Supporting Noteholder Termination. This Agreement and the obligations hereunder shall automatically terminate three business days (or such other notice period as specifically set forth below) following the delivery of written notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the other Parties any time after and during the continuance of any of the following events (each, a “Supporting Noteholder Termination Event”); provided that, with respect to the Supporting Noteholder Termination Event in clause (k), this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Secured Noteholders; provided further that, with respect to the Supporting Noteholder Termination Event in clause (l) within 1 day following such event, this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Unsecured Noteholders; and provided further that any such Supporting Noteholder Termination Event may be waived in accordance with Section 7.17 hereof: (a) other than as disclosed in writing to the Supporting Secured Noteholders and/or their advisors as of the date of the Original RSA, any Debtor or any non-Debtor subsidiary of the Company shall pay or cause to be paid any amount outside the ordinary course of business with respect to executive compensation or benefits, including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar plan, in each case without the consent of the Required Supporting Noteholders; (b) the Bankruptcy Court shall have entered an order dismissing any of the Chapter 11 Cases or converting any of the Chapter 11 Cases to a case or cases under chapter 7 of the Bankruptcy Code; (c) an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversed, vacated or otherwise materially modified in a manner inconsistent with this Agreement or the Plan without the prior written consent of the Required Supporting Noteholders; (d) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stay, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d); (e) any Company Party makes an assignment for the benefit of creditors; (f) the Company fails to comply with or achieve the following deadlines (each, a “Case Milestone”) (in each case, with such motions, orders, and other pleadings being consistent with this Agreement and the Restructuring Term Sheet): (i) no later than June 28, 2019, entry of the Final Cash Collateral Order; (ii) no later than July 12, 2019, the filing of a motion seeking entry of the DIP Order; (iii) no later than July 12, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”); (iv) no later than five business days after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement; (v) no later than August 9, 2019, entry of the DIP Order; (vi) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn; (vii) no later than the date that is 7 days after the filing of the Plan and the Disclosure Statement, the filing of a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 days after the filing of such motion; (viii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order; (ix) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and (x) no later than the date that is 30 days after the entry of the Confirmation Order, substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”); (g) the filing by the Company of any motion or pleading with the Bankruptcy Court that is not consistent in all material respects with this Agreement and the Restructuring Term Sheet, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect of such motion after receipt of notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company (or, in the case of a motion that has already been approved by an order of the Bankruptcy Court at the time the Company is provided with such notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, as applicable, such order is not stayed, reversed or vacated within three business days of such notice); (h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; (i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case without the consent of the Required Supporting Secured Noteholders; (j) the occurrence of an event giving rise to the Prepetition Term Lenders’ or the Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence; (k) the failure of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 9, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties; (l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 9, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties; (m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence; (n) any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action (A) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination of any of the Claims of the Prepetition Term Lenders, the Secured Noteholders, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action; (o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof; (p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement of the Chapter 11 Cases; (ii) in accordance with the Budget in such Chapter 11 Cases; or (iii) with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders); (q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (or any other Company Party or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect; (r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company; (s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company; (t) the Bankruptcy Court shall have entered an order pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner to operate and manage any of the Company’s businesses; (u) the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to material assets of the Debtors without the written consent of the Required Supporting Noteholders; (v) the Company loses the exclusive right to file and solicit acceptances of a chapter 11 plan; or (w) the failure of the Company to pay the reasonable fees and expenses of the Secured Notes Ad Hoc Group or the Unsecured Notes Ad Hoc Group in accordance with this Agreement and the Cash Collateral Orders, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 Cases.
Appears in 1 contract
Sources: Restructuring Support Agreement (Bristow Group Inc)
Supporting Noteholder Termination. This Agreement and the obligations hereunder shall automatically terminate three business days one (or such other notice period as specifically set forth below1) Business Day following the delivery of written notice from the Required Supporting Secured Noteholders (or the Required Supporting Unsecured Noteholders their counsel) to the other Parties any time after and during the continuance of any of the following events (each, a “Supporting Noteholder Termination Event”); provided that, with respect to the Supporting Noteholder Termination Event in clause (k), this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Secured Noteholders; provided further that, with respect to the Supporting Noteholder Termination Event in clause (l) within 1 day following such event, this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Unsecured Noteholders; and provided further that any such Supporting Noteholder Termination Event may be waived Emergent in accordance with Section 7.17 hereof:
27, at any time after any of the following: (ai) other than as disclosed a material breach (without giving effect to any materiality qualifiers therein) by Emergent of any of its covenants, undertakings, obligations, representations or warranties contained in writing this Agreement or the Definitive Documents, and, to the Supporting Secured Noteholders and/or their advisors as extent - 10 - such breach is curable, such breach remains uncured for a period of five (5) Business Days; (ii) the Petition Date shall not have occurred on or before October 16, 2020; (iii) Emergent shall have failed to file the Plan and the Disclosure Statement within one (1) Business Day following the Petition Date; (iv) the Disclosure Statement shall not have been approved by the Bankruptcy Court on or before November 16, 2020 (v) the Confirmation Order shall not been entered by the Bankruptcy Court on or before December 18, 2020; (vi) if, on or prior to the commencement of the date of Confirmation Hearing, the Original RSA, any Debtor or any non-Debtor subsidiary of Definitive Documents are not consistent in all material respects with the Company shall pay or cause Term Sheet and not otherwise acceptable to be paid any amount outside the ordinary course of business with respect to executive compensation or benefits, including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar plan, in each case Required Supporting Noteholders; (vii) Emergent withdraws the Plan without the consent of the Required Supporting Noteholders;
; (bviii) the Bankruptcy Court shall have entered an order dismissing any of the Chapter 11 Cases or converting any of the Chapter 11 Cases to a case or cases under chapter 7 of the Bankruptcy Code;
(c) an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversedEmergent files, vacated propounds or otherwise materially modified in a manner inconsistent with this Agreement supports any plan of reorganization or the Plan without the prior written consent of the Required Supporting Noteholders;
(d) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stay, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d);
(e) any Company Party makes an assignment for the benefit of creditors;
(f) the Company fails to comply with or achieve the following deadlines (each, a “Case Milestone”) (in each case, with such motions, orders, and restructuring transaction other pleadings being consistent with this Agreement and the Restructuring Term Sheet):
