any Alternative Proposal, or (iii) publicly announce its intention not to pursue the liens granted by the Restructuring;
(i) (i) provide draft copies of all Definitive Documents, and all material motions or applications and other documents that any Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel Party intends to the Administrative Agent, in consultation file with the Company Parties and their counselBankruptcy Court, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory counsel to the Ad Hoc Group Advisors Secured Noteholder Committee and the Ad Hoc Convertible Noteholder Committee as soon as reasonably practicable (but no less than twenty four (24) hours) prior to the date when the applicable Company Party intends to execute or file any such pleading or other document (provided that the Company shall use its reasonable best efforts to provide to counsel to the Administrative Agent Ad Hoc Secured Noteholder Committee and the Ad Hoc Convertible Noteholder Committee the draft of any such document no later than two (2) Business Days before making such contemplated filing of such document) or such other time period agreed to by such counsel, (ii) consult in good faith with such counsel regarding the form and substance of any material property such proposed filing with the Bankruptcy Court, and (including real propertyiii) of not file any document with the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative AgentBankruptcy Court that, in consultation whole or in part, is not consistent with the Company Parties) on which liens have this Agreement, or is not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;
(i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent with, or that would delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheet, or take any other action that is barred by this AgreementRequired Supporting Noteholders;
(j) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this AgreementAgreement and except for changes resulting from or relating to the filing and prosecution of the Chapter 11 Cases or imposed by the Bankruptcy Court, solicit consents (i) use commercially reasonable efforts to preserve the relationships with current customers, distributors, suppliers, vendors, employees and others having business dealings with the Company, including but not limited to the performance of all material obligations under any executory contracts which have not been rejected and compliance with historical billing practices, (ii) maintain and insure their physical assets, properties and facilities in the current working order, condition and repair as of the date hereof (ordinary wear and tear excepted) and maintain all existing insurance on the foregoing consistent with past practices, (iii) not take any action, or omit to take any action, the intent of which is to cause the termination of its current executive officers (other than for cause), and (iv) maintain the Company’s books and records on a basis consistent with prior practice, including prior billing and collection practices;
(k) provide the Supporting Noteholders and their advisors with, and direct its employees, officers, directors, consultants, attorneys, accountants and other advisors and representatives to provide the Supporting Noteholders and their advisors (in each case subject to any amendmentapplicable confidentiality agreements) with, modification (i) timely responses to reasonable information requests from such Supporting Noteholders or supplement their advisors, (ii) reasonable access to the 2022 Notes IndentureCompany’s (A) facilities, properties, assets, contracts, books, records and any other information concerning the business and operations of the Company and (B) officers, management, employees, advisors and representatives regarding the Company’s liquidity, assets, liabilities, business, finances, strategies, prospects, the Credit AgreementChapter 11 Cases, and the general status of ongoing operations, in each case during normal business hours and at other reasonable times in a manner that does not unreasonably interfere with the normal business operations of the Company, and (iii) updates regarding any material developments regarding the Company’s liquidity, assets, liabilities, business, finances, strategies, prospects and operations, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documentsChapter 11 Cases and the Iroko Acquisition;
(l) not (i) seek discovery in connection with, prepare or commence any legal proceeding that challenges the Company will not seekamount, solicitvalidity, support, formulate, entertain, encourage, engage in enforceability or priority of the Egalet Claims of any inquiries or discussions concerningSupporting Noteholder, or enter into (ii) otherwise seek to restrict any agreements relating to rights of any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;Supporting Noteholders; and
(m) not increase in any manner the Company will promptly provide a Consenting Party with any documentation compensation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
benefits (n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditionsincluding severance, and use its best efforts to (iretention and incentive bonuses) preserve intact its present business organizationof any director, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state officer or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares employee of any Company securities Party in an amount that exceeds $100,000 for any individual director, officer or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction;
(p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) 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 could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (vii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliates, or material legal suit for payment of debt or securement of security from or by any person in respect of the Company; and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(q) the Company will not (i) waive any of the conditions to consummation of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive Documents, in each case, without the prior written consent of each Consenting Party, as applicableemployee.
