Common use of Negative Commitments Clause in Contracts

Negative Commitments. Subject in all respects to Section 7, and except pursuant to consummation of the Restructuring Transactions, during the Agreement Effective Period, each of the Company Parties shall not, without the prior written consent of the affected Required Consenting Stakeholder, directly or indirectly: (a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions; (b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of, the Restructuring Transactions as contemplated in this Agreement; (c) waive, amend or modify any of the Definitive Documents, or, if applicable, file with the Bankruptcy Court a pleading seeking to waive, amend or modify any term or condition of any of the Definitive Documents, which waiver, amendment, modification or filing contains any provision that is not consistent in all material respects with this Agreement, the Merger Agreement, and the Plan, as applicable; (d) in connection with an implementation or potential implementation of the Restructuring Transactions through the In-Court Restructuring, assert, or support any assertion by any Person, that, in order to act on the provisions of Section 12, the Consenting Stakeholders shall be required to obtain relief from the automatic stay from the Bankruptcy Court (and each of the Company Parties hereby waives, to the greatest extent possible, the applicability of the automatic stay to the giving of any notice of termination in accordance with Section 12); and (e) if the Restructuring Transactions are to be implemented through the In-Court Restructuring, file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement.

Negative Commitments. Subject Except as may be permitted by Section 8 or as may be modified or waived in all respects to Section 7, and except pursuant to consummation of advance in writing by the Restructuring TransactionsRequired Consenting Senior Noteholders, during the Agreement RSA Effective Period, each of the Company Parties shall not, without the prior written consent of the affected Required Consenting Stakeholder, directly or indirectly: (a) object to, delay, impede, or take any other action to interfere with approval, acceptance, implementation, or consummation of the Restructuring Transactions; (b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and implementation, or consummation of, the Restructuring Transactions as contemplated in this AgreementTransactions; (c) (c) (i) execute, deliver, and/or file in any Proceeding any agreement, instrument, motion, pleading, order, form, or other document that is to be utilized to implement or effectuate, or that otherwise relates to, this Agreement and/or the Restructuring Transactions, including any Definitive Documents, that, in whole or in part, is not (x) consistent in any material respect with this Agreement or (y) otherwise in form and substance acceptable to the Required Consenting Senior Noteholders, or, if applicable, file any pleading in any Proceeding seeking authorization to accomplish or effect any of the foregoing, or (ii) waive, amend amend, or modify any of the Definitive Documents, or, if applicable, or file with the Bankruptcy Court in any Proceeding a pleading seeking to waive, amend amend, or modify any term or condition of any of the Definitive Documents, in either case, which waiver, amendment, modification modification, or filing contains any provision that is not (x) consistent in all material respects with this Agreement, or (y) otherwise acceptable to the Merger Agreement, and the Plan, as applicableRequired Consenting Senior Noteholders; (d) seek discovery in connection with, prepare, or commence any proceeding or any other action (including the Sale Proceedings and the Liquidation Proceedings) that challenges (i) the amount, validity, allowance, character, enforceability, or priority of any Company Claims/Equity Interests of any of the Consenting Senior Noteholders, (ii) the validity, enforceability, or perfection of any lien or other encumbrance securing any Company Claims/Equity Interests of any of the Consenting Senior Noteholders, (iii) otherwise seek to restrict any contractual rights of any of the Consenting Senior Noteholders under the Senior Notes Documents; (iv) otherwise commence any action against any of the Consenting Senior Noteholders; or (iv) support any Person in connection with an implementation or potential implementation any of the Restructuring Transactions through the In-Court Restructuring, acts described in clause (i) or clause (ii) of this Section 7.02(d); (e) assert, or support any assertion by any Personthird party, that, in order to act on the provisions of Section 1212 hereof, the Consenting