(i) no later than June 28, 2019, entry of the Final Cash Collateral Order;
(ii) no later than July 12, 2019, the filing of a motion seeking entry of the DIP Order;
(iii) no later than July 12, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”);
(iv) no later than five business days after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement;
(v) no later than August 9, 2019, entry of the DIP Order;
(vi) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn;
(vii) no later than the date that is 7 days after the filing of the Plan and the Disclosure Statement, the filing of a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 days after the filing of such motion;
(viii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order;
Restructuring; (ix) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and
(x) no later than the date that is 30 days after the entry of the Confirmation Order, substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”);
(g) the filing by the Company of Emergent files any motion or pleading with the Bankruptcy Court that is not consistent in application seeking authority to sell all material respects with this Agreement and the Restructuring Term Sheet, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect a portion of such motion after receipt of notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company (or, in the case of a motion that has already been approved by an order of the Bankruptcy Court at the time the Company is provided with such notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, as applicable, such order is not stayed, reversed or vacated within three business days of such notice);
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders;
(i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case its assets without the consent of the Required Supporting Secured Noteholders;
; (jx) the occurrence amendment, modification of, or the filing of an event giving rise a pleading seeking to amend or modify, the Plan, the Disclosure Statement or any other Definitive Documents, by Emergent, which amendment, modification or filing is materially inconsistent with this Agreement, the Term Sheet, or the Definitive Documents and is not acceptable to the Prepetition Term Lenders’ or the Required Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(kxi) the failure filing by Emergent of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 9, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed motion or other request for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties;
(l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 9, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties;
(m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(n) any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action relief seeking (A) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination voluntary dismissal of any of the Claims of the Prepetition Term LendersChapter 11 Case, the Secured Noteholders, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action;
(o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof;
(p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement conversion of the Chapter 11 Cases; (ii) in accordance with Case to chapter 7 of the Budget in such Chapter 11 Cases; Bankruptcy Code, or (iiiC) appointment of a trustee or an examiner with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders);
(q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (or any other Company Party or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect;
(r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(t) the Bankruptcy Court shall have entered an order expanded powers pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner to operate and manage in any of the Company’s businesses;
Chapter 11 Case; (uxii) the entry of an order by the Bankruptcy Court grants relief terminatingor any other court with appropriate jurisdiction (A) dismissing the Chapter 11 Case, annulling, or modifying (B) converting the automatic stay (as set forth in section 362 Chapter 11 Case to a case under chapter 7 of the Bankruptcy Code, (C) appointing a trustee or an examiner with regard expanded powers pursuant to material assets section 1104 of the Debtors without the written consent of the Required Supporting Noteholders;
(v) the Company loses the exclusive right Bankruptcy Code with respect to file and solicit acceptances of a chapter 11 plan; or
(w) the failure of the Company to pay the reasonable fees and expenses of the Secured Notes Ad Hoc Group or the Unsecured Notes Ad Hoc Group in accordance with this Agreement and the Cash Collateral Orders, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 Cases.Case, (D) making a finding of fraud, dishonesty, or material misconduct by any officer or director of Emergent or (E) that would have the effect of prohibiting consummation of the Restructuring; - 11 -
Appears in 1 contract
Sources: Restructuring Support Agreement (Emergent Capital, Inc.)
Supporting Noteholder Termination. This Agreement and the obligations hereunder shall automatically terminate three business days (or such other notice period as specifically set forth below) following the delivery of written notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the other Parties any time after and during the continuance of any of the following events (each, a “Supporting Noteholder Termination Event”); provided that, with respect to the Supporting Noteholder Termination Event in clause (k), this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Secured Noteholders; provided further that, with respect to the Supporting Noteholder Termination Event in clause (l) within 1 day following such event, this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Unsecured Noteholders; and provided further that any such Supporting Noteholder Termination Event may be waived in accordance with Section 7.17 hereof:
(a) other than as disclosed in writing to the Supporting Secured Noteholders and/or their advisors as of the date of the Original RSA, any Debtor or any non-Debtor subsidiary of the Company shall pay or cause to be paid any amount outside the ordinary course of business with respect to executive compensation or benefits, including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar plan, in each case without the consent of the Required Supporting Noteholders;
(b) the Bankruptcy Court shall have entered an order dismissing any of the Chapter 11 Cases or converting any of the Chapter 11 Cases to a case or cases under chapter 7 of the Bankruptcy Code;
(c) an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversed, vacated or otherwise materially modified in a manner inconsistent with this Agreement or the Plan without the prior written consent of the Required Supporting Noteholders;
(d) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stay, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d);
(e) any Company Party makes an assignment for the benefit of creditors;
(f) the Company fails to comply with or achieve the following deadlines (each, a “Case Milestone”) (in each case, with such motions, orders, and other pleadings being consistent with this Agreement and the Restructuring Term Sheet):
(i) no later than June 28, 2019, entry of the Final Cash Collateral Order;
(ii) no later than July 1225, 2019, the filing of a motion seeking entry of the DIP Order;
(iiiii) no later than July 1224, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”);
(iviii) no later than five business days following the first business day after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement;
(viv) no later than August 921, 2019, entry of the DIP Order;
(viv) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn;
(viivi) no later than the date that is 7 five business days after the filing of the Plan and the Disclosure Statement, the filing of a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 five business days after the filing of such motion;
(viiivii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order;
(ixviii) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and
(xi) no later than 11:59 p.m., New York City time on December 18, 2019 (the date that is 30 days after the entry of the Confirmation Order“Outside Date”), substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”);; provided, that in the event that all of the conditions to Closing set out in Article VII of the Backstop Commitment Agreement have been satisfied on the Outside Date (other than those conditions that by their terms are to be satisfied at the Closing (as defined in the Backstop Commitment Agreement), to the extent such conditions are at such time reasonably expected to be satisfied at the Closing, if the Closing were to occur on the Outside Date) except the conditions set forth in Sections 7.1(j) and 7.3(f) of the Backstop Commitment Agreement, the Outside Date shall automatically be extended to 11:59 p.m., New York City time on February 17, 2020 (provided, that in the event that the Outside Date is extended pursuant to this proviso, from and after the date of such extension until the Outside Date, as so extended, the only condition to the obligations of the Commitment Parties pursuant to the Backstop Commitment Agreement, notwithstanding anything in Article VII of the Backstop Commitment Agreement to the contrary, shall be the condition set forth in Section 7.1(j)).
