Exhibit 10.1

THIS RESTRUCTURING SUPPORT AND LOCK-UP AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE.  ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE.  NOTHING CONTAINED IN THIS RESTRUCTURING SUPPORT AND LOCK-UP AGREEMENT SHALL BE AN ADMISSION OF FACT OR LIABILITY OR, UNTIL THE OCCURRENCE OF THE AGREEMENT EFFECTIVE DATE ON THE TERMS DESCRIBED HEREIN, DEEMED BINDING ON ANY OF THE PARTIES HERETO.

 

FIRST AMENDED AND RESTATED RESTRUCTURING SUPPORT AND LOCK-UP AGREEMENT

 

This FIRST AMENDED AND RESTATED RESTRUCTURING SUPPORT AND LOCK-UP AGREEMENT (including all exhibits and schedules attached hereto and incorporated herein, this “ Agreement ”) is made and entered into as of June 13, 2019, by and among the following parties: ¹

 

 

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RECITALS

 

WHEREAS , the Company Parties, the Supporting RBL Lenders, the Supporting Term Lenders, and GSO (in its capacity as Supporting Term Lender, Supporting Noteholder, and Plan Sponsor) (the “ Original Parties ”), entered into a Restructuring Support Agreement (the “ Original RSA ”), dated as of June 10, 2019;

 

WHEREAS , the Original Parties desire to amend and restate the Original RSA in the manner set forth herein;

 

WHEREAS , the Supporting Creditors, the Prepetition Agents, and the Company have engaged in good faith, arm’s-length negotiations regarding a restructuring transaction (the “ Restructuring ”) pursuant to the terms and upon the conditions set forth in this Agreement;

 

WHEREAS , the Debtors shall commence voluntary reorganization cases (the “ Chapter 11 Cases ”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101- 1532 (the “ Bankruptcy Code ”), in the United States Bankruptcy Court for the Southern District of Texas (the “ Bankruptcy Court ”) to effect the Restructuring through a pre-negotiated chapter 11 plan of reorganization that is consistent with the Restructuring Term Sheet (the “ Plan ”);

 

WHEREAS , certain Supporting RBL Lenders or affiliates of Supporting RBL Lenders (in their capacities as such, the “ DIP Lenders ”) shall provide the DIP Facility;

 

WHEREAS , subject to approval of the Plan and entry of the Final DIP Order, the Parties have agreed to enter into the Exit Facility;

 

WHEREAS , certain Supporting Creditors or affiliates of Supporting Creditors (in such capacity, the “ Sponsor   Backstop Parties ”), ³ have agreed, subject to the terms and conditions of this Agreement and the Restructuring Term Sheet, to backstop a $189.8 million equity investment in the Company pursuant to the Sponsor Backstop Commitment Agreement as part of a confirmed Plan;

 

WHEREAS , certain Supporting Noteholders (including the Plan Sponsor, in its capacity as Supporting Noteholder) or affiliates of Supporting Noteholders (in such capacity, the “ Noteholder Backstop Parties ”), have agreed, subject to the terms and conditions of this Agreement and the Restructuring Term Sheet, to backstop the full amount of a $66.5 million Rights Offering by the Company pursuant to the Noteholder Backstop Commitment Agreement as part of a confirmed Plan;

 

WHEREAS , the Parties have agreed to certain terms with respect to the organization and governance of the Company Parties following the effective date of the Plan (the “ Plan Effective Date ”), as set forth in the Restructuring Term Sheet; and

 

WHEREAS , the Company Parties have agreed to take certain actions in support of the Restructuring on the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE , in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows:

 

AGREEMENT

 

Section 1. Agreement Effective Date . This Agreement shall become effective and binding upon each of the Parties at 12:00 a.m., prevailing Eastern Time, on the date (such date, the “ Agreement Effective Date ”) on which: (a)(i) the Company Parties shall have executed and delivered counterpart signature pages of this Agreement to counsel to the Supporting Creditors; (ii) the Original Parties holding greater than 50% of the outstanding principal amount of the Term Loan Claims held by the Original Parties shall have executed and delivered to counsel to the Debtors counterpart signature pages of this Agreement; (iii) the Original Parties holding greater than 50% of the outstanding principal amount of the RBL Claims held by the Original Parties shall have executed and delivered to counsel to the Debtors counterpart signature pages of this Agreement; and (iv) the holders of 54.71% of the aggregate outstanding principal amount of the 2020 Notes, the 2023 Notes, and the 2021 Notes issued under the Prepetition Notes Indentures shall have executed and delivered to counsel to the Debtors counterpart signature pages of this Agreement; (b) the Company Parties have given notice to counsel to the Supporting Creditors in accordance with Section 10.09 hereof that each of the foregoing conditions set forth in this Section 1, in each case, has been satisfied, all signature pages held by such Company Parties as contemplated above shall have been released for attachment to the relevant agreements, and this Agreement is declared effective as to all Parties; (c) the Company Parties shall have paid all fees and expenses invoiced and required to be paid pursuant to Section 9 hereof.  If the Agreement Effective Date shall not have occurred on or before June 14, 2019, all signature pages referred to in this Section 1 shall be returned to the Party providing the same and this Agreement, and all documents to which such signature pages apply (excluding, for the avoidance of doubt, the Original RSA and the Definitive Documentation (as defined in the Original RSA)), shall have no force or effect. ⁴   Upon the Agreement Effective Date, this Agreement shall amend and restate the Original RSA in its entirety.

 

Section 2. Exhibits Incorporated by Reference . Each of the exhibits attached hereto is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include such exhibits.  In the event of any inconsistency between this Agreement (without reference to the exhibits) and the exhibits, this Agreement (without reference to the exhibits) shall govern.