Appears in 1 contract
Commitments of the Company. Subject During the Support Effective Period, the Company agrees that it shall, subject to the terms and conditions of this Agreement, Agreement (including those set forth in the Company agrees that, so long as no Termination Event has occurred:Term Sheet):
(a) on the Settlement Date, the Company will effectuate the RCF Restructuring in accordance with the provisions of this Agreement and the Term Sheet, including by entering into the Definitive Closing Documents in connection with the RCF Restructuring;
(b) on the Notes Exchange Commencement Date (unless such date is extended in accordance with the terms of this Agreement), the Company will distribute the documents for the Notes Exchange Offer use its commercially reasonable efforts to holders of the 2022 Notes in accordance with the provisions of this Agreement, the Offering Memorandum, the Term Sheet and the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) thereunder;
(c) on a timely basis, the Company shall negotiate in good faith the Definitive Closing Documents with the respective Parties thereto and execute and deliver each Definitive Closing Document to which it is to be a party;
(d) the Company shall (i) use commercially reasonable efforts as permitted under applicable laws and regulations to takeprepare, or cause to be takenprepared, all actions, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) take any action reasonably requested by any Consenting Party to facilitate the implementation and consummation of the Transaction, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents;
(e) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, the Company will support and take all steps reasonably necessary or desirable to address commence the Transactions as provided for in this Agreement as soon as reasonably practicable and consistent with the time frames contemplated in this Agreement, (iii) take all steps reasonably necessary to obtain any and all required regulatory and/or third-party approvals for the Transactions, (iv) consummate the Transactions as soon as reasonably practicable on terms consistent with this Agreement, including within the time frames contemplated in this Agreement, and (v) execute and deliver any other agreements, documents or instruments reasonably necessary to effectuate and consummate the Transactions;
(b) not (i) withdraw or terminate either the Secured Note Exchange Offer or the Registered Convertible Note Exchange Offer (other than due to the impossibility of fulfilling a conditin precedent other than the Minimum Participation Condition) or (ii) waive any condition precedent to consummation of either the Secured Note Exchange Offer or the Registered Convertible Note Exchange Offer, in each case without the prior written consent of the Required Secured Noteholders and the Required Convertible Noteholders (such impedimentconsent not to be unreasonably withheld, conditioned, or delayed);
(c) use its commercially reasonable efforts to timely file with the Securities and Exchange Commission (the "SEC") its Annual Report on Form 10-K for the year ended December 31, 2015 (the “2015 10-K”), which 2015 10-K shall contain all information required by Part III of such Form;
(d) file with the SEC, not later than the fifth business day following the date the Company files its 2015 10-K, the (i) Registration Statement on the appropriate form, and use its commercially reasonable efforts to have it declared effective by the SEC as soon as practicable thereafter, (ii) Convertible Note Exchange Registration Statement on the appropriate form, and use its commercially reasonable efforts to have it declared effective by the SEC as soon as practicable thereafter, (iii) New Converts Registration Statement on the appropriate form, and use its commercially reasonable efforts to have it declared effective by the SEC at or prior to the Convertible Note Exchange Settlement Date, and (iv) Other Filings, and use its commercially reasonable efforts to cooperate with the SEC to complete its review or comment process with respect to the Other Filings as soon as practicable;
(e) not later than the fifth business day following the date the Company files with the SEC its 2015 10-K, commence the Registered Convertible Note Exchange Offer in compliance with Rule 13e-4 under the Exchange Act;
(f) use its commercially reasonable efforts to provide counsel to the Support Party with draft copies of all material documents, filings, agreements and instruments (including, without limitation, all Transaction Documents) that the Company intends to file or execute in connection with the Transactions as soon as reasonably practicable, and in no event later than three business days prior to the date that it intends to file or execute such documents filings, agreements and instruments, and the Company shall promptly pay when due incorporate all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses reasonably requested comments of the advisors for the Administrative AgentSupport Party to such documents, the Revolving Lenders filings, agreements and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the Companyinstruments;
(g) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudent;
(h) to the extent the Ad Hoc Group Advisors not directly or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;
(i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent withindirectly, or that would encourage any other entity to directly or indirectly, delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheetimpede, or take any other action that is barred by this Agreementor inaction to interfere with the acceptance, implementation, or consummation of the Transactions;
(jh) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents;
(l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;
(m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
(n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required continue to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:course;
(i) amend its articles of incorporationcomply with all applicable laws, bylaws or other similar organizational documents rules and regulations (whether by mergerincluding, consolidation or otherwise);
(ii) splitwithout limitation, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereofSecurities Act and the Exchange Act and the rules and regulations promulgated under each) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company its conduct and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction;
(p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress completion of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) 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 could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (vii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliates, or material legal suit for payment of debt or securement of security from or by any person in respect of the Company; and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(qj) hold an annual or special meeting of its stockholders to obtain the Company will not (i) waive any of the conditions to consummation of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive DocumentsStockholder Approval by no later than June 30, in each case, without the prior written consent of each Consenting Party, as applicable2016.