(g) the filing by the Company of any motion or pleading with the Bankruptcy Court that is not consistent in all material respects with this Agreement and the Restructuring Term Sheet, including any settlement that materially amends the terms of the Restructuring without the consent of the Required Supporting Unsecured Noteholders, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect of such motion after receipt of notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company (or, in the case of a motion that has already been approved by an order of the Bankruptcy Court at the time the Company is provided with such notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, as applicable, such order is not stayed, reversed or vacated within three business days of such notice);
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders;
(i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case without the consent of the Required Supporting Secured Noteholders;
(j) the occurrence of an event giving rise to the Prepetition Term Lenders’ or the Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Final Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(k) the failure of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 924, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed for such deficiency by July 1227, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties;
(l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 924, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 1227, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties;
(m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(n) any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action (A) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination of any of the Claims of the Prepetition Term Lenders, the Secured Noteholders, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action;
(o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof;
(p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement of the Chapter 11 Cases; (ii) in accordance with the Budget in such Chapter 11 Cases; or (iii) with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders);
(q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (or any other Company Party or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect;
(r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(t) the Bankruptcy Court shall have entered an order pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner to operate and manage any of the Company’s businesses;
(u) the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to material assets of the Debtors without the written consent of the Required Supporting Noteholders;
(v) the Company loses the exclusive right to file and solicit acceptances of a chapter 11 plan; or
(w) the failure of the Company to pay the reasonable fees and expenses of the Secured Notes Ad Hoc Group or the Unsecured Notes Ad Hoc Group in accordance with this Agreement and the Final Cash Collateral OrdersOrder, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 Cases.
Appears in 1 contract
Sources: Restructuring Support Agreement (Bristow Group Inc)
Supporting Noteholder Termination. This Agreement and may be terminated at the obligations hereunder shall automatically terminate three business days (or such other notice period as specifically set forth below) following the delivery option of written notice from the Required Supporting Secured Noteholders or upon the Required Supporting Unsecured Noteholders to the other Parties any time after and during the continuance occurrence of any of the following events (each, each a “Supporting Noteholder Termination Event”); provided that):
(a) The Effective Date shall not have occurred on or prior to the Outside Date;
(b) If an S-4 Registration Statement related to the Exchange Offer is not filed with the SEC by November 1, 2010;
(c) If the Minimum Exchange Threshold is met by the expiration time of the Exchange Offer, the failure to consummate the Exchange Offer within ten (10) Business Days after the Exchange Offer;
(d) If the Minimum Exchange Threshold is not met by the expiration time of the Exchange Offer and the Voting Threshold with respect to the Notes is met by December 23, 2010, the failure to file the Prepackaged Plan by the earlier of (i) within five (5) Business Days after the expiration time of the Exchange Offer or (ii) January 15, 2011;
(e) If the Confirmation Order shall not have been entered by the earlier of (i) 60 days after the Petition Date (or if such date is not a Business Day, the first Business Day thereafter) or (ii) January 31, 2011;
(f) If the Prepackaged Plan shall not have been consummated by the earlier of (i) 60 days after the Petition Date or (ii) February 28, 2011.
(g) Upon provision of written notice by the Required Supporting Noteholders to the Company of the occurrence of a Material Adverse Change; provided, however, that the Company shall have five (5) Business Days from the date of such notice to cure such Material Adverse Change if the circumstance, change, occurrence, state of facts or development giving rise to the Material Adverse Change is susceptible to cure; provided, further, however, nothing provided in this sub-section (f) shall serve to extend the Effective Date past the Outside Date;
(h) Upon provision of written notice by the Required Supporting Noteholders to the Company, if the Required Supporting Noteholders shall become aware of any information concerning the Company (i) that is materially inconsistent with the information previously provided or made available to the Supporting Noteholder Termination Event Group or its representatives and advisors by or on behalf of the Company by persons with the authority to provide such information on behalf of the Company and such information has a material impact on the Company and (ii) was false or misleading at the time it was provided to the Supporting Noteholder Group or its representatives and advisors; provided, however, that this subsection shall not apply to any information or analysis that is materially inconsistent with previous information or analysis if the Company relied on information provided to it by the Required Supporting Noteholders in clause (k), this Agreement creating such information and analysis and the obligations hereunder may Required Supporting Noteholders are the source or cause of the inconsistency;
(i) Any court of competent jurisdiction or other competent governmental or regulatory authority shall have issued a final and non-appealable order making illegal or otherwise restricting, preventing, or prohibiting the Restructuring in a way that cannot be terminated solely reasonably remedied by the Company or the Supporting Noteholder Group.
(j) In the event the Restructuring is implemented pursuant to the Exchange Offer, the filing by the Company of any form or statement or amendment that is inconsistent in any material respect with the Term Sheet or alters the Restructuring in any material respect if such form or statement or amendment has not been withdrawn prior to five (5) Business Days after the Company receives written notice from the Required Supporting Secured Noteholders; provided further thatNoteholders that it views such form, statement or amendment to be inconsistent with respect the Term Sheet and this Agreement.