Section 3. Definitive Documentation . The definitive documents and agreements governing the Restructuring (collectively, the “ Definitive Documentation ”) shall consist of: (a) the Plan (and all exhibits thereto); (b) the Confirmation Order and pleadings in support of entry of the Confirmation Order; (c) the Disclosure Statement and the other solicitation materials in respect of the Plan (such materials, collectively, the “ Solicitation Materials ”); (d) the order of the Bankruptcy Court approving the Disclosure Statement and the Solicitation Materials; (e) the documentation in respect of the DIP Facility (including the DIP Credit Agreement, the Interim DIP Order, the Final DIP Order, the motion to approve the DIP Credit Agreement, and all other motions, briefs, affidavits, declarations, orders, and other documents related to the DIP Credit Agreement) (the “ DIP Documentation ”); (f) customary “first day” and “second day” motions and proposed orders (the “ First Day and Second Day Pleadings ”); (g) the Exit Facility and all related documents (the “ Exit Facility Documentation ”); (h) the New Exit Note, if any; (i) (A) so long as the Noteholder Termination (as defined below) shall not have occurred, the Sponsor Backstop Commitment Agreement (as defined in Exhibit A-1 hereto) or (B) if the Noteholder Termination shall have occurred, the Equity Backstop Commitment Agreement (as defined in Exhibit A-2 hereto); (j) so long as the Noteholder Termination (as defined below) shall not have occurred, the Noteholder Backstop Commitment Agreement; (k) the Rights Offering Procedures; (l) such documentation to be determined by the Plan Sponsor and the Debtors governing the terms of the Incremental Equity Investment (if any); (m) the Registration Rights Agreement; (n) the SHA; (o) the Management Incentive Plan; (p) amended employment agreements for each executive officer of the Reorganized Debtors; (q) the certificates of incorporation, limited liability agreements, bylaws, and other organizational documents (as applicable) of the Reorganized Debtors; and (r) all other documents that will comprise the Plan Supplement or are otherwise related to the Plan.  The Definitive Documentation remains subject to negotiation and completion and shall, upon completion, contain terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement, and shall be subject to any consent rights set forth in this Agreement and otherwise be in form and substance acceptable to the Debtors and the Required Supporting Term Lenders ⁵ and reasonably acceptable to the Required Supporting Noteholders and the Prepetition RBL Agent; provided that, except as otherwise set forth herein, the Definitive Documentation shall be deemed acceptable to the Prepetition RBL Agent unless the Prepetition RBL Agent delivers written notice (which may be by email) to the contrary to the Company Parties and the Required Supporting Term Lenders within two (2) business days of the Prepetition RBL Agent’s receipt of such documentation; provided , further , that the Exit Facility Documentation shall be in form and substance acceptable to the Debtors, the Required Supporting Term Lenders and the Prepetition RBL Agent and reasonably acceptable to the Required Supporting Noteholders, and the Exit Facility contemplated thereunder shall be consistent in all material respects with the Exit Facility Term Sheet; provided , further , that, by executing this Agreement, the undersigned Parties acknowledge and agree that the form and substance of the DIP Credit Agreement, the Interim DIP Order, and the Sponsor Backstop Commitment Agreement and the Noteholder Backstop Commitment Agreement attached to the Restructuring Term Sheet, respectively, as Exhibit B-1, Exhibit B-2, Exhibit E, and Exhibit G are each acceptable to such Party (for the avoidance of doubt, any amendments or modifications to the Noteholder Backstop Commitment Agreement shall require the consent of the parties as set forth therein and herein); provided , further , that the undersigned Original RSA Parties acknowledge and agree that the form and substance of the Equity Backstop Commitment Agreement (as defined in Exhibit A-2 ) is acceptable to each such Party; provided , further , that the Definitive Documentation shall specify the price per share and the number of shares with respect to the New Common Equity Pool in a manner acceptable to the Plan Sponsor.

 

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Section 4. Commitments Regarding the Restructuring .

 

4.01.       Commitment of the Supporting Creditors .

 

(a)          During the period beginning on the Agreement Effective Date and ending on a Termination Date (as defined in Section 7.05) (such period, the “ Effective Period ”), each Supporting Creditor shall (severally and not jointly), in each of its capacities as a holder of claims against the Debtors, including, without limitation, claims in connection with the DIP Facility (“ Claims ”) or interests in the Debtors (“ Interests ” and together with Claims, the “ Debtor Claims/Interests ”):

 

(i)            use good faith efforts to negotiate, execute and implement the Definitive Documentation on terms consistent with this Agreement and to implement the Restructuring;

 

(ii)         to the extent a class is permitted to vote to accept or reject the Plan and upon receipt of the Disclosure Statement that has been approved by the Bankruptcy Court, vote each of its Debtor Claims/Interests reflected on the signature pages hereto to (A) accept the Plan by delivering its duly executed and completed ballot(s) accepting the Plan on a timely basis and (B) not withdraw, amend, or revoke (or cause to be withdrawn, amended, or revoked) its vote with respect to the Plan, provided , however , that the votes of the Supporting Creditors shall be immediately revoked and deemed null and void ab initio upon termination of this Agreement other than pursuant to Section 7.04 of this Agreement; provided , further , that nothing in this Agreement shall prevent any Supporting Creditor from withholding, amending, or revoking its timely consent or vote with respect to the Plan if this Agreement is terminated with respect to such Supporting Creditor other than pursuant to Section 7.04 of this Agreement;

 

(iii)        not (A) object to, delay, interfere, impede, or take any other action to delay, interfere or impede, directly or indirectly, with the Restructuring, confirmation of the Plan, or approval of the Disclosure Statement or the Solicitation Materials (including joining in or supporting any efforts to object to or oppose any of the foregoing) or (B) propose, file, support, or vote for, directly or indirectly, any restructuring, workout, plan of arrangement, alternative transaction, including a sale pursuant to section 363 of the Bankruptcy Code, or chapter 11 plan for the Debtors other than the Restructuring and the Plan;

 

(iv)        not object to any First Day and Second Day Pleadings consistent with this Agreement filed by the Debtors in furtherance of the Restructuring, including any motion seeking approval of the DIP Facility on the terms set forth in the Restructuring Term Sheet and the DIP Credit Agreement;

 

(v)         not, nor encourage any other person or entity to, take any action, including initiating or joining in any legal proceeding that is inconsistent with this Agreement, or delay, impede, appeal, or take any other negative action, directly or indirectly, that could reasonably be expected to interfere with the approval, acceptance, confirmation, consummation, or implementation of the Restructuring or the Plan, as applicable;

 

(vi)         not exercise any right or remedy for the enforcement, collection, or recovery of any obligation arising under the Prepetition Credit Agreements;

 

(vii)        not instruct (or join in any direction requesting that) the Prepetition Agents or any agent under related loan documents to take any action, or refrain from taking any action, that would be inconsistent with this Agreement, the Plan, or the Restructuring; and

 

(viii)       not object to or opt out of any release included in the Solicitation Materials or the Plan, so long as such release is consistent with the Restructuring Term Sheet.

 

(b)         Nothing contained herein nor any vote to accept the Plan or other acceptance of or support for the Plan shall limit (i) the rights of any Supporting Creditor under applicable bankruptcy or insolvency law, or in any foreclosure or similar proceeding, including appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as the exercise of any such right is consistent with such Supporting Creditor’s obligations hereunder; (ii) subject to the terms of Section 4.03 hereof, the ability of any Supporting Creditor to purchase, sell or enter into any transactions in connection with its Claims, subject to the terms hereof; (iii) subject to the terms of Section 4.01(a) hereof, any right of a Supporting Creditor under (x) the Prepetition Credit Agreements or (y) any other applicable agreement, instrument or document that gives rise to any Claim or Interest of such Supporting Creditor, nor shall anything contained herein be deemed to constitute a waiver or amendment of any provision of any such agreement described in the foregoing clauses (x) and (y); (iv) the ability of any Supporting Creditor to consult with other Lenders or the Company; or (v) the ability of any Supporting Creditor to enforce any right, remedy, condition, consent or approval requirement under this Agreement or any of the Definitive Documentation.

 

4.02.      Commitment of the Company Parties .

 

(a)            During the Effective Period, the Company Parties agree to:

 

(i)            pursue the Restructuring on the terms set forth in this Agreement and the Restructuring Term Sheet and not sign any agreement to pursue any auction, sale process or other restructuring transaction for the Company or any significant portion of its assets outside of the ordinary course of business;

 

(ii)          not engage in (A) any asset sale transactions (excluding sales of hydrocarbons relating to recurring revenues in the ordinary course of business) for which the fair market value of the gross consideration, individually or in the aggregate, exceeds $1 million or (B) any “land swap” transactions, in each case of the foregoing clauses (A) and (B), without the prior written consent of the Required Supporting Term Lenders;

 

(iii)        use good faith efforts to implement the Restructuring Term Sheet and the DIP Credit Agreement and, in each case, the transactions and other actions contemplated hereby and thereby;

 

