Common use of Commitments of Company Clause in Contracts

Commitments of Company. The Company shall (a) support and use reasonable commercial efforts to complete the Restructuring on the terms set forth in the Restructuring Term Sheet, (b) use reasonable commercial efforts to do all things necessary and appropriate in furtherance of the Restructuring embodied in the Restructuring Term Sheet, including, without limitation, if the Chapter 11 Case is commenced (i) taking all steps reasonably necessary to obtain an order of the United States Bankruptcy Court in which the Chapter 11 Case is filed (the “Bankruptcy Court”), acceptable in all material respects to the Required Consenting Noteholders, confirming a plan of reorganization consistent with the terms set forth in the Restructuring Term Sheet (the “Plan”) within the timeframes contemplated by this Agreement, and (ii) taking all steps reasonably necessary and desirable to cause the effective date of the Plan to occur within the timeframes contemplated by this Agreement, (c) obtain any and all required regulatory and/or third-party approvals for the Restructuring embodied in the Restructuring Term Sheet and (d) except as provided in Section 29, not take any action that is inconsistent with, or is intended or is likely to interfere with consummation of, the Restructuring and the transactions embodied in the Restructuring Term Sheet, including, without limitation, from and after the date hereof, not directly or indirectly, seek, pursue, propose or support, or encourage the pursuit, proposal or support, of any offer to restructure the Company, including proposing a plan of reorganization that is inconsistent with, and could reasonably be expected to prevent, delay or impede, the Restructuring of the Company in accordance with the terms set forth in the Plan.

Commitments of Company. The Subject to the terms and conditions hereof, unless and until this Agreement has been terminated in accordance with the terms hereof, each Company shall Party shall: (a) support and use reasonable commercial efforts to complete the Restructuring on the terms set forth in the Restructuring Term Sheet, (b) use reasonable commercial efforts to do all things necessary and appropriate in furtherance of the Restructuring embodied in the Restructuring Term Sheet, including, without limitation, if the Chapter 11 Case is commenced (i) taking all steps reasonably necessary to obtain an order of the United States Bankruptcy Court in which the Chapter 11 Case is filed (the “Bankruptcy Court”), acceptable in all material respects to the Required Consenting Noteholders, confirming a plan of reorganization consistent with the terms set forth in the Restructuring Term Sheet (the “Plan”) within the timeframes contemplated by this Agreement, and (ii) taking take all steps reasonably necessary and desirable to cause pursue, support, obtain additional support for, solicit, implement, and consummate the effective date Transactions in accordance with the terms and conditions set forth in this Agreement (including the milestones set forth in Section 3), including (i) filing the Tender Offer Statement and the Registration Statement; (ii) coordinating and facilitating the placement of the Plan New Money Notes; and (iii) soliciting and implementing the Exchange Transactions; (b) use commercially reasonable efforts to occur within address any comments from the timeframes contemplated by this AgreementSEC with respect to the Tender Offer Statement and the Registration Statement, if applicable; (c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transactions contemplated herein, take all steps reasonably necessary and desirable to address any such impediment; (d) use commercially reasonable efforts to, and support the Consenting Creditors’ efforts to, obtain any and all required regulatory Governmental Approvals and/or third-party approvals for the Restructuring embodied Transactions, including any approvals or the expiration of any waiting periods; provided that any agreements with or commitments to any Governmental Regulatory Authority, including any decision to accept and/or not to oppose any proposed material conditions or limitations on any such required Governmental Approvals, shall require the prior approval of the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders; (e) maintain good standing under the jurisdiction in which each Company Party is incorporated or organized; (f) except to the extent that the failure to conduct the business in accordance with this subclause would not be reasonably expected to have, individually or in the Restructuring aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), or financial condition of the Company Parties, conduct the business of each of the Company Parties in the ordinary course (other than any changes in furtherance of the Transactions), substantially consistent with past practice and in light of then-current market conditions, and use its commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its Governmental Approvals, material licenses, permits, consents, franchises, approvals and authorizations required to operate its business, and (iii) preserve relationships with its customers, suppliers and others having material business relationships with it; provided that the foregoing shall not restrict the ability of the Company Parties to enter into the DBS Transactions; (g) (i) complete the preparation, as soon as practicable after the Agreement Effective Date, of each of the Definitive Documents not executed or not in a form attached to this Agreement as of the Agreement Effective Date in form and substance consistent with the Transaction Term Sheet and acceptable to the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders; (dii) except negotiate in good faith with each Co-Op Group Counsel regarding the form and substance of the applicable Definitive Documents in advance of the execution, distribution or use (as applicable) thereof; and (iii) provide each of the Definitive Documents to, and afford reasonable opportunity (in any event, no less than four Business Days) for comment and review of each of the Definitive Documents by the Co-Op Group Counsel in advance of any filing, execution, distribution, or use (as applicable) thereof; provided, however, that the obligations under this Section 5.2(g) shall in no way alter or diminish any right expressly provided in Section 29to the Company Parties, not the Required Consenting DNC 2025 Noteholders, or the Required Consenting DNC 2026 Noteholders, as applicable, under this Agreement to review, comment on and/or consent to the form and/or substance of any document or agreement; (h) actively oppose and object to the efforts of any party seeking to object to, delay, impede or take any other action that is inconsistent withto interfere with the acceptance, implementation, or consummation of the Transactions (including, if applicable, the timely filing of objections or written responses) to the extent such opposition or objection is intended reasonably necessary or desirable