Appears in 1 contract
Commitments of the Company. Subject Except as set forth in Section 8 hereof, subject to compliance in all material respects by the other Parties with the terms and conditions of this Agreement, and without limiting the mutual commitments set forth in Section 5.01 hereof in any respect, the Company hereby covenants and agrees that, so long as no Termination Event has occurredto:
(a) on file the Settlement DatePlan (or Plans, if separate), the Company will effectuate Plan Solicitation Materials for the RCF Restructuring in accordance with the provisions of this Agreement Plan (or Plans, if separate), and the Term Sheetmotion or motions to approve the Disclosure Statement (or Disclosure Statements, including by entering into if separate) on or before 120 days following the Definitive Closing Documents in connection with the RCF RestructuringPetition Date;
(b) (i) obtain entry of the Confirmation Order for the Plan (or Plans, if separate), each with all applicable exhibits, appendices, Plan Supplement documents, and related documents, and (ii) cause the Effective Date to occur by the Outside Date;
(c) within 60 days after the Petition Date, agree to the form on one or more Joint Operating Agreements reasonably satisfactory to the Notes Exchange Commencement Date Lenders, provided, for the avoidance of doubt, that the Company shall have no obligation to seek approval of the Joint Operating Agreement within such period and instead the Joint Operating Agreement will be approved as part of the Plan;
(unless d) within 60 days after the Petition Date, agree to the form of the Transition Services Agreement reasonably satisfactory to the Lenders, provided, for the avoidance of doubt, that the Company shall have no obligation to seek approval of the Transition Services Agreement within such date is extended period and instead the Transition Services Agreement will be approved as part of the Plan; and
(e) at all times operate in accordance with, and comply with the requirements set forth for, the budgets required by the Cash Collateral Orders in accordance with the terms of this Agreement)the Cash Collateral Orders; provided, however, that such budgets, capital expenditures, and asset sales shall be subject to paragraph 7 and paragraph 16 of the Interim Cash Collateral Order and the equivalent provision of the final cash collateral order, which provisions provide consent rights over such budgets, capital expenditures, and asset sales to, as applicable, the Company will distribute the documents administrative agent for the Notes Exchange Offer to holders of the 2022 Notes in accordance with the provisions of this Agreement, the Offering Memorandum, the Term Sheet LINN Credit Agreement and the applicable requirements ▇▇▇▇▇ Credit Agreement. For the avoidance of any doubt, it shall not be required that the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the ”Exchange Act”), Plan for ▇▇▇▇▇ and the rules and regulations of Plan for LINN proceed on the Securities and Exchange Commission (the “SEC”) thereunder;
(c) on a timely basis, the Company same timeline. The Parties shall negotiate in good faith towards a timeline for each Plan that shall maximize the Definitive Closing Documents with the respective Parties thereto and execute and deliver each Definitive Closing Document to which it is to be a party;
(d) the Company shall (i) use commercially reasonable efforts as permitted under applicable laws and regulations to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective the Transaction and all other actions contemplated in connection therewith and under the Definitive Documents, (ii) take any action reasonably requested by any Consenting Party to facilitate the implementation and consummation of the Transaction, and (iii) refrain from taking any actions inconsistent with, and not failing or omitting to take an action that is required by, this Agreement or the Definitive Documents;
(e) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, the Company will support and take all steps reasonably necessary or desirable to address any such impediment;
(f) the Company shall promptly pay when due all the reasonable and documented and invoiced fees, costs, and out-of-pocket expenses of the advisors for the Administrative Agent, the Revolving Lenders and the Ad Hoc Group in accordance with their respective engagement letters, if any. Nothing, in this Section 3(f) shall, or shall be deemed to, modify, amend, limit, or otherwise alter the terms of or obligations under the Credit Agreement Documents, the 2022 Notes Documents, or any other agreement or undertaking entered into by the Company;
(g) the Company shall use commercially reasonable efforts to seek additional support for the Transaction, including the Notes Exchange Offer, from holders of 2022 Notes and Revolving Facility Claims to the extent reasonably prudent;
(h) to the extent the Ad Hoc Group Advisors or counsel to the Administrative Agent reasonably identify, in consultation with counsel to the Company Parties, (i) any material defects, errors or omissions, with respect to the liens granted by the Company in favor of the Priority Collateral Trustee on the collateral securing the Priority Lien Obligations, the Company shall take such actions as are reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent, in consultation with the Company Parties and their counsel, to promptly correct such material defects, errors or omissions, in a manner reasonably satisfactory to the Ad Hoc Group Advisors and counsel to the Administrative Agent or (ii) any material property (including real property) of the Company Parties (with materiality determined in the reasonable discretion of the Ad Hoc Group Advisors and counsel to the Administrative Agent, in consultation with the Company Parties) on which liens have not been granted by the Company in favor of the Priority Collateral Trustee to secure the Priority Lien Obligations, the Company shall agree to take actions reasonably requested by the Ad Hoc Group Advisors or counsel to the Administrative Agent to promptly grant liens on such property in favor the Priority Collateral Trustee to secure the Priority Lien Obligations including, without limitation by promptly executing and delivering control agreements for accounts in form and substance reasonably acceptable to the Priority Collateral Trustee, the Ad Hoc Group Advisors and counsel to the Administrative Agent (including for that certain account with an account number ending in 1560) or by transferring funds from accounts without such control agreements into accounts where such agreements have been executed and delivered; provided that, after the Company Parties have undertaken commercially reasonable efforts to promptly correct any such defects, errors or omissions or to promptly take such reasonably requested actions, the failure to so remedy such defects, errors or omissions or to take such actions shall not be a condition precedent to the occurrence of the Transaction, but the Company shall correct any such defects, errors or omissions or take such actions on a post-closing timeline reasonably acceptable to the Ad Hoc Group Advisors and counsel to the Administrative Agent (but in no event later than 90 days after the Settlement Date or such later date as the Ad Hoc Group Advisors and the Administrative Agent may agree in their reasonable discretion); provided, further, that the obligations in this Section 3(h) shall survive the Termination Date;