(k) In the event the Restructuring is implemented pursuant to the Supporting Noteholder Termination Event Prepackaged Plan, if (i) the Bankruptcy Court terminates the Company’s exclusive period to file the Prepackaged Plan or such exclusive period lapses, (ii) after the filing of the Prepackaged Plan if any amendment or modification to the Prepackaged Plan is made such that is inconsistent in clause (l) within 1 day following such event, any material respect with the Term Sheet or this Agreement and or alters the obligations hereunder may be terminated solely by Restructuring in any material respect if such amendment or modification is not withdrawn prior to five (5) Business Days after the Company receives written notice from the Required Supporting Unsecured Noteholders; Noteholders that it views such amendment or modification to be inconsistent with the Term Sheet and provided further that any such Supporting Noteholder Termination Event may be waived in accordance with Section 7.17 hereof:
the Agreement, (aiii) other than as disclosed in writing to the Supporting Secured Noteholders and/or their advisors as of the date of the Original RSA, any Debtor or any non-Debtor subsidiary of the Company shall pay or cause to be paid any amount outside withdraws the ordinary course of business with respect to executive compensation or benefits, including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar plan, in each case Prepackaged Plan without the consent of the Required Supporting Noteholders;
, (biv) a trustee or an examiner with expanded powers is appointed by the Bankruptcy Court shall have entered an order dismissing any of Court, (v) the Chapter 11 Cases Case is converted to a case under Chapter 7 or converting any of (vi) the Chapter 11 Cases to a case or cases under chapter 7 Case is dismissed by order of the Bankruptcy Code;
(c) an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversed, vacated or otherwise materially modified in a manner inconsistent with Court. The date on which this Agreement is terminated in accordance with the foregoing provisions or upon a Company Termination Event (as defined below) shall be referred to as the Plan without “Termination Date”. Notwithstanding the prior written consent of foregoing, the Required Supporting Noteholders;
(d) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion on behalf of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stayGroup, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d);
(e) any Company Party makes an assignment for the benefit of creditors;
(f) the Company fails to comply with or achieve the following deadlines (each, a “Case Milestone”) (in each case, with such motions, orders, and other pleadings being consistent with this Agreement and the Restructuring Term Sheet):
(i) no later than June 28, 2019, entry of the Final Cash Collateral Order;
(ii) no later than July 12, 2019, the filing of a motion seeking entry of the DIP Order;
(iii) no later than July 12, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”);
(iv) no later than five business days after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement;
(v) no later than August 9, 2019, entry of the DIP Order;
(vi) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn;
(vii) no later than the date that is 7 days after the filing of the Plan and the Disclosure Statement, the filing of a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 days after the filing of such motion;
(viii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order;
(ix) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and
(x) no later than the date that is 30 days after the entry of the Confirmation Order, substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”);
(g) the filing by the Company of any motion or pleading with the Bankruptcy Court that is not consistent in all material respects with this Agreement and the Restructuring Term Sheet, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect of such motion after receipt of notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company (ormay, in the case of a motion that has already been approved by an order of the Bankruptcy Court at the time the Company is provided with such notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholderstheir sole discretion, as applicable, such order is not stayed, reversed or vacated within three business days of such notice);
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders;
(i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case without the consent of the Required Supporting Secured Noteholders;
(j) the occurrence of an event giving rise to the Prepetition Term Lenders’ or the Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(k) the failure of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 9, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties;
(l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 9, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties;
(m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(n) waive any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action (A) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination of any of the Claims of the Prepetition Term Lenders, the Secured Noteholders, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to foregoing in a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action;
(o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof;
(p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement of the Chapter 11 Cases; (ii) in accordance with the Budget in such Chapter 11 Cases; or (iii) with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders);
(q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (or any other Company Party or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect;
(r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders writing delivered to the Company;
(s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(t) the Bankruptcy Court shall have entered an order pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner to operate and manage any of the Company’s businesses;
(u) the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to material assets of the Debtors without the written consent of the Required Supporting Noteholders;
(v) the Company loses the exclusive right to file and solicit acceptances of a chapter 11 plan; or
(w) the failure of the Company to pay the reasonable fees and expenses of the Secured Notes Ad Hoc Group or the Unsecured Notes Ad Hoc Group in accordance with this Agreement and the Cash Collateral Orders, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 Cases.
Appears in 1 contract
Sources: Restructuring Support Agreement (C&d Technologies Inc)
Supporting Noteholder Termination. This Agreement and the obligations hereunder shall automatically terminate three business days one (or such other notice period as specifically set forth below1) Business Day following the delivery of written notice from the Required Supporting Secured Noteholders (or the Required Supporting Unsecured Noteholders their counsel) to the other Parties any time after and during the continuance of any of the following events (each, a “Supporting Noteholder Termination Event”); provided that, with respect to the Supporting Noteholder Termination Event in clause (k), this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Secured Noteholders; provided further that, with respect to the Supporting Noteholder Termination Event in clause (l) within 1 day following such event, this Agreement and the obligations hereunder may be terminated solely by written notice from the Required Supporting Unsecured Noteholders; and provided further that any such Supporting Noteholder Termination Event may be waived Emergent in accordance with Section 7.17 hereof:
27, at any time after any of the following: (ai) other than as disclosed a material breach (without giving effect to any materiality qualifiers therein) by Emergent of any of its covenants, undertakings, obligations, representations or warranties contained in writing this Agreement or the Definitive Documents, and, to the Supporting Secured Noteholders and/or their advisors as extent such breach is curable, such breach remains uncured for a period of five (5) Business Days; (ii) the Petition Date shall not have occurred on or before October 16, 2020; (iii) Emergent shall have failed to file the Plan and the Disclosure Statement within one (1) Business Day following the Petition Date; (iv) the Disclosure Statement shall not have been approved by the Bankruptcy Court on or before November 16, 2020 (v) the Confirmation Order shall not been entered by the Bankruptcy Court on or before December 18, 2020; (vi) if, on or prior to the commencement of the date of Confirmation Hearing, the Original RSA, any Debtor or any non-Debtor subsidiary of Definitive Documents are not consistent in all material respects with the Company shall pay or cause Term Sheet and not otherwise acceptable to be paid any amount outside the ordinary course of business with respect to executive compensation or benefits, including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar plan, in each case Required Supporting Noteholders; (vii) Emergent withdraws the Plan without the consent of the Required Supporting Noteholders;