(iv)         (A) support and complete the Restructuring and all transactions set forth in this Agreement, including confirmation of the Plan and entry of the Confirmation Order; (B) negotiate in good faith all Definitive Documentation that is subject to negotiation as of the Agreement Effective Date; (C) execute and deliver any other required agreements to effectuate and consummate the Restructuring; (D) make commercially reasonable efforts to obtain required regulatory and/or third-party approvals for the Restructuring; (E) complete the Restructuring in a timely and expeditious manner, and as otherwise required by this Agreement and the Definitive Documentation; (F) operate their business, subject to the Interim DIP Order and the Final DIP Order, in the ordinary course, taking into account the Restructuring and the commencement of the Chapter 11 Cases; and (G) not undertake any actions materially inconsistent with the Restructuring or the adoption and implementation of the Plan and confirmation thereof;

 

(v)          not object to, delay, or impede, or take any other action that is materially inconsistent with, or is intended or is likely to interfere with, acceptance or implementation of the Restructuring;

 

(vi)         not seek to amend or modify, or file a pleading seeking authority to amend or modify, the Definitive Documentation or any other document related to the Prepetition Credit Agreements, DIP Facility or the Restructuring in a manner that is materially inconsistent with this Agreement;

 

(vii)        not file any pleading that is materially inconsistent with the Restructuring or the terms of this Agreement; and

 

(viii)      not engage in any material merger, consolidation, sale of all or substantially all assets, dividend, incurrence of indebtedness or other similar transaction outside of the ordinary course of business other than the transactions contemplated herein.

 

(b)           During the Effective Period, the Company Parties or the Debtors, as applicable, also agree to the following affirmative covenants:

 

(i)          The Debtors shall provide counsel for the Supporting Creditors at least two (2) business days prior to the date when the Debtors intend to file such document draft copies of all material motions and proposed orders intended to be filed with the Bankruptcy Court, including all First Day and Second Day Pleadings, and shall consult in good faith with such counsel regarding the form and substance of all such material proposed filings with the Bankruptcy Court;

 

(ii)          the Chapter 11 Cases shall be commenced on or before June 18, 2019 (the “ Petition Date ”), subject to extension with the consent of the Required Supporting Term Lenders, the Required Supporting Noteholders, and the RBL Lenders holding a majority of the RBL Claims;

 

(iii)         the Debtors shall timely file a formal objection to any unresolved motion filed with the Bankruptcy Court by a third party seeking the entry of an order (A) directing the appointment of an examiner with expanded powers to operate the Debtors’ businesses pursuant to section 1104 of the Bankruptcy Code or a trustee, (B) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, (D) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization under section 1121 of the Bankruptcy Code, or (E) any motion for derivative standing on behalf of any Company Party’s estate to seek any relief adverse to any Supporting Creditor;

 

(iv)         the Debtors shall timely file a formal written response in opposition to (or otherwise address in a manner reasonably acceptable to the Required Supporting Term Lenders and the Prepetition RBL Agent) any objection filed with the Bankruptcy Court by any Person with respect to entry of the Interim DIP Order or the Final DIP Order or with respect to any adequate protection proposed to be granted or granted to the Supporting Creditors pursuant to any cash collateral order;

 

(v)          the Debtors shall promptly notify the Supporting Creditors in writing of (i) any governmental or third-party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened); (ii) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring; and (iii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made;

 

(vi)        upon reasonable request of the Plan Sponsor, the Prepetition RBL Agent, or the Required Supporting Noteholders, inform the advisors to such requesting Parties as to:  (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring, including progress in relation to the negotiations of the Definitive Documentation; and (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from each Supporting Creditor, any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;

 

(vii)       the Debtors shall promptly notify the Supporting Creditors of any breach  (including a breach by any Company Party) of the obligations, representations, warranties or covenants set forth in this Agreement by furnishing written notice to the Supporting Creditors pursuant to Section 10.09 hereof within two (2) calendar days of actual knowledge of such breach.

 

To the extent of any conflict between this Agreement and any DIP Documentation, this Section 4.02 and each other section in this Agreement shall not be deemed to supersede or modify such DIP Documentation.

 

4.03.   Transfer of Interests and Securities .

 

(a)        During the Effective Period, (i) no Supporting Creditor shall sell, pledge, assign, or transfer (each, a “ Transfer ”) any of the Debtor Claims/Interests, unless the transferee thereof (“ Transferee ”) either (x) is a Supporting Creditor, or (y) prior to such Transfer, agrees in writing for the benefit of the other Parties to be bound by all of the terms of this Agreement with respect to such acquired Debtor Claim/Interest by executing the joinder in the form attached hereto as Exhibit B   (the “ Joinder Agreement ”), and delivering an executed copy thereof, within five (5) business days of closing of such Transfer, to the parties set forth in Section 10.09 hereof, in which event the transferee shall be deemed to be a Supporting Creditor under this Agreement with respect to such transferred Debtor Claims/Interests.  Each Supporting Creditor agrees and acknowledges that any Transfer of Debtor Claims/Interests that does not comply with the terms and procedures set forth in this Section 4.03 shall be deemed null and void ab initio .

 

(b)          Notwithstanding anything herein to the contrary, (i) any Supporting Creditor may Transfer (by purchase, sale, assignment, participation, or otherwise) any Debtor Claims/Interests to an entity that is acting in its capacity as a Qualified Marketmaker ⁶ without the requirement that the Qualified Marketmaker be or become a Supporting Creditor; provided that the Qualified Marketmaker subsequently Transfers (by purchase, sale, assignment, participation, or otherwise) the right, title, or interest in such Debtor Claims/Interests within thirty (30) days of its receipt thereof to a transferee that is or becomes a Supporting Creditor by executing a Joinder Agreement; and (ii) to the extent a Supporting Creditor, acting in its capacity as a Qualified Marketmaker, acquires any Debtor Claims/Interests from a holder of such claim or interest who is not a Supporting Creditor, it may transfer (by purchase, sale, assignment, participation, or otherwise) such claim or interest without the requirement that the transferee be or become a Supporting Creditor.  For the avoidance of doubt, if a Qualified Marketmaker acquires a Debtor Claim/Interest from a Supporting Creditor as an “own account” investment, it shall not be deemed to be a Qualified Marketmaker for purposes of this Section 4.03(b).

 

(c)        This Agreement shall in no way be construed to preclude the Supporting Creditors from acquiring additional Debtor Claims/Interests; provided ,   however , such acquired Debtor Claims/Interests shall automatically and immediately upon acquisition by a Supporting Creditor be deemed subject to the terms of this Agreement (regardless of when or whether notice of such acquisition is given to the Debtors).

 

(d)        To the extent the Debtors and another Party have entered into a separate confidentiality agreement with respect to the issuance of a “cleansing letter” or other public disclosure of information in connection with any proposed Restructuring (each such executed agreement, a “ Confidentiality Agreement ”), the terms of such Confidentiality Agreement shall continue to apply and remain in full force and effect according to its terms.

 

4.04.       Representations and Warranties of Supporting Creditors . Each Supporting Creditor, severally, and not jointly, represents and warrants to all Parties that:

 

(a)         it is the beneficial owner of the face amount or unit amount, as applicable, of the Debtor Claims/Interests, or is the nominee, investment manager, or advisor for beneficial holders of the Debtor Claims/Interests, as reflected, subject to Section 10.13 of this Agreement, in such Supporting Creditor’s signature block to this Agreement (each such signature block, a “ Supporting Creditor Signature Block ”), which amount each Party understands and acknowledges is proprietary and confidential to such Supporting Creditor (such Debtor Claims/Interests, the “ Owned Debtor Claims/Interests ”);

(b)         it has the authority to act on behalf of, vote and consent to matters concerning the Owned Debtor Claims/Interests (or direct such action, vote, or consent);

 

(c)         the Owned Debtor Claims/Interests are free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition, transfer, or encumbrances of any kind, that would adversely affect in any way such Supporting Creditor’s ability to perform any of its obligations under this Agreement at the time such obligations are required to be performed; and

 

(d)         (i) it is either (A) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (B) an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3), or (7) under the Securities Act of 1933, as amended (the “ Securities Act ”)), (C) a Regulation S non- U.S. person or (D) the foreign equivalent of (A) or (B) above, and (ii) any securities of the Company acquired by the applicable Supporting Creditor in connection with the Restructuring will have been acquired for investment and not with a view to distribution or resale in violation of the Securities Act.