to facilitate implementation of the Transactions; (i) provide, and direct their employees, officers, advisors and other representatives to provide, to the Consenting Creditors and their advisors (including the Co-Op Group Counsel) (i) reasonable access to the Company Parties’ books and records during normal business hours on reasonable advance notice to the Company Parties’ representatives and without disruption to the operation of the Company Parties’ business, (ii) reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons and without disruption to the operation of the Company Parties’ business, and (iii) such other information as reasonably requested by the Consenting Creditors and their advisors (including the Co-Op Group Counsel); in all cases, subject to the appropriate agreement on use and confidentiality; (j) inform the Co-Op Group Counsel as soon as reasonably practicable after becoming aware of (and in any event, no later than three Business Days after becoming aware of): i. any matter or circumstances, that they know, or believe is likely, to be a material impediment to the implementation or consummation of the Transactions; ii. any insolvency proceeding or material legal suit, in each case, filed by or against any Company Party; iii. the initiation, institution or commencement of any proceeding by a Governmental Regulatory Authority or other Person regarding any Governmental Approval with respect to any Company Party or challenging the validity of the Transactions contemplated by this Agreement; iv. any occurrence, or failure to occur, of any event that would be reasonably likely to cause (A) any representation or warranty of any of the Company Parties contained in this Agreement or the Definitive Documents to be untrue or inaccurate in any material respect when made or deemed to have been made, (B) any covenant of any of the Company Parties contained in this Agreement or the Definitive Documents not to be or able to be satisfied in any material respect, or (C) any condition precedent contained in this Agreement or the Definitive Documents not to occur or become impossible to satisfy; v. a breach of this Agreement of which it becomes aware (including a breach by any Company Party); and vi. any matter or circumstance that they know gives, or believe is likely to interfere with consummation ofgive, rise to a termination of this Agreement under Section 9. (k) Unless and until this Agreement has been terminated, each of the Restructuring Company Parties shall (and the transactions embodied in the Restructuring Term Sheet, including, without limitation, from and after the date hereof, shall cause their subsidiaries to) not directly or indirectly: i. file with any court any motion, seek, pursue, propose or supportpleading, or encourage other document (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the pursuitTransactions, proposal including any voluntary petition seeking bankruptcy, winding up, receivership, dissolution, liquidation, administration, moratorium, reorganization, assignment for the benefit of creditors or support, other relief in respect of any offer Company Party or its debts, or of a substantial part of their assets, under any federal, state or foreign bankruptcy, insolvency, administrative, receivership or similar Law now or hereafter in effect; ii. object to, delay, impede or take any other action to restructure interfere with approval, confirmation, acceptance, implementation or consummation of the CompanyTransactions; iii. disclose the identity of or individual holdings of any Consenting Creditor without the prior written consent of such Consenting Creditor or as required by applicable Law; iv. solicit or engage in any merger, including proposing a plan consolidation, disposition, acquisition, investment, dividend, incurrence of reorganization that is inconsistent withindebtedness, and could reasonably be expected to prevent, delay or impede, the Restructuring other similar transaction or transfer any material asset or right of the Company Parties, or any material asset or right used in accordance the business of the Company Parties to any Person (including any other Company Party or any of their affiliates) outside the ordinary course of business, without the prior written consent of the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders; (A) operate its business outside the ordinary course, taking into account the Transactions and the DBS Transactions, without the prior written consent of the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders, (B) violate the terms of any Governmental Approvals, or (C) transfer any material asset or right of the Company Parties or any material asset or right used in the business of the Company Parties to any Person (including, for the avoidance of doubt, any affiliate that is not a Company Party) outside the ordinary course of business without the prior written consent of the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders; (A) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the SEC a registration statement under the Securities Act relating to, any shares of the Equity Securities or any securities convertible into or exercisable or exchangeable for Equity Securities other than (x) pursuant to the Equity Subscription Agreements and (y) with respect to sales not to exceed the ATM Maximum Amount made after the VWAP measurement period described in the Transaction Term Sheet pursuant to an at the market equity sales program or (B) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of Equity Securities or any such other securities, where any such transaction described in clause (A) or (B) above is to be settled by delivery of Equity Securities or such other securities, in cash or otherwise, in each case other than as contemplated by this Agreement, without the prior written consent of the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders; vii. enter into any material contract or agreement outside the ordinary course of business without obtaining the prior written consent of the Required Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders; viii. require any Consenting Creditor to fund or commit to fund any additional amounts, incur, assume, become liable in respect of, or suffer to exist any expenses, liabilities, or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities or other obligations to such Consenting Creditor; ix. commence, support or join any litigation or adversary proceeding against the Consenting DNC 2025 Noteholders or the Consenting DNC 2026 Noteholders; or x. except to the extent required by this Agreement or, with the terms set forth in prior written consent of the PlanRequired Consenting DNC 2025 Noteholders and the Required Consenting DNC 2026 Noteholders, as necessary to effectuate the Transactions, take, or fail to take, any action that would cause a change to the tax status or classification of any Company Party. The provisions of this Section 5.2 shall not limit the ability of the Company Parties or their subsidiaries to enter into the DBS Transactions.