; (bviii) the Bankruptcy Court shall have entered an order dismissing any of the Chapter 11 Cases or converting any of the Chapter 11 Cases to a case or cases under chapter 7 of the Bankruptcy Code;
(c) an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversedEmergent files, vacated propounds or otherwise materially modified in a manner inconsistent with this Agreement supports any plan of reorganization or the Plan without the prior written consent of the Required Supporting Noteholders;
(d) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stay, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d);
(e) any Company Party makes an assignment for the benefit of creditors;
(f) the Company fails to comply with or achieve the following deadlines (each, a “Case Milestone”) (in each case, with such motions, orders, and restructuring transaction other pleadings being consistent with this Agreement and the Restructuring Term Sheet):
(i) no later than June 28, 2019, entry of the Final Cash Collateral Order;
(ii) no later than July 12, 2019, the filing of a motion seeking entry of the DIP Order;
(iii) no later than July 12, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”);
(iv) no later than five business days after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement;
(v) no later than August 9, 2019, entry of the DIP Order;
(vi) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn;
(vii) no later than the date that is 7 days after the filing of the Plan and the Disclosure Statement, the filing of a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 days after the filing of such motion;
(viii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order;
Restructuring; (ix) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and
(x) no later than the date that is 30 days after the entry of the Confirmation Order, substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”);
(g) the filing by the Company of Emergent files any motion or pleading with the Bankruptcy Court that is not consistent in application seeking authority to sell all material respects with this Agreement and the Restructuring Term Sheet, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect a portion of such motion after receipt of notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company (or, in the case of a motion that has already been approved by an order of the Bankruptcy Court at the time the Company is provided with such notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, as applicable, such order is not stayed, reversed or vacated within three business days of such notice);
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders;
(i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case its assets without the consent of the Required Supporting Secured Noteholders;
; (jx) the occurrence of an event giving rise to the Prepetition Term Lenders’ or the Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; providedamendment, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(k) the failure of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 9, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties;
(l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 9, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties;
(m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(n) any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action (A) challenging the validity, enforceability, perfection or priority modification of, or the filing of a pleading seeking avoidance to amend or subordination of any of the Claims of the Prepetition Term Lendersmodify, the Secured NoteholdersPlan, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action;
(o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof;
(p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement of the Chapter 11 Cases; (ii) in accordance with the Budget in such Chapter 11 Cases; or (iii) with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders);
(q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (Disclosure Statement or any other Company Party Definitive Documents, by Emergent, which amendment, modification or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect;
(r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects filing is materially inconsistent with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders Term Sheet, or the Required Supporting Unsecured Noteholders Definitive Documents and is not acceptable to the Company;
(t) the Bankruptcy Court shall have entered an order pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner to operate and manage any of the Company’s businesses;
(u) the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to material assets of the Debtors without the written consent of the Required Supporting Noteholders;
(v) the Company loses the exclusive right to file and solicit acceptances of a chapter ; - 11 plan; or
(w) the failure of the Company to pay the reasonable fees and expenses of the Secured Notes Ad Hoc Group or the Unsecured Notes Ad Hoc Group in accordance with this Agreement and the Cash Collateral Orders, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 Cases.-
Appears in 1 contract
Sources: Restructuring Support Agreement (Emergent Capital, Inc.)
Supporting Noteholder Termination. This Agreement and the obligations hereunder shall automatically terminate, or otherwise terminate three business days (or such other notice period as specifically set forth provided below) following , upon the delivery of written notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders Convertible Noteholders, as applicable, to the other Parties Company (in accordance with Section 21), at any time after and during the continuance occurrence of any of the following events following:
(eachi) the Petition Date shall not have occurred on or before October 31, a “Supporting Noteholder Termination Event”); provided that2018;
(ii) the Company shall have failed to file the Plan and the Disclosure Statement on the Petition Date;
(iii) the Bankruptcy Court shall not have entered the Interim Cash Collateral Order on or before the date that is five (5) days after the Petition Date;
(iv) the Bankruptcy Court shall not have entered the Disclosure Statement Order, the Final Cash Collateral Order on or before the date that is forty (40) days after the Petition Date;
(v) the Bankruptcy Court shall not have entered the Confirmation Order on or before the date that is eighty (80) days after the Petition Date;
(vi) the Effective Date shall not have occurred by the Outside Date;
(vii) the termination of the Purchase Agreement in connection with respect to the Supporting Noteholder Termination Event in clause Iroko Acquisition;
(k), viii) (A) any Definitive Document is not consistent with this Agreement or is otherwise not in form and the obligations hereunder may be terminated solely by written notice from substance reasonably acceptable to the Required Supporting Secured Noteholders; provided further that, with respect to the Supporting Noteholder Termination Event in clause (l) within 1 day following such event, this Agreement and the obligations hereunder may be terminated solely by written notice from Noteholders or the Required Supporting Unsecured Convertible Noteholders; and provided further that , or (B) any such Supporting Noteholder Termination Event may be waived in accordance with Section 7.17 hereof:
(a) other than as disclosed in writing to the Supporting Secured Noteholders and/or their advisors as of the date terms or conditions of the Original RSAany Definitive Document is waived, amended or modified, or any Company Party files a pleading seeking authority to waive, amend or modify, any Debtor or any non-Debtor subsidiary of Definitive Document, without the Company shall pay or cause to be paid any amount outside the ordinary course of business with respect to executive compensation or benefits, Required Supporting Noteholders’ prior written consent (including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar planvia email), in each case which remains uncured for five (5) Business Days after the receipt by the Company of written notice delivered in accordance herewith;