Stakeholders Senior Noteholders shall be required to obtain relief from the automatic any stay from the Bankruptcy Court or injunction on creditor actions in a Proceeding (and each of the Company Parties Parties’ hereby waiveswaive, to the greatest extent possible, the applicability of the automatic any such stay or injunction to the giving of any termination notice of termination in accordance with Section 1212 hereof); andprovided that nothing herein shall prejudice any Party’s right to argue that the giving of such termination notice or the exercise of any remedy was not proper under the Agreement; (f) except as contemplated by this Agreement, enter into any contract with respect to any bridge or debtor-in-possession financing, cash collateral usage, exit financing, and/or other financing, debt or equity arrangements without the advance written consent (by e-mail or otherwise) if of the Required Consenting Senior Noteholders; (g) grant or agree to grant any increase in the current wages, salary, bonus, commissions, retirement benefits, severance, or other compensation or benefits of any director, manager, employee, or officer of any Company Party, whether scheduled prior to, as of or after the RSA Effective Date, except for any increase that (i) is implemented in the ordinary course of business consistent with past practices and is not inconsistent with the Restructuring Transactions are contemplated by this Agreement, or (b) with the prior written consent of the Required Consenting Senior Noteholders (including with respect to any key employee retention or incentive programs implemented by the Company Parties); (h) except as expressly contemplated by this Agreement, (i) authorize, create, issue, sell, or grant any additional Equity Interests in any Company Party or (ii) reclassify, recapitalize, redeem, purchase, acquire, authorize or declare or make any distribution on any Equity Interests in any Company Party; (i) incur or commit to incur any capital expenditures, or pay any fees, costs, expenses or other amounts due (including in respect of any shareholder, management, or similar arrangement) to any holders of Company Claims/Equity Interests (including the holders of Seller Notes/Debt Claims), in each case, absent the prior written consent of the Required Consenting Senior Noteholders; (j) except to the extent expressly permitted by Section 8.01, seek, solicit, knowingly encourage, propose, assist in, consent to, or vote for, enter into, pursue, consummate, or participate in any discussions or any agreement with any Person regarding, any Alternative Restructuring Proposal; (k) except to the extent expressly contemplated by this Agreement or the Restructuring Term Sheet, amend or propose to amend any Company Party’s Organizational Documents; (l) commence any Liquidation Proceeding or CCAA Proceeding unless the applicable Definitive Documents and materials related thereto shall be consistent with this Agreement or otherwise in form and substance acceptable to the Required Consenting Senior Noteholders; (m) announce publicly, or announce to any of the Consenting Senior Noteholders or other holders of Company Claims/Equity Interests, their intention not to support any of the Restructuring Transactions; (n) make or change any entity classification election (including, with respect to any Company Party that is treated as a partnership or a disregarded Entity for U.S. federal income tax purposes, an election to be implemented through the In-Court Restructuringtreated as a corporation for U.S. federal income tax purposes), file any motionamended tax return, pleadingenter into any closing agreement with respect to taxes, consent to any extension or waiver of the limitations period applicable to any tax claim or assessment, enter into any installment sale transaction, adopt or change any accounting methods, practices or periods for tax purposes, make or request any tax ruling, enter into any tax sharing or similar agreement or arrangement, or Definitive Documents with settle any tax claim or assessment; or (o) take or permit any action that would result in a (i) change of ownership of any Company Party under Section 382 of the Bankruptcy Court Code, (ii) disaffiliation of any Company Party from the Company Parties’ consolidated income tax group under Section 1502 of the Code, (iii) realization of any taxable income outside the ordinary course of the Company Parties’ business, or (iv) change of ownership of any other court (including any modifications or amendments thereof) thatCompany Party under section 382 of the Tax Code, in whole or in parteach case, is not materially consistent with this Agreementexcept as contemplated by the transactions described herein.