(i) the Company shall not object to, delay or impede the Transaction or the implementation thereof or initiate any legal proceedings that are inconsistent with, or that would delay, prevent, frustrate, or impede the approval, solicitation, or consummation of, the Transaction, the Definitive Documents, or any other transactions outlined therein, or in the Offering Memorandum or the Term Sheet, or take any other action that is barred by this Agreement;
(j) the Company will not directly or indirectly arrange, participate in or consent to any credit facility, bond issuance, or other financing, rights offering, or issuance of debt or equity securities (including in connection with any exchange), or otherwise support or participate in any reorganization, merger, consolidation, business combination, or other recapitalization or debt restructuring, of the Company (whether through a judicial process or otherwise) other than in the ordinary course of business or in connection with the Transaction;
(k) the Company will not exchange or offer to exchange any 2022 Notes other than pursuant to the Notes Exchange Offer, or, except as expressly contemplated by this Agreement, solicit consents to any amendment, modification or supplement to the 2022 Notes Indenture, the Credit Agreement, the Collateral Trust Agreement or any related guarantees, security documents, intercreditor agreements or ancillary documents;
(l) the Company will not seek, solicit, support, formulate, entertain, encourage, engage in any inquiries or discussions concerning, or enter into any agreements relating to any Alternative Transaction, and if the Company receives an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction, the Company will, within 24 hours of the receipt of such proposal or expression of interest, notify counsel to the Administrative Agent and the Ad Hoc Group Advisors of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person or group of persons involved in making such proposal;
(m) the Company will promptly provide a Consenting Party with any documentation or information that is reasonably requested by such Consenting Party or is reasonably necessary to consummate the Transactions and that is not unduly burdensome to the Company to provide, subject to any confidentiality restrictions to which the Company may be subject;
(n) the Company will conduct its business in the ordinary course consistent with past practice and in light of then-current market conditions, and use its best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations required to operate the Company’s business, (iii) keep available the services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, suppliers and others having material business relationships with it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice and (vi) maintain their good standing under the laws of the state or other jurisdictions in which they are incorporated or organized. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, the Company shall not:
(i) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(ii) split, combine or reclassify any shares of capital stock of the Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company securities;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company securities or amend any term of any Company security (in each case, whether by merger, consolidation or otherwise);
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of business of the Company and in a manner that is consistent with past practice;
(v) sell, lease or otherwise transfer, or create or incur any lien on, any of the Company’s assets, securities, properties, interests or businesses, other than in the ordinary course of business consistent with past practice;
(vi) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(vii) make any payment in satisfaction of any existing funded indebtedness other than regularly scheduled payments of interest and principal;
(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof;
(ix) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto or that could, after the Settlement Date, limit or restrict in any material respect the Company or any of its respective Affiliates, from engaging or competing in any line of business, in any location or with any Person; or
(x) enter into any agreement or arrangement that waives, releases or assigns any material rights, claims or benefits of the Company;
(o) the Company will use commercially reasonable efforts to obtain any and all necessary or required governmental, regulatory and/or third-party approvals and consents for the implementation or consummation for the Transaction;
(p) the Company will promptly notify the Ad Hoc Group Advisors and counsel to the Administrative Agent as to: (i) any material change in the business or financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Transactions, including progress in relation to the Note Exchange Offer and the negotiations of the Definitive Closing Documents; (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iv) any material governmental or third party complaints, litigations, investigations or hearings; (v) 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 could reasonably be expected to result in the termination of, this Agreement; (vi) any matter or circumstance that constitutes or could reasonably be expected to constitute a material impediment to the implementation or consummation of the Transaction; (vii) any notice of any commencement of any involuntary insolvency proceedings of PEC or any other Company Party or any of their Affiliates, or material legal suit for payment of debt or securement of security from or by any person in respect of the Company; and (viii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; and
(q) the Company will not (i) waive any of the conditions to consummation of the Transaction set forth in the Definitive Documents or (ii) amend any of the terms of the Definitive Documents, in each case, without the prior written consent value of each Consenting Party, as applicableestate.
Appears in 1 contract