(ix) the Company shall have withdrawn the Plan without the consent of the Required Supporting Secured Noteholders or the Required Supporting Convertible Noteholders;
(bx) any Company Party files, propounds or otherwise seeks, solicits, proposes or supports, directly or indirectly, any Alternative Proposal or publicly announces its intention to pursue an Alternative Proposal;
(xi) any Company Party files any motion or application seeking authority to sell all or a material portion of its assets;
(xii) the termination of the consensual use of cash collateral as provided in the Cash Collateral Orders;
(xiii) the filing by any Company Party of any motion or other request for relief seeking (A) dismissal of any of the Chapter 11 Cases, (B) conversion of any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, or (C) appointment of a trustee or an examiner with expanded powers pursuant to section 1104 of the Bankruptcy Code in any of the Chapter 11 Cases;
(xiv) the entry of an order by the Bankruptcy Court shall have entered an order or any other court with appropriate jurisdiction (A) dismissing any of the Chapter 11 Cases or Cases, (B) converting any of the Chapter 11 Cases to a case or cases under chapter 7 of the Bankruptcy Code, (C) appointing a trustee or an examiner with expanded powers pursuant to section 1104 of the Bankruptcy Code with respect to any of the Chapter 11 Cases, (D) making a finding of fraud, dishonesty, or material misconduct by any officer or director of the Company or (E) that would have the effect of restricting, preventing or prohibiting consummation of the Restructuring or adversely impacting the legal or economic rights of any Supporting Noteholder;
(cxv) the entry of an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversedany other court with appropriate jurisdiction avoiding, vacated invalidating disallowing, subordinating or otherwise materially modified in a manner inconsistent with this Agreement or the Plan without the prior written consent of the Required recharacterizing any Egalet Claims held by any Supporting NoteholdersNoteholder;
(dxvi) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or breach in any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company respect by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stay, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d);
(e) any Company Party makes an assignment for the benefit of creditors;
(f) the Company fails to comply with any of its covenants, obligations, representations, or achieve the following deadlines (each, a “Case Milestone”) (warranties contained in each case, with such motions, ordersthis Agreement, and other pleadings being consistent with this Agreement and the Restructuring Term Sheet):
any such breach (ia) no later than June 28, 2019, entry remains uncured for a period of the Final Cash Collateral Order;
five (ii5) no later than July 12, 2019, the filing of a motion seeking entry of the DIP Order;
(iii) no later than July 12, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”);
(iv) no later than five business days after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement;
(v) no later than August 9, 2019, entry of the DIP Order;
(vi) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn;
(vii) no later than Business Days from the date that is 7 days after the filing of the Plan and the Disclosure Statement, the filing of breaching Company Party receives a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 days after the filing written notice of such motion;
(viii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order;
(ix) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and
(x) no later than the date that is 30 days after the entry of the Confirmation Order, substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”);
(g) the filing by the Company of any motion or pleading with the Bankruptcy Court that is not consistent in all material respects with this Agreement and the Restructuring Term Sheet, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect of such motion after receipt of notice breach from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders Convertible Noteholders, and (b) could reasonably be expected to materially impair the ability to consummate the Restructuring in accordance with the terms of this Agreement;
(xvii) any court of competent jurisdiction or other competent Governmental Unit or regulatory authority shall have issued any ruling, judgment, or order making illegal or otherwise restricting, preventing, enjoining or prohibiting the consummation of the Restructuring or adversely impacting the legal or economic rights of any Supporting Noteholder in a manner that cannot be reasonably remedied in a timely manner by the Company or the Supporting Noteholder;
(or, in xviii) the case exclusive right of any Company Party to file and solicit a motion that has already been approved by an order chapter 11 plan pursuant to section 1121 of the Bankruptcy Court at Code shall have terminated;
(xix) the time filing of any motion or pleading by any Company Party in the Company Chapter 11 Cases that is provided not consistent with such notice by the terms and conditions of this Agreement or the Definitive Documents in a manner that is reasonably not acceptable to the Required Supporting Secured Noteholders or the Required Supporting Unsecured Convertible Noteholders, as applicable, such order is not stayed, reversed or vacated within three business days of such notice);; or
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders;
(i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case without the consent of the Required Supporting Secured Noteholders;
(j) the occurrence of an event giving rise to the Prepetition Term Lenders’ or the Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(k) the failure of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 9, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties;
(l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 9, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties;
(m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(n) any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action (A) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination of any of the Claims of the Prepetition Term Lenders, the Secured Noteholders, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action;
(o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof;
(p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement of the Chapter 11 Cases; (ii) in accordance with the Budget in such Chapter 11 Cases; or (iii) with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders);
(q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (or any other Company Party or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect;
(r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(t) the Bankruptcy Court shall have entered an order pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner to operate and manage any of the Company’s businesses;
(uxx) the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any material assets of the Debtors without Company that would have an adverse impact on the written consent of the Required Supporting Noteholders;
(v) the Company loses the exclusive right to file and solicit acceptances of a chapter 11 plan; or
(w) the failure of the Company to pay the reasonable fees and expenses of the Secured Notes Ad Hoc Group or the Unsecured Notes Ad Hoc Group in accordance with this Agreement and the Cash Collateral Orders, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 CasesRestructuring.
Appears in 1 contract
Supporting Noteholder Termination. This Agreement and the obligations hereunder shall automatically terminate three business days one (or such other notice period as specifically set forth below1) Business Day following the delivery of written notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the other Parties (in accordance with Section 31), at any time after and during the continuance of any of the following events following:
(each, a “Supporting Noteholder Termination Event”); provided that, with respect to the Supporting Noteholder Termination Event in clause (ki) Notwithstanding Section 6(a)(iv), this the occurrence of any default or event of default under the Indenture (other than under sections 4.23(d), 6.01(1), 6.01(8) or 6.01(9) of the Indenture, and any default or event of default resulting from the delay in the delivery of the officer’s certificate required under section 4.06(b) of the Indenture for any default or event of default under sections 4.23(d), 6.01(1), 6.01(8) or 6.01(9) of the Indenture) or the Loan Agreement (other than any default or event of default under sections 10.6 and 10.8 of the Loan Agreement);
(ii) the FES Parties shall have failed to commence the Solicitation on or before December 22, 2016;
(iii) the Petition Date shall not have occurred on or before January 23, 2017;
(iv) the FES Parties shall have failed to file the Plan and the obligations hereunder may be terminated solely Disclosure Statement on the Petition Date or within one (1) Business Day thereafter;
(v) the Bankruptcy Court declines to approve the Restructuring Support Agreement and/or the Backstop Agreement at or before the time of entry of the Confirmation Order;
(vi) the Disclosure Statement shall not have been approved by written notice from the Bankruptcy Court and the Confirmation Order shall not been entered by the Bankruptcy Court on or before March 9, 2017;
(vii) the Definitive Documents are not in form and substance reasonably acceptable to the Required Supporting Secured Noteholders; provided further that, with respect Noteholders on or prior to the Supporting Noteholder Termination Event in clause (l) within 1 day following such event, this Agreement and commencement of the obligations hereunder may be terminated solely by written notice from the Required Supporting Unsecured Noteholders; and provided further that any such Supporting Noteholder Termination Event may be waived in accordance with Section 7.17 hereof:Confirmation Hearing;
(aviii) other than as disclosed in writing to the Supporting Secured Noteholders and/or their advisors as of FES Parties shall have withdrawn the date of the Original RSA, any Debtor or any non-Debtor subsidiary of the Company shall pay or cause to be paid any amount outside the ordinary course of business with respect to executive compensation or benefits, including without limitation any amount contemplated by or in connection with any incentive, retention, bonus or similar plan, in each case Plan without the consent of the Required Supporting Noteholders;
(bix) the FES Parties file, propound or otherwise support any plan of reorganization or restructuring transaction other than the Plan;
(x) any FES Party files any motion or application seeking authority to sell all or a material portion of its assets;
(xi) the termination of the consensual use of cash collateral as provided in the Cash Collateral Order;
(xii) termination of the Backstop Agreement;
(xiii) the amendment, modification of, or the filing of a pleading seeking to amend or modify, the Plan, the Disclosure Statement or any Definitive Documents, by the FES Parties, which amendment, modification or filing is materially inconsistent with this Agreement or the Definitive Documents in a manner that is not reasonably acceptable to the Required Supporting Noteholders, provided, that amendments or modifications to the Plan, the Disclosure Statement and the Confirmation Order must be acceptable to the Required Supporting Noteholders in their sole discretion;
(xiv) the filing by the FES Parties of any motion or other request for relief seeking (A) voluntary dismissal of any of the Chapter 11 Cases, (B) conversion of any of the Chapter 11 Cases to chapter 7 of the Bankruptcy Code, or (C) appointment of a trustee or an examiner with expanded powers pursuant to section 1104 of the Bankruptcy Code in any of the Chapter 11 Cases;
(xv) the entry of an order by the Bankruptcy Court shall have entered an order or any other court with appropriate jurisdiction (A) dismissing any of the Chapter 11 Cases or Cases, (B) converting any of the Chapter 11 Cases to a case or cases under chapter 7 of the Bankruptcy Code;
, (cC) appointing a trustee or an order denying confirmation of the Plan shall have been entered by the Bankruptcy Court or the Confirmation Order shall have been reversed, vacated or otherwise materially modified in a manner inconsistent examiner with this Agreement or the Plan without the prior written consent of the Required Supporting Noteholders;
(d) any court of competent jurisdiction or governmental authority, including any regulatory authority, shall have entered a final, non-appealable judgment or order declaring the Restructuring, this Agreement or any material portion hereof to be unenforceable or illegal or enjoining the consummation of a material portion of the Restructuring and such judgment or order is not stayed, dismissed, vacated or modified within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders; provided, however, that (i) if such entry has been made at the request of the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, then a Supporting Noteholder Termination Event as to the applicable Supporting Class shall not be deemed to have occurred with respect to such judgment or order and (ii) in the case of a stay, upon such judgment or order becoming unstayed and three business days’ notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, a Supporting Noteholder Termination Event shall be deemed to have occurred; provided, further, that a ruling by the Bankruptcy Court that the Plan is not confirmable as a result of terms included therein and contemplated by one or more provisions of the Restructuring Term Sheet shall not, by itself, constitute a termination event pursuant to this Paragraph (d);
(e) any Company Party makes an assignment for the benefit of creditors;
(f) the Company fails to comply with or achieve the following deadlines (each, a “Case Milestone”) (in each case, with such motions, orders, and other pleadings being consistent with this Agreement and the Restructuring Term Sheet):
(i) no later than June 28, 2019, entry of the Final Cash Collateral Order;
(ii) no later than July 12, 2019, the filing of a motion seeking entry of the DIP Order;
(iii) no later than July 12, 2019, the Backstop Commitment Agreement is fully executed with sufficient backstop commitments to backstop the full amount of the Equity Rights Offering (the “Backstop Commitment Date”);
(iv) no later than five business days after the Backstop Commitment Date, the filing of the Plan and the Disclosure Statement;
(v) no later than August 9, 2019, entry of the DIP Order;
(vi) no later than three business days after the entry of the DIP Order, the DIP Loan is fully drawn;
(vii) no later than the date that is 7 days after the filing of the Plan and the Disclosure Statement, the filing of a motion seeking entry of the Conditional Disclosure Statement Order by the Bankruptcy Court no later than 7 days after the filing of such motion;
(viii) in the event that the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order, entry of a Final Disclosure Statement Order no later than the date that is 40 days after the Bankruptcy Court refuses to enter the Conditional Disclosure Statement Order;
(ix) 60 days after the entry of the Conditional Disclosure Statement Order, or if no Conditional Disclosure Statement Order is entered, 35 days after the entry of a Final Disclosure Statement Order, the entry of the Confirmation Order, the Final Disclosure Statement Order (to the extent entry of a Conditional Disclosure Statement Order has been entered) and the Approval Order by the Bankruptcy Court; and
(x) no later than the date that is 30 days after the entry of the Confirmation Order, substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan shall have occurred (the “Effective Date”);
(g) the filing by the Company of any motion or pleading with the Bankruptcy Court that is not consistent in all material respects with this Agreement and the Restructuring Term Sheet, and such motion or pleading is not withdrawn prior to the proposed hearing date in respect of such motion after receipt of notice from the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company (or, in the case of a motion that has already been approved by an order of the Bankruptcy Court at the time the Company is provided with such notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders, as applicable, such order is not stayed, reversed or vacated within three business days of such notice);
(h) the Bankruptcy Court grants relief that is inconsistent in any material respect with this Agreement or the Restructuring and such inconsistent relief is not dismissed, vacated or modified to be consistent with this Agreement and the Restructuring within three business days following notice thereof to the Company by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders;