Negative Commitments. Subject Except as set forth in all respects to Section 7, and except pursuant to consummation of the Restructuring Transactions6.3 hereof, during the Agreement Effective Period, each of the Company Parties Debtor shall not, without the prior written consent of the affected Required Consenting Stakeholder, directly or indirectly: (a) object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions; (b) take any action that is inconsistent in any material respect with, or is intended to that would frustrate or impede impede, the approval, implementation and implementation, or consummation of, of the Restructuring Transactions as contemplated described in this Agreement, the Plan, or the Definitive Documents; (c) waive, amend or modify any of the Definitive Documents, or, if applicable, file with the Bankruptcy Court a pleading seeking to waive, amend or modify any term or condition of any of the Definitive Documents, which waiver, amendment, modification or filing contains any provision that is not consistent in all material respects with this Agreement, the Merger Agreement, and the Plan, as applicable; (d) in connection with an implementation or potential implementation of the Restructuring Transactions through the In-Court Restructuring, assert, or support any assertion by any Person, that, in order to act on the provisions of Section 12, the Consenting Stakeholders shall be required to obtain relief from the automatic stay from the Bankruptcy Court (and each of the Company Parties hereby waives, to the greatest extent possible, the applicability of the automatic stay to the giving of any notice of termination in accordance with Section 12); and (e) if the Restructuring Transactions are to be implemented through the In-Court Restructuring, file any motion, pleading, or Definitive Documents Document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent inconsistent with this Agreement, the Plan, or the Restructuring Transactions; (d) amend, terminate, alter, supplement, restate, or otherwise modify any Definitive Document, in whole or in part, in a manner that is inconsistent with this Agreement, the Plan, or the Restructuring Transactions; (e) make or change any tax election, change any annual tax accounting period, adopt or change any method of tax accounting, file any amended tax return, settle any tax claim or assessment, surrender any right to claim a tax refund, offset, or other reduction in tax liability or consent to any extension or waiver of the limitation period applicable to any tax claim or assessment, in each case (i) that is material and inconsistent with past practice except to the extent needed to comply with this Agreement, the Plan or the Restructuring Transactions, without using commercially reasonable efforts to consult in good faith with the Required Ad Hoc Senior Noteholder Parties and the Official Committee, provided that the Debtor shall use commercially reasonable efforts to resolve any disagreements with the Required Ad Hoc Senior Noteholder Parties and/or the Official Committee with respect to such action prior to taking such action or (ii) if inconsistent in any material respect with this Agreement, the Plan or the Restructuring Transactions, without the written consent of the Required Ad Hoc Senior Noteholder Parties and the Official Committee (such consent not to be unreasonably withheld, conditioned, or delayed); (f) make any tax election or change in method of accounting that has the effect of materially accelerating or materially deferring any material item of income, loss, deduction or credit or materially increases the taxable income of the Debtor or its subsidiaries, as compared to the tax position of the Debtor or its subsidiaries as applicable had such action not been taken, without the written consent of the Required Ad Hoc Senior Noteholder Parties and the Official Committee (such consent not to be unreasonably withheld, conditioned, or delayed); (g) enter into any material closing agreement or make any written submissions to the Internal Revenue Service for a private letter ruling from the Internal Revenue Service without the written consent of the Required Ad Hoc Senior Noteholder Parties and the Official Committee (such consent not to be unreasonably withheld, conditioned, or delayed); or (h) sell, dispose of, or otherwise dispense with any material assets outside of the ordinary course of business prior to consulting with the Ad Hoc Group of Senior Noteholders and the Official Committee and providing information reasonably necessary for the Ad Hoc Group of Senior Noteholders and the Official Committee, in each case subject to appropriate confidentiality arrangements, to meaningfully assess the request.

Negative Commitments. Subject Except as (x) set forth in all respects to Section 7, and except pursuant to consummation of the Restructuring Transactionsor (y) expressly contemplated by this Agreement, during the Agreement Effective Period, each of the Company Parties shall not, without the prior written consent of the affected Required Consenting Stakeholder, directly or indirectly: (a) object to, delay, impede, or take any other action to interfere or that would be inconsistent with the acceptance, implementation, or consummation of the Restructuring Transactions, other than as permitted herein; or (b) seek, solicit, participate in, negotiate, encourage, propose, support, or vote for any Alternative Transaction; (bc) take any action that is inconsistent in any material respect withwith or would have a material adverse impact upon, or that is intended to frustrate or impede reasonably likely to frustrate, impede, or delay approval, implementation and implementation, or consummation of, the Restructuring Transactions as