 

Section 5. Mutual Representations, Warranties, and Covenants . Each of the Parties, severally and not jointly represents, warrants, and covenants to each other Party:

 

5.01.       Enforceability . It is validly existing and in good standing under the laws of the state of its organization, and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

 

5.02.      No Consent or Approval . Except as expressly provided in this Agreement, the Plan, the Restructuring Term Sheet, or the Bankruptcy Code, no consent or approval is required by any other person or entity in order for it to effectuate the Restructuring contemplated by, and perform the respective obligations under, this Agreement.

 

(a)          Compliance with Laws; No Conflict .  The execution, delivery, and performance of this Agreement does not and shall not: (i) violate any provision of law, rules, or regulations applicable to it or any of its subsidiaries in any material respect; (ii) violate its certificate of incorporation, bylaws, or other organizational documents or those of any of its subsidiaries; or (iii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual obligation to which it is a party, which conflict, breach, or default, would have a material adverse effect on the Restructuring.

 

5.04.     Power and Authority . Except as expressly provided in this Agreement, it has all requisite corporate or other power and authority to enter into, execute, and deliver this Agreement and to effectuate the Restructuring contemplated by, and perform its respective obligations under, this Agreement.

 

5.05.   Governmental Consents . Except as expressly set forth herein and with respect to the Company Parties’ performance of this Agreement (and subject to necessary Bankruptcy Court approval and/or regulatory approvals associated with the Restructuring), the execution, delivery and performance by it of this Agreement does not, and shall not, require any registration or filing with consent or approval of, or notice to, or other action to, with or by, any federal, state, or other governmental authority or regulatory body.

 

Section 6. Acknowledgement . Notwithstanding any other provision herein, this Agreement is not and shall not be deemed to be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for purposes of sections 1125 and 1126 of the Bankruptcy Code or otherwise.  Any such offer or solicitation will be made only in compliance with all applicable securities laws and provisions of the Bankruptcy Code.  The Debtors will not solicit acceptances of the Plan from Supporting Creditors in any manner inconsistent with the Bankruptcy Code or applicable bankruptcy law.

 

Section 7. Termination Events .

 

7.01.     Supporting Creditor Termination Events .

 

(a)         Supporting Term Lender Termination Events . This Agreement may be terminated as between the Supporting Term Lenders and the other Parties by the delivery to the Company Parties, and counsel to the other Supporting Creditors, of a written notice in accordance with Section 10.09 hereof by the Required Supporting Term Lenders, upon the occurrence and continuation of any of the following events:

 

(i)            any Company Party, as applicable, materially breaches its obligations under this Agreement and such breach has not been cured (if susceptible to cure) within five (5) business days after the receipt by the Company Parties of written notice of such breach;

 

(ii)         any Company Party publicly announces or informs the Supporting Creditors of its intention to pursue one or more restructuring transactions (including a chapter 11 plan and/or asset sale process under section 363 of the Bankruptcy Code) that contains terms and conditions that: (A) do not provide the Supporting Creditors with the economic recovery set forth in the Restructuring Term Sheet or (B) are not otherwise consistent with this Agreement and the Restructuring Term Sheet in any respect;

 

(iii)         the breach in any material respect (without giving effect to any “materiality” qualifiers set forth therein) by any Company Party of its representations, warranties, or covenants set forth in this Agreement that (if susceptible to cure), in each case, with respect to the Term Loan Claims of the Required Supporting Term Lenders, remains uncured for a period of five (5) business days after the receipt by the Company Parties of written notice of such breach;

 

(iv)         the (A) occurrence of a material breach of this Agreement by any Supporting RBL Lender that has not been cured (if susceptible to cure) within five (5) business days after the receipt by the Company Parties and such Supporting RBL Lender of written notice of such breach or (B) termination of this Agreement by the Supporting RBL Lenders;

 

(v)        the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling, or order enjoining, the consummation of a material portion of the Restructuring, or materially adversely affecting the recovery of the Supporting Creditors contemplated by this Agreement; provided , however , that the Company Parties shall have five (5) business days after issuance of such injunction, judgment, decree, charge, ruling, or order to obtain relief that would allow consummation of the Restructuring that (i) does not prevent or diminish in a material way compliance with the terms of this Agreement or (ii) is otherwise reasonably acceptable to the Required Supporting Term Lenders;

 

(vi)         entry of an order by the Bankruptcy Court appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code in any of the Chapter 11 Cases;

 

(vii)        any Company Party files any motion or pleading with the Bankruptcy Court that is materially inconsistent with this Agreement and such motion or pleading has not been withdrawn or is not otherwise denied by the Bankruptcy Court within three (3) calendar days of receipt of notice by such Party that such motion or pleading is inconsistent with this Agreement;

 

(viii)       any Company Party announces or otherwise provides notice of, without the prior written consent of the Plan Sponsor, its intention to pursue an asset sale outside of the ordinary course of business or any other transaction that is not consistent with the Restructuring;

 

(ix)         the entry of a ruling or order by the Bankruptcy Court that would prevent consummation of the Restructuring; provided , however , that the Debtors shall have five (5) business days after the date of such ruling or order to seek a stay of such ruling or order and shall have ten (10) calendar days after issuance of such ruling or order to obtain relief that (i) does not prevent or diminish in a material way compliance with the terms of this Agreement or (ii) is otherwise reasonably acceptable to the Required Supporting Term Lenders;

 

(x)           the conversion or dismissal of the Chapter 11 Cases;

 

(xi)         any of the Definitive Documentation shall have been modified without the prior written consent of the Required Supporting Term Lenders (such consent not to be unreasonably withheld);

 

(xii)       the occurrence of any Event of Default (as defined in the DIP Credit Agreement) under the DIP Facility unless such Event of Default (other than a payment event of default) has been waived no later than ten (10) business days following the occurrence thereof; provided that such waiver period shall not restrict termination under this Section 7.01(a)(xii) if the DIP Lenders earlier enforce or take steps to enforce remedies under the DIP Credit Agreement;

 

(xiii)       the occurrence of the Maturity Date (as defined in the DIP Credit Agreement), or the acceleration of the obligations under the DIP Credit Agreement;

 

(xiv)       the Bankruptcy Court enters an order in the Chapter 11 Cases terminating, or modifying without the prior written consent of the Required Supporting Term Lenders, the Debtors’ exclusive right to file a plan or plans of reorganization pursuant to section 1121 of the Bankruptcy Code;

 

(xv)       any Company Party executes or files with the Bankruptcy Court any Definitive Documentation that does not conform to the Restructuring Term Sheet or is otherwise not reasonably acceptable to the Required Supporting Term Lenders;

 

(xvi)      the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) that would have a material adverse effect on the Restructuring, without the written consent of the Required Supporting Term Lenders;

 