Commitments of Company. The Company shall shall: (a) support and use reasonable commercial efforts to complete the Restructuring on the terms set forth in the Restructuring Term Sheet, (b) use reasonable commercial efforts to do all things necessary and appropriate in furtherance of the Restructuring embodied in Transactions and the Restructuring Term SheetPlan, including, without limitation, if (i) commencing solicitation of votes for the Plan on or before ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) commencing the Chapter 11 Case is commenced Cases on or before April 12, 2012 (ithe “Outside Petition Date,” and the actual commencement date, the “Petition Date”), (iii) taking all steps reasonably necessary or desirable to obtain an order of the United States Bankruptcy Court in which the Chapter 11 Case is filed (the “Bankruptcy Court”), in form and substance acceptable in all material respects to the Required Consenting NoteholdersHolders, confirming a plan of reorganization consistent with the terms set forth in the Restructuring Term Sheet (the “Plan”) Plan within the timeframes contemplated by this Agreement, and Agreement (ii) taking all steps reasonably necessary and desirable to cause the effective date of the Plan to occur within the timeframes contemplated by this Agreement, including Section 4.01 hereof); (civ) obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions embodied in the Restructuring Term Sheet Plan; and (dv) except as provided in Section 29, not take any action that is inconsistent with, or is intended or is likely to interfere with, consummation of the Transactions and the Plan; (b) file a motion to approve the Plan and the applicable Solicitation Materials with consummation the Bankruptcy Court on the Petition Date, together with such other first day motions and pleadings as may be reasonably acceptable, in form and substance, to the Consenting Holders; (c) (i) diligently pursue the acquisition of, or of all or substantially all of the Restructuring assets of, Arctic Glacier Income Fund and the transactions embodied in the Restructuring Term Sheetits affiliates (collectively, including, without limitation, from and after the date hereof, not directly or indirectly, seek, pursue, propose or support, or encourage the pursuit, proposal or support, of any offer to restructure the Company, “Arctic”) including proposing a plan of reorganization that is inconsistent by complying with, and could reasonably be expected to prevent, delay or impede, the Restructuring of the Company in accordance with the terms procedures set forth in Schedule B to the PlanInitial Order, dated as of February 22, 2012, entered in the proceedings of Arctic under the Companies’ Creditors Arrangement Act (Canada) (the “CCAA Proceedings”) or any other order or obligation entered in the CCAA Proceedings or in the related Chapter 15 cases filed in the United States Bankruptcy Court for the District of Delaware; (ii) diligently pursue commitments in respect of the debt financing required to consummate the Arctic transaction on material economic terms reasonably acceptable to the Consenting Holders; and (iii) otherwise cooperate, and cause its advisors to cooperate, with the Consenting Holders and their advisors in connection with the Arctic acquisition, including without limitation by providing status reports on the Arctic acquisition to the Consenting Holders upon the reasonable request of any Consenting Holder; (d) file no later than five days before the commencement of a hearing on confirmation of the Plan a proposed form of order confirming the plan (the “Confirmation Order”) that is reasonably acceptable to the Consenting Holders; (e) provide draft copies of all documents and pleadings the Company intends to file with the Bankruptcy Court to counsel for the Consenting Holders at least one (1) business day before the date upon which the Company intends to file such document and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court.