contemplated described in this Agreement; (c) waive, amend or modify any of the Definitive Documents, or, if applicable, file with the Bankruptcy Court a pleading seeking to waive, amend or modify any term or condition of any of the Definitive Documents, which waiver, amendment, modification or filing contains any provision that is not consistent in all material respects with this Agreement, the Merger Agreement, and the Plan, as applicable; (d) in connection with an implementation or potential implementation of the Restructuring Transactions through the In-Court Restructuring, assertconsummate, or support enter into a binding agreement to consummate, any assertion by any Person, that, in order to act on the provisions of Section 12, the Consenting Stakeholders shall be required to obtain relief from the automatic stay from the Bankruptcy Court (and each of the Company Parties hereby waives, to the greatest extent possible, the applicability of the automatic stay to the giving of any notice of termination in accordance with Section 12); andAlternative Transaction; (e) if the Restructuring Transactions are to be implemented through the In-Court Restructuring(i) form, file any motiondesignate, pleadingacquire, or Definitive otherwise create a “Unrestricted Subsidiary” as defined in the Existing Documents or (ii) enter into any transaction with (including by selling or transferring property or assets to, or purchasing or acquiring property or assets from) any “Unrestricted Subsidiary”; provided that the Company shall be permitted to do transactions contemplated in this Section 6.02(e), in addition to other customary investments and merger and acquisition transactions, in an aggregate amount not to exceed $100 million, in each case solely to the extent the proceeds of such transactions are reinvested in the Company Parties, and any such transactions shall not be deemed a breach of this Agreement if such cap is not exceeded; (f) amend its organizational documents; provided that the Company Parties may increase their authorized shares in connection with the Bankruptcy Court Transactions and take actions to effectuate the Governance Term Sheet; (g) enter into any material merger, consolidation, disposition, recapitalization, acquisition, loan, investment, dividend, incurrence of indebtedness or liens, or other material transaction outside of the ordinary course of business, other than as contemplated by the Transactions; provided that (i) the Parties expressly acknowledge that the adoption and operation of a Stockholder Rights Plan, as delivered to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (as counsel to the Ad Hoc Group) on March 15, 2023 (subject to revisions that are (A) necessary to implement clause (b) of Section 8.05 or (B) not adverse to the Ad Hoc Group) shall not constitute a breach by any Company Party under this Agreement and (ii) the Company Parties may (A) incur up to $250 million of additional indebtedness (which indebtedness may be secured) provided that any draw request under the NPA must be made in accordance with the terms of the Term Sheet and (B) replace letters of credit under the Credit Agreement without violating this Agreement; (h) incur any material liens, security interests, or encumbrances outside of the ordinary course of business, other court (including any modifications or amendments thereof) that, in whole than as contemplated by the Transactions or in partconnection with the incurrence of any permitted indebtedness under Section 6.02(g); (i) make any payment in satisfaction of any existing funded indebtedness other than as required under the Existing Documents or as contemplated by the Transactions; or (j) make any material investments, is not materially consistent with this Agreementacquire any material assets, or dispose or sell any material assets outside of the ordinary course of business, other than as contemplated by the Transactions and Section 6.02(e).

Negative Commitments. Subject Except as set forth in all respects to Section 79, and except pursuant to the consummation of the Restructuring Transactions, during the Agreement Effective Period, each of the Company Parties shall not, without the prior written consent of the affected Required Consenting StakeholderStakeholders, directly or indirectly: (a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions; (b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation implementation, and consummation of, the Restructuring Transactions as contemplated in this AgreementTransactions; (c) (i) execute or file any agreement, instrument, pleading, order, form, or other document that is utilized to implement or effectuate, or that otherwise relates to, this Agreement, the Plan, and/or the Restructuring Transactions that, in whole or in part, is not consistent in all material respects with this Agreement, the Out-of-Court Term Sheet, or the Chapter 11 Term Sheet, as applicable, or otherwise in form and substance reasonably acceptable to the Required Consenting Stakeholders, subject to the Consenting Shareholders’ In-Court Consent Right, and (ii) waive, amend amend, or modify any of the Definitive Documents, or, if applicable, or file with the Bankruptcy Court a pleading seeking to waive, amend amend, or modify any term or condition of any of the Definitive Documents, which waiver, amendment, modification modification, or filing contains any provision that is not consistent in all material respects with this Agreement, the Merger AgreementOut-of-Court Term Sheet, and or the PlanChapter 11 Term Sheet, as applicable, or otherwise reasonably acceptable to the Required Consenting Stakeholders, subject to the Consenting Shareholders’ In-Court Consent Right; (d) to the extent the Restructuring Transactions are to