(xvii)      either (A) any Company Party files with the Bankruptcy Court a motion, application, or adversary proceeding (or any Company Party supports any such motion, application, or adversary proceeding filed or commenced by any third party (including by consent to derivative standing on behalf of any Company Party’s estate for a third party to file such motion, application, or adversary proceeding, except for any such consent that may be set forth in the Interim DIP Order or the Final DIP Order)) (1) challenging the validity, enforceability, or priority of, or seeking avoidance or subordination of, any Term Loan Claims, Notes Claims, or any liens or other security interests securing the Term Loan Claims or (2) asserting any other cause of action against the Supporting Creditors or (B) the Bankruptcy Court enters an order providing relief against any Supporting Creditor with respect to any of the foregoing causes of action or proceedings filed by any Company Party;

 

(xviii)     the Sponsor Backstop Commitment Agreement shall have been terminated;

 

(xix)      failure by any Debtor to comply with any material terms of the Sponsor Backstop Order (as defined below), the Disclosure Statement Order, and/or the Confirmation Order, unless such failure has been cured within five (5) business days of notice thereof by the Required Supporting Term Lenders ;

 

(xx)        any Debtor makes a payment or other transfer outside of the ordinary course of business, without the prior written consent of the Plan Sponsor, to any insider of any Debtor that is inconsistent with the terms of the Debtors’ existing insider compensation plans (including retention and incentive plans);

 

(xxi)        the Chapter 11 Cases are not commenced before the Bankruptcy Court by June 18, 2019;

 

(xxii)     an order approving the Sponsor Backstop Commitment Agreement (including, without limitation, the payment of the fees and expenses of the Plan Sponsor’s Professionals as an Administrative Expense) in form and substance acceptable to the Sponsor Backstop Parties (the “ Sponsor Backstop Order ”) has not been entered within forty-five (45) calendar days of the Petition Date;

 

(xxiii)     the Interim DIP Order has not been entered by the Bankruptcy Court within five (5) calendar days of the Petition Date;

 

(xxiv)     the Final DIP Order has not been entered by the Bankruptcy Court within forty-five (45) calendar days of entry of the Interim DIP Order;

 

(xxv)     the Plan and Disclosure Statement have not been filed with the Bankruptcy Court within forty-five (45) calendar days of the Petition Date;

 

(xxvi)     the Disclosure Statement Order has not been entered by the Bankruptcy Court within ninety (90) calendar days of the Petition Date;

 

(xxvii)    an order scheduling the confirmation hearing and related discovery has not been entered by the Bankruptcy Court within ninety (90) calendar days of the Petition Date;

 

(xxviii)   the Confirmation Order has not been entered by the Bankruptcy Court within sixty (60) calendar days of entry of the Disclosure Statement Order; and

 

(xxix)     the Plan Effective Date has not occurred within thirty (30) calendar days following the date of entry of the Confirmation Order (together with the milestones set forth in the foregoing clauses (xxi) to (xxviii), collectively, the “ Milestones ”).

 

The Milestones may be extended with the prior written consent of the Required Supporting Term Lenders.

 

(b)         Supporting RBL Lender Termination Events .  This Agreement may be terminated as between the Supporting RBL Lenders and the other Parties by the delivery to the Company Parties, and counsel to the other Supporting Creditors, of a written notice in accordance with Section 10.09 hereof by the Required Supporting RBL Lenders, upon the occurrence and continuation of any of the following events:

 

(i)            any Company Party, as applicable, materially breaches its obligations under this Agreement and such breach has not been cured (if susceptible to cure) within five (5) business days after the receipt by the Company Parties of written notice of such breach;

 

(ii)         any Company Party publicly announces or informs the Supporting Creditors of its intention to pursue one or more restructuring transactions (including a chapter 11 plan and/or asset sale process under section 363 of the Bankruptcy Code) that contains terms and conditions that: (A) do not provide the Supporting Creditors with the economic recovery set forth in the Restructuring Term Sheet or (B) are not otherwise consistent with this Agreement and the Restructuring Term Sheet in any respect;

 

(iii)         the breach in any material respect (without giving effect to any “materiality” qualifiers set forth therein) by any Company Party of its representations, warranties, or covenants set forth in this Agreement that (if susceptible to cure), in each case, with respect to the RBL Claims of the Required Supporting RBL Lenders, remains uncured for a period of five (5) business days after the receipt by the Company Parties of written notice of such breach;

 

(iv)         the (A) occurrence of a material breach of this Agreement by any Supporting Term Lender that has not been cured (if susceptible to cure) within five (5) business days after the receipt by such Supporting Term Lender of written notice of such breach or (B) termination of this Agreement by the Supporting Term Lenders;

 

(v)        the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling, or order enjoining, the consummation of a material portion of the Restructuring, or materially adversely affecting the recovery of the Supporting RBL Lenders contemplated by this Agreement; provided , however , that the Company Parties shall have five (5) business days after issuance of such injunction, judgment, decree, charge, ruling, or order to obtain relief that would allow consummation of the Restructuring that (i) does not prevent or diminish in a material way compliance with the terms of this Agreement or (ii) is otherwise reasonably acceptable to the Prepetition RBL Agent;

 

(vi)         entry of an order by the Bankruptcy Court appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code in any of the Chapter 11 Cases;

 

(vii)        any Company Party files any motion or pleading with the Bankruptcy Court that is materially inconsistent with this Agreement and such motion or pleading has not been withdrawn or is not otherwise denied by the Bankruptcy Court within three (3) calendar days of receipt of notice by such Party that such motion or pleading is inconsistent with this Agreement;

 

(viii)       the entry of a ruling or order by the Bankruptcy Court that would prevent consummation of the Restructuring; provided , however , that the Debtors shall have five (5) business days after the date of such ruling or order to seek a stay of such ruling or order and shall have ten (10) calendar days after issuance of such ruling or order to obtain relief that (i) does not prevent or diminish in a material way compliance with the terms of this Agreement or (ii) is otherwise reasonably acceptable to the Prepetition RBL Agent;

 

(ix)          the conversion or dismissal of the Chapter 11 Cases;

 

(x)          any of the Definitive Documentation shall have been modified without the prior written consent (which may be via email) of the Prepetition RBL Agent (such consent not to be unreasonably withheld);

 

(xi)        the occurrence of any Event of Default (as defined in the DIP Credit Agreement) under the DIP Facility unless such Event of Default (other than a payment event of default) has been waived no later than ten (10) business days following the occurrence thereof; provided that such waiver period shall not restrict termination under this Section 7.01(b)(iv) if the DIP Lenders earlier enforce or take steps to enforce remedies under the DIP Credit Agreement ;

 

(xii)      any Company Party executes or files with the Bankruptcy Court any Definitive Documentation that does not conform to the Restructuring Term Sheet or is otherwise not reasonably acceptable to the Prepetition RBL Agent;

 

(xiii)      the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) that would have a material adverse effect on the Restructuring, without the written consent of the Prepetition RBL Agent;

 

(xiv)       either (A) any Company Party files with the Bankruptcy Court a motion, application, or adversary proceeding (or any Company Party supports any such motion, application, or adversary proceeding filed or commenced by any third party (including by consent to derivative standing on behalf of any Company Party’s estate for a third party to file such motion, application, or adversary proceeding, except for any such consent that may be set forth in the Interim DIP Order or the Final DIP Order)) (1) challenging the validity, enforceability, or priority of, or seeking avoidance or subordination of, any RBL Claims or any liens or other security interests securing the RBL Claims or (2) asserting any other cause of action against the RBL Lenders or (B) the Bankruptcy Court enters an order providing relief against any RBL Lender with respect to any of the foregoing causes of action or proceedings filed by any Company Party;

 

(xv)         the Sponsor Backstop Commitment Agreement shall have been terminated;

 

(xvi)      the Sponsor Backstop Order has not been entered in accordance with the Milestone set forth in section 7.01(a)(xxii) of this Agreement and such Milestone has not been extended or waived by the Required Supporting Term Lenders;

 

(xvii)      failure by any Debtor to comply with any material terms of the Disclosure Statement Order, and/or the Confirmation Order unless such failure has been cured within ten (10) business days of the occurrence thereof;

 

(xviii)     an order approving the Upfront Fees (as defined in the Exit Facility Term Sheet) has not been entered within sixty (60) calendar days of the Petition Date; and

 

(xix)        termination of this Agreement by the Supporting Term Lenders .