(i) the Final Cash Collateral Order is materially amended, terminated or otherwise modified, or the Company or any affiliate thereof seeks any such amendment, termination or modification, in each case without the consent of the Required Supporting Secured Noteholders;
(j) the occurrence of an event giving rise to the Prepetition Term Lenders’ or the Supporting Secured Noteholders’ right to terminate the use of cash collateral under the terms of the Cash Collateral Order then in effect that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(k) the failure of the Unsecured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by July 9, 2019; provided, however, that if the Unsecured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Unsecured Rights by such date, any unsubscribed portion of the Unsecured Rights shall be offered to the Secured Backstop Parties, and this termination event shall only be effective if the Secured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Unsecured Backstop Parties before being offered to the Secured Backstop Parties;
(l) the failure of the Secured Backstop Parties to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by July 9, 2019; provided, however, that if the Secured Backstop Parties have failed to execute the Backstop Commitment Agreement with respect to 100% of the Secured Rights by such date, any unsubscribed portion of the Secured Rights shall be offered to the Unsecured Backstop Parties, and this termination event shall only be effective if the Unsecured Backstop Parties shall not have subscribed for such deficiency by July 12, 2019; provided, further, that the right to fund any such deficiency shall be offered first to other Secured Backstop Parties before being offered to the Unsecured Backstop Parties;
(m) the occurrence of an event giving rise to the right of the Required Backstop Parties to terminate the Backstop Commitment Agreement that has not been waived or timely cured in accordance therewith; provided, however, that if such occurrence is primarily the result of a breach by any Supporting Noteholder, then such Supporting Noteholder shall not be entitled to declare or assert the existence of such Supporting Noteholder Termination Event with respect to such occurrence;
(n) any of the following shall have occurred: (i) the Company or any affiliate of the Company shall have filed any motion, application, adversary proceeding or cause of action (A) challenging the validity, enforceability, perfection or priority of, or seeking avoidance or subordination of any of the Claims of the Prepetition Term Lenders, the Secured Noteholders, the DIP Lenders or the Unsecured Noteholders, or any of the liens securing the Claims of the Prepetition Term Lenders, the Secured Noteholders or the DIP Lenders, or (B) otherwise seeking to impose liability upon or enjoin the Prepetition Term Lenders, the Secured Noteholders or the Unsecured Noteholders (other than with respect to a breach of this Agreement); or (ii) the Company or any affiliate of the Company shall have supported any motion, application, adversary proceeding or cause of action referred to in the immediately preceding clause (i) filed by a third party, or affirmatively consents (without the consent of the Required Supporting Secured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Secured Noteholders or the Prepetition Term Lenders) or the Required Supporting Unsecured Noteholders (with respect to a motion, application, adversary proceeding or cause of action affecting the Unsecured Noteholders)) to the standing of any such third party to bring such application, adversary proceeding or cause of action;
(o) the Company withdraws or revokes the Plan or files, publicly proposes or otherwise supports, any (i) Alternative Transaction or (ii) amendment or modification to the Restructuring containing any terms that are inconsistent with the implementation of, and the terms set forth in, the Restructuring Term Sheet unless such amendment or modification is otherwise consented to in accordance with Section 7.17 hereof;
(p) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the Company effects any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than: (i) the commencement of the Chapter 11 Cases; (ii) in accordance with the Budget in such Chapter 11 Cases; or (iii) with the written consent of the Required Supporting Noteholders (or, with respect to any such transaction occurring on or after the effective time of the Original RSA but prior to the RSA Effective Time, the Required Supporting Secured Noteholders);
(q) on or after the RSA Effective Time (or, with respect to a termination by the Required Supporting Secured Noteholders, on or after the effective time of the Original RSA), the search and rescue helicopter services contract by and between the United Kingdom Department for Transport and ▇▇▇▇▇▇▇ Helicopters Ltd. (or any other Company Party or non-Debtor subsidiary of the Company) or any other material contract of any Company Party ceases to be in full force and effect;
(r) the Restructuring Documents and any amendments, modifications or supplements thereto filed by the Company include terms that are not consistent in all material respects with this Agreement and the Restructuring Term Sheet and such filing has not been modified or withdrawn within three business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(s) the material breach by the Company of any of the undertakings, representations, warranties or covenants of the Company set forth in this Agreement, and such breach shall continue unremedied for a period of five business days after notice thereof has been given by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company;
(t) the Bankruptcy Court shall have entered an order expanded powers pursuant to section 1104 of the Bankruptcy Code appointing a trustee, receiver or an examiner with respect to operate and manage any of the Company’s businessesChapter 11 Cases, (D) making a finding of fraud, dishonesty, or material misconduct by any officer or director of the FES Parties or (E) that would have the effect of prohibiting consummation of the Restructuring;
(uxvi) the Bankruptcy Court grants relief terminatingentering an order avoiding, annullingdisallowing, subordinating or recharacterizing any Claim, lien, or modifying interest held by any Supporting Noteholder arising under the automatic stay Indenture;
(as set forth in section 362 xvii) a material breach by any of the Bankruptcy Code) with regard to material assets FES Parties of any of the Debtors without commitments, representations, warranties, or covenants of the FES Parties under this Agreement or the Definitive Documents, and any such breach by the FES Parties is not cured within five (5) Business Days after receipt of written consent of notice and opportunity to cure, if such breach is curable, from the Required Supporting Noteholders;
(vxviii) any court of competent jurisdiction or other competent governmental or regulatory authority shall have issued an order making illegal or otherwise restricting, preventing, or prohibiting the Restructuring in a manner that cannot be reasonably remedied by the FES Parties or the Supporting Noteholders;
(xix) the Company loses Effective Date shall not have occurred by the Outside Date;
(xx) the exclusive right of the FES Parties to file and solicit acceptances of a chapter 11 planplan pursuant to section 1121 of the Bankruptcy Code shall have terminated; or
(wxxi) the failure filing of any motion or pleading by any of the Company to pay FES Parties in the reasonable fees Chapter 11 Cases that is materially inconsistent with the terms and expenses conditions of the Secured Notes Ad Hoc Group this Agreement or the Unsecured Notes Ad Hoc Group Definitive Documents in accordance with this Agreement and the Cash Collateral Orders, as applicable, which failure shall continue unremedied for a period of seven business days after notice thereof has been given by manner that is not reasonably acceptable to the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders to the Company. The Company hereby acknowledges and agrees that the termination of this Agreement and the obligations hereunder as a result of a Supporting Noteholder Termination Event, and the delivery of any notice by the Required Supporting Secured Noteholders or the Required Supporting Unsecured Noteholders pursuant to any of the provisions of this Section 6.02 shall not violate the automatic stay imposed in connection with the Chapter 11 CasesNoteholders.
Appears in 1 contract
Sources: Restructuring Support Agreement (Forbes Energy Services Ltd.)