be implemented through the In-Court Restructuring, move for an order from the Bankruptcy Court authorizing or directing the assumption or rejection of any executory contract (including any employment agreement or employee benefit plan) or unexpired lease, other than any assumption or rejection that (i) is done with the advance written consent of the Required Consenting Lenders, or (ii) is expressly contemplated by the Plan; (e) (i) seek discovery in connection with, prepare, or commence any proceeding or other action that challenges (A) the amount, validity, allowance, character, enforceability, or priority of any Company Claims/Interests of any of the Consenting Stakeholders, or (B) the validity, enforceability, or perfection of any lien or other encumbrance securing any Company Claims/Interests of any of the Consenting Lenders, (ii) otherwise seek to restrict any rights of any of the Consenting Stakeholders, or (iii) support any Person in connection with any of the acts described in clause (i) or clause (ii) of this Section 8.02(e); (f) enter into any contract with respect to debtor-in-possession financing, cash collateral usage, exit financing, and/or other financing arrangements, other than as contemplated under the Chapter 11 Term Sheet; (g) (i) enter into any contract which, if existing as of the Execution Date, would constitute a Material Contract had it been entered into prior to the Execution Date, (ii) amend, supplement, modify, or terminate any Material Contract, or (iii) allow or permit any Material Contract to expire; (h) in connection with an implementation or potential implementation of the Restructuring Transactions through the In-Court Restructuring, assert, or support any assertion by any Person, that, in order to act on the provisions of Section 1213, the Consenting Stakeholders Lenders shall be required to obtain relief from the automatic stay from the Bankruptcy Court (and each of the Company Parties hereby waives, to the greatest extent possible, the applicability of the automatic stay to the giving of any notice of termination in accordance with Section 1213); and; (ei) allow or permit any of their respective Permits to lapse, expire, terminate or be revoked, suspended or modified, or to suffer any fine, penalty or other sanctions related to any of their respective Permits; (j) grant or agree to grant (including pursuant to a key employee retention or incentive plan or other similar agreement or arrangement) any additional, or any increase in the, wages, salary, bonus, commissions, retirement benefits, pension, severance, or other compensation or benefits (including in the form of any vested or unvested Equity Interests of any kind or nature) of any director, manager, officer, or employee of, or any consultant or advisor that is retained or engaged by, any of the Company Parties, except in the ordinary course of business; (k) enter into, adopt or establish any new compensation or benefit plans or arrangements (including employment agreements and any retention, success or other bonus plans), or amend or terminate any existing compensation or benefit plans or arrangements (including employment agreements); (l) make or change any tax election (including, with respect to any Debtor that is treated as a partnership or disregarded entity for U.S. federal income tax purposes, an election to be treated as a corporation for U.S. federal income tax purposes), file any amended tax return, enter into any closing agreement with respect to taxes, consent to any extension or waiver of the limitations period applicable to any tax claim or assessment, enter into any installment sale transaction, adopt or change any accounting methods, practices, or periods for tax purposes, make or request any tax ruling, enter into any tax sharing or similar agreement or arrangement, or settle any tax claim or assessment; (m) take or permit any action that would result in a (i) disaffiliation of any Company Party from the Company Parties’ consolidated income tax group under Section 1502 of the Code, or (ii) realization of any taxable income outside the ordinary course of the Company Parties’ business; (n) amend any of their respective Organizational Documents in a manner that is materially inconsistent with this Agreement or the Plan; (o) authorize, create, or issue any additional Equity Interests in any of the Company Parties, or redeem, purchase, acquire, declare any distribution on, or make any distribution on any Equity Interests in any of the Company Parties; (p) if the Restructuring Transactions are to be implemented through the In-Court Restructuring, file any motion, pleadingpay, or Definitive Documents with agree to pay, any indebtedness, liabilities or other obligations (including any accounts payable or trade payable) that existed prior to the Petition Date, unless the Bankruptcy Court authorizes the Debtors to pay such indebtedness, liabilities, or any other court obligations (including any modifications accounts payable or amendments thereoftrade payable) thatpursuant to the relief granted in connection with the First Day Pleadings; (q) seek, solicit, support, encourage, propose, assist, consent to, or vote for, enter or participate in whole any negotiations or any agreement with any Person regarding, pursue or consummate, any Alternative Restructuring; (r) announce publicly their intention not to support the Restructuring Transactions; or (s) consummate the Restructuring Transactions unless each of the conditions to the consummation of such transactions set forth in part, is not materially consistent with this Agreement, the Out-of-Court Term Sheet, and/or the Disclosure Statement has been satisfied (or waived by the applicable Required Consenting Stakeholders in their sole discretion).