 

(c)         Supporting Noteholder Termination Events .  This Agreement may be terminated as between the Supporting Noteholders and the other Parties by the delivery to the Company Parties, and counsel to the other Supporting Creditors, of a written notice in accordance with Section 10.09 hereof by the Required Supporting Noteholders, and solely with respect to subsections (ii), (iv), (x), (xii), (xiv), (xvi), and (xix) of this Section 7.01(c), by the Specified Event Required Supporting Noteholders , ⁷   upon the occurrence and continuation of any of the following events:

 

(i)            any Company Party, as applicable, materially breaches its obligations under this Agreement and such breach has not been cured (if susceptible to cure) within five (5) business days after the receipt by the Company Parties of written notice of such breach;

 

(ii)         any Company Party publicly announces or informs the Supporting Creditors of its intention to pursue one or more restructuring transactions (including a chapter 11 plan and/or asset sale process under section 363 of the Bankruptcy Code) that contains terms and conditions that: (A) do not provide the Supporting Creditors with the economic recovery set forth in the Restructuring Term Sheet or (B) are not otherwise consistent with this Agreement and the Restructuring Term Sheet in any respect;

 

⁷ “ Specified Event Required Supporting Noteholders ” means, at any relevant time, the Supporting Creditors holding greater than 50.0% of the outstanding principal amount of the Notes Claims held by the Supporting Creditors; provided that Notes Claims held by the Plan Sponsor may not, in the aggregate, account for more than 25% of the amounts set forth in the calculation of the Specified Event Required Supporting Noteholders.

(iii)         the breach in any material respect (without giving effect to any “materiality” qualifiers set forth therein) by any Company Party of its representations, warranties, or covenants set forth in this Agreement that (if susceptible to cure), in each case, with respect to the Notes Claims of the Required Supporting Noteholders, remains uncured for a period of five (5) business days after the receipt by the Company Parties of written notice of such breach;

 

(iv)         the (A) occurrence of a material breach of this Agreement by any Supporting Term Lender that has not been cured (if susceptible to cure) within five (5) business days after the receipt by the Company Parties and such Supporting Term Lender  of written notice of such breach or (B) termination of this Agreement by the Supporting Term Lenders;

 

(v)        the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling, or order enjoining, the consummation of a material portion of the Restructuring, or materially adversely affecting the recovery of the Supporting Noteholders contemplated by this Agreement; provided , however , that the Company Parties shall have five (5) business days after issuance of such injunction, judgment, decree, charge, ruling, or order to obtain relief that would allow consummation of the Restructuring that (i) does not prevent or diminish in a material way compliance with the terms of this Agreement or (ii) is otherwise reasonably acceptable to the Required Supporting Noteholders;

 

(vi)         entry of an order by the Bankruptcy Court appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code in any of the Chapter 11 Cases;

 

(vii)        any Company Party files any motion or pleading with the Bankruptcy Court that is materially inconsistent with this Agreement and such motion or pleading has not been withdrawn or is not otherwise denied by the Bankruptcy Court within three (3) calendar days of receipt of notice by such Party that such motion or pleading is inconsistent with this Agreement;

 

(viii)       the entry of a ruling or order by the Bankruptcy Court that would prevent consummation of the Restructuring; provided , however , that the Debtors shall have five (5) business days after the date of such ruling or order to seek a stay of such ruling or order and shall have ten (10) calendar days after issuance of such ruling or order to obtain relief that (i) does not prevent or diminish in a material way compliance with the terms of this Agreement or (ii) is otherwise reasonably acceptable to the Required Supporting Noteholders;

 

(ix)          the conversion or dismissal of the Chapter 11 Cases;

 

(x)          any of the Definitive Documentation shall have been modified without the prior written consent of the Specified Event Required Supporting Noteholders (such consent not to be unreasonably withheld);

 

(xi)         the occurrence of the Maturity Date (as defined in the DIP Credit Agreement), or the acceleration of the obligations under the DIP Credit Agreement;

 

(xii)      any Company Party executes or files with the Bankruptcy Court any Definitive Documentation that does not conform to the Restructuring Term Sheet or is otherwise not reasonably acceptable to the Specified Event Required Supporting Noteholders;

 

(xiii)      the Bankruptcy Court grants relief terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) that would have a material adverse effect on the Restructuring, without the written consent of the Required Supporting Noteholders;

 

(xiv)        the Sponsor Backstop Commitment Agreement or the Noteholder Backstop Commitment Agreement shall have been terminated;

 

(xv)        the Debtors shall have failed to comply with any of the Milestones to the extent such Milestones have not been waived or extended by the Required Supporting Term Lenders in accordance with section 7.01(a);

 

(xvi)      failure by any Debtor to comply with any material terms of the Noteholder Backstop Order (as defined below), the Disclosure Statement Order, and/or the Confirmation Order unless such failure has been cured within five (5) business days of notice thereof by the Required Supporting Noteholders;

 

(xvii)       termination of this Agreement by the Supporting Term Lenders ;

 

(xviii)     the Chapter 11 Cases are not commenced before the Bankruptcy Court by June 18, 2019;

 

(xix)       an order approving the Noteholder Backstop Commitment Agreement (including, without limitation, the payment of the fees and expenses of the Noteholder Backstop Parties’ Professionals as an Administrative Expense) in form and substance acceptable to the Noteholder Backstop Parties (the “ Noteholder Backstop Order ”) has not been entered within forty-five (45) calendar days of the Petition Date;

 

(xx)       the Plan and Disclosure Statement have not been filed with the Bankruptcy Court within forty-five (45) calendar days of the Petition Date;

 

(xxi)       the Disclosure Statement Order has not been entered by the Bankruptcy Court within ninety (90) calendar days of the Petition Date;

 

(xxii)     an order scheduling the confirmation hearing and related discovery has not been entered by the Bankruptcy Court within ninety (90) calendar days of the Petition Date;

 

(xxiii)     the Confirmation Order has not been entered by the Bankruptcy Court within sixty (60) calendar days of entry of the Disclosure Statement Order; and

 

(xxiv)     the Plan Effective Date has not occurred within thirty (30) calendar days following the date of entry of the Confirmation Order; (together with the milestones set forth in the foregoing clauses (xix) to (xxiii), collectively, the “ Noteholder Milestones ”).

 

(d)            Noteholder Termination .  Upon the occurrence of (i) any termination of this Agreement by the Supporting Noteholders in accordance with Section 7.01(c), (ii) any termination of the Noteholder Backstop Commitment Agreement, and/or (iii) a material breach of this Agreement by any Supporting Noteholder that has not been cured (if susceptible to cure) within five (5) business days after the receipt by the Company Parties and such Supporting Noteholder of written notice of such breach given by the Plan Sponsor, the Plan Sponsor, by written notice to the Company Parties delivered in accordance with Section 10.09 of this Agreement, may terminate this Agreement with respect to the Supporting Noteholders (the “ Noteholder Termination ”).  Upon the occurrence of the Noteholder Termination, the Supporting Noteholders shall cease to be Parties to this Agreement and all references to the “Restructuring Term Sheet” in this Agreement shall be deemed to refer to the Restructuring Term Sheet attached hereto as Exhibit A-2 .  For the avoidance of doubt, upon the occurrence of the Noteholder Termination, the Sponsor Backstop Commitment Agreement (as defined in Exhibit A-1 hereto) shall automatically terminate, and, for so long as this Agreement remains in effect with respect to the Plan Sponsor, the Equity Backstop Commitment Agreement (as defined in Exhibit A-2 hereto) shall remain in full force and effect.  Notwithstanding the occurrence of the Noteholder Termination, this Agreement shall remain in full force and effect with respect to the other Parties.  Upon the Noteholder Termination, Section 7.01(a) of this Agreement shall be automatically deemed amended and replaced in its entirely without further notice or action of any Party in the form attached hereto as Exhibit C .

 

7.02.       Debtors’ Termination Events . The Debtors may terminate this Agreement as to all Parties upon five (5) business days’ prior written notice, delivered in accordance with Section   10.09 hereof, upon the occurrence of any of the following events: (a) the breach by any of the Supporting Creditors of any material provision set forth in this Agreement that remains uncured for a period of five (5) business days after the receipt by the Supporting Creditors of notice of such breach; (b) the board of directors, board of managers, or such similar governing body of any Debtor determines based on advice of counsel that proceeding with any of the Restructuring would be inconsistent with the exercise of its fiduciary duties; or (c) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order enjoining the consummation of a material portion of the Restructuring; provided that, for the avoidance of doubt, 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 Section 7.02.

 

7.03.       Mutual Termination . This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual agreement among all of the following: (a) the Required Supporting Term Lenders, (b) the Required Supporting RBL Lenders, (c) the Required Supporting Noteholders, and (d) each of the Company Parties.

 

7.04.       Termination Upon Completion of the Restructuring . This Agreement shall terminate automatically without any further required action or notice on the Plan Effective Date.

7.05.        Effect of Termination .

(b)          Except as set forth below, upon the occurrence of a Termination Date as to a Party, this Agreement shall be of no further force and effect and each Party subject to such termination shall be released from its commitments, undertakings, and agreements under or related to this Agreement and shall have the rights and remedies that it would have had, had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the Restructuring or otherwise, that it would have been entitled to take had it not entered into this Agreement.  Upon the occurrence of a Termination Date, any and all consents or ballots tendered by the Parties subject to such termination before a Termination Date shall be deemed, for all purposes, to be null and void from the first instance and shall not be considered or otherwise used in any manner by the Parties in connection with the Restructuring and this Agreement or otherwise.

 

(c)         Notwithstanding anything to the contrary in this Agreement, the foregoing shall not be construed to prohibit the Debtors or any of the Supporting Creditors from contesting whether any such termination is in accordance with the terms of, or to seek enforcement of any rights under this Agreement that arose or existed before a Termination Date.  Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict (i) any right of any Debtor or the ability of any Debtor to protect and preserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any Supporting Creditor, and (ii) any right of any Supporting Creditor, or the ability of any Supporting Creditor to protect and preserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any Debtor or Supporting Creditor.

 

Section 8. Amendments . This Agreement, including, without limitation, the Restructuring Term Sheet, may not be modified, amended, or supplemented without prior written consent of the Company Parties, the Required Supporting Term Lenders, the Required Supporting RBL Lenders and the Required Supporting Noteholders; provided that, such consent of the Required Supporting RBL Lenders and the Required Supporting Noteholders shall not be unreasonably withheld; provided , however that, any modification, amendment or supplement that would adversely and disproportionately affect the Noteholders relative to the Term Lenders shall require the prior written consent of the Specified Event Required Supporting Noteholders .

 

Section 9. Fees and Expenses . The Company Parties hereby agree to pay in cash, in full, in accordance with their respective engagement letters, any fee letters executed by the Company Parties, and/or the terms of the Prepetition Term Loan Credit Agreement (and in any case within three (3) business days), all invoiced fees and out-of-pocket expenses incurred by the Supporting Creditors prior to the termination of this Agreement with respect to such Supporting Creditors, including all invoiced fees and out-of-pocket expenses of (a) Latham & Watkins LLP (“ Latham ”), (b) PJT Partners, Inc. (“ PJT ”), (c) Orrick, Herrington & Sutcliffe LLP, (d) Porter Hedges LLP (“ PH ”, and together with Latham, PJT, and PH, collectively, the “ Plan Sponsor’s Professionals ”), (e) one local counsel in each jurisdiction in which any Company Party or any subsidiary thereof is located, (f) one additional counsel for each of the Prepetition Agents to represent each in its own capacity, in each case incurred prior to the earlier of the Plan Effective Date and the termination of this Agreement, (g) Davis Polk & Wardwell LLP (“ Davis Polk ”), (h) Houlihan Lokey, Inc. (“ HL ”) and (i) Rapp & Krock, PC (“ Rapp & Krock ”, and together with Davis Polk and HL, the “ Noteholder Backstop Parties’ Professionals ”); provided that the Company Parties shall pay all amounts payable to the foregoing professionals pursuant to any fee letters executed by the Company Parties as a condition to the occurrence of the Agreement Effective Date.  The Company Parties hereby acknowledge and agree that the fees and expenses incurred by the Supporting Creditors prior to the termination of this Agreement are of the type that should be entitled to treatment as administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code.

 

Section 10. Miscellaneous .

 

10.01.     Further Assurances . Subject to the other terms of this Agreement, the Parties agree to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, or as may be required by order of the Bankruptcy Court, from time to time, to effectuate the Restructuring, as applicable.

 

10.02.     Complete Agreement . This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral, or written, among the Parties with respect thereto.

 

10.03.     Headings . The headings of all sections of this Agreement are inserted solely for the convenience of reference and are not a part of and are not intended to govern, limit, or aid in the construction or interpretation of any term or provision hereof.

 

10.04.    GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF FORUM . THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.  Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the extent possible, in either the United States District Court for the Southern District of New York or any New York State court located in New York County (the “ Chosen Courts ”), and solely in connection with claims arising under this Agreement: (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts; (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts; and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto; provided ,   however , that if the Debtors commence the Chapter 11 Cases, then the Bankruptcy Court (or court of proper appellate jurisdiction) shall be the exclusive jurisdiction, rather than any Chosen Court.

 

10.05.    Trial by Jury Waiver . EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

10.06.    Execution of Agreement . This Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement.  Each individual executing this Agreement on behalf of a Party has been duly authorized and empowered to execute and deliver this Agreement on behalf of said Party.

 

10.07.     Interpretation and Rules of Construction . This Agreement is the product of negotiations among the Parties, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the interpretation hereof.  The Parties were each represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel.  In addition, this Agreement shall be interpreted in accordance with section 102 of the Bankruptcy Code.

 

10.08.     Successors and Assigns . This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors and permitted assigns, as applicable.  There are no third-party beneficiaries under this Agreement, and the rights or obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other person or entity other than as permitted herein.

 

10.09.    Notices . All notices hereunder shall be deemed given if in writing and delivered, if sent by electronic mail, courier, or registered or certified mail (return receipt requested) to the following addresses (or at such other addresses as shall be specified by like notice):

 

or such other address as may have been furnished by a Party to each of the other Parties by notice given in accordance with the requirements set forth above.

 

Any notice given by delivery, mail, or courier shall be effective when received.

 

10.10.     Access . Each Company Party agrees to (a) provide the Prepetition Agents, the Supporting Creditors and their representatives with reasonable access to inspect such Company Party’s financial records and properties provided that such visits shall be during normal business hours (which access shall include, for the avoidance of doubt, access, upon reasonable notice during normal business hours, to relevant properties, books, contracts, commitments, records, directors, officers, personnel, advisors and representatives of the Company Parties) and (b) promptly provide such customary financial and other information regarding the Company Parties and their respective businesses and operations that the Supporting Creditors or their advisors may reasonably request to the extent that (i) such information is readily available to a Company Party, (ii) such information does not constitute trade secrets and (iii) the provision of such information is not prohibited by law or by the legally binding confidentiality obligations of any Company Party to a third party (other than another Company Party); provided that the Company Parties shall use commercially reasonable efforts to obtain the consent of any such third party to provide such information to the Prepetition Agents, the Supporting Creditors or their advisors on a confidential basis and use commercially reasonable efforts to communicate, to the extent permitted, the applicable information in a way that would not risk waiver of such privilege or violate the applicable obligation; provided , further , that the Company Parties’ obligations under this Section 10.10 shall be conditioned upon the applicable Prepetition Agent or Supporting Creditor or representative agreeing to maintain the confidentiality of such information in a manner consistent with the requirements for treatment of confidential information set forth in Section 10.07 of the Prepetition Term Loan Credit Agreement.  In addition, each Company Party agrees to provide the Prepetition Agents, the Supporting Creditors and their representatives with the reports and information delivered to the DIP Lenders and DIP Agent under the DIP Orders contemporaneously with such delivery.

 

10.11.      Independent Due Diligence and Decision Making . Each Supporting Creditor hereby confirms that it is (a) a sophisticated party with respect to the matters that are the subject of this Agreement, (b) has had the opportunity to be represented and advised by legal counsel in connection with this Agreement and acknowledges and agrees that it voluntarily and of its own choice and not under coercion or duress enters into the Agreement, (c) has adequate information concerning the matters that are the subject of this Agreement, and (d) has independently and without reliance upon any other Party hereto, or any of their affiliates, or any officer, employee, agent or representative thereof, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon each other Party’s express representations, warranties, and covenants in this Agreement.

 

10.12.     Waiver . If the Restructuring is not consummated, or if this Agreement is terminated for any reason, the Parties fully reserve any and all of their rights.

 

10.13.     Reporting of Debtor Claims/Interests . With respect to Claims related to the Prepetition Credit Agreements (“ Credit Agreement Claims ”), each Supporting Creditor Signature Block shall disclose only the aggregate principal amount of such Supporting Creditor’s beneficially owned or managed Credit Agreement Claims.  The Parties agree and acknowledge that the reported amount of such Credit Agreement Claims does not necessarily reflect the full amount of such Creditor’s Claims in respect of the Prepetition Credit Agreements (including, without limitation, principal, accrued and unpaid interest, fees and expenses) and any disclosure made on any Supporting Creditor Signature Block shall be without prejudice to any subsequent assertion by or on behalf of such Supporting Creditor of the full amount of its Claims.

 

10.14.     Automatic Stay . The Company acknowledges and agrees, and shall not dispute, that the giving of a termination notice in accordance with Section 7 and 10.09 hereof by any of the Supporting Creditors shall not be a violation of the automatic stay under section 362 of the Bankruptcy Code (and the Company hereby waives, to the greatest extent possible, the applicability of such automatic stay to the giving of such notice), and the Supporting Creditors are hereby authorized to take any steps necessary to effectuate the termination of this Agreement notwithstanding section 362 of the Bankruptcy Code or any other applicable law, and no cure period contained in this Agreement shall be extended pursuant to sections 108 or 365 of the Bankruptcy Code or any other applicable law without the prior written consent of the Required Term Lenders and, with respect to any cure period related to a termination event under (a) Section 7.01(b) of this Agreement, the Required Supporting RBL Lenders and (b) Section 7.01(c) of this Agreement, the Required Supporting Noteholders.

 

10.15.    Settlement Discussions; No Admission . This Agreement and the Plan are part of a proposed settlement of matters that could otherwise be the subject of litigation among the Parties hereto. Nothing herein shall be deemed an admission of any kind.  Pursuant to Federal Rule of Evidence 408 and any applicable state rules of evidence, this Agreement and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce the terms of this Agreement.  This Agreement shall in no event be construed as or be deemed to be evidence of an admission or concession on the part of any Party of any claim or fault or liability or damages whatsoever.

 

10.16.     Several, Not Joint, Claims . The agreements, representations, warranties, and obligations of the Parties under this Agreement are, in all respects, several and not joint.

 

10.17.     Relationship Among Parties .  None of the Supporting Creditors shall have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities to each other, any Supporting Creditor, any Company Party, or any of the Company Party’s respective creditors or other stakeholders, and there are no commitments among or between the Supporting Creditors, in each case except as expressly set forth in this Agreement.  It is understood and agreed that any Supporting Creditor may trade in any debt or equity securities of any Company Parties without the consent of the Company or any Supporting Creditor, subject to Section 4.03 of this Agreement and applicable securities laws.  No prior history, pattern or practice of sharing confidence among or between any of the Supporting Creditors, and/or the Company Parties shall in any way affect or negate this understanding and agreement.  The Parties have no agreement, arrangement or understanding with respect to acting together for the purpose of acquiring, holding, voting or disposing of any securities of any of the Company Parties and do not constitute a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 or Rule 13d-5 promulgated thereunder.  For the avoidance of doubt: (1) each Supporting Creditor is entering into this Agreement directly with the Company and not with any other Supporting Creditor, (2) no other Supporting Creditor shall have any right to bring any action against any other Supporting Creditor with respect this Agreement (or any breach thereof) and (3) no Supporting Creditor shall, nor shall any action taken by a Supporting Creditor pursuant to this Agreement, be deemed to be acting in concert or as any group with any other Supporting Creditor with respect to the obligations under this Agreement nor shall this Agreement create a presumption that the Supporting Creditors are in any way acting as a group.   All rights under this Agreement are separately granted to each Supporting Creditor by the Company and vice versa, and the use of a single document is for the convenience of the Company. The decision to commit to enter into the transactions contemplated by this Agreement has been made independently.  Nothing in this Agreement shall in any way prohibit or limit the right and ability of any Supporting Creditor to (a) be granted a lien or other interest in the Company’s rights under this Agreement, (b) be assigned such rights by the Company for purposes or enforcement against any Supporting Creditor, or (c) seek standing to bring an action derivatively or on behalf of the Debtors in the Chapter 11 Cases, under the Plan or otherwise.

 

10.18.     Severability . If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect if essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable.

 

10.19.     Specific Performance/Remedies . It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief (including attorney’s fees and costs) as a remedy for any such breach, in addition to any other remedy to which such non-breaching Party may be entitled, at law or equity, without the necessity of proving the inadequacy of money damages as a remedy, including an order of the Chosen Court or the Bankruptcy Court requiring any Party to comply promptly with any of its obligations hereunder.  Each Party agrees to waive any requirement for the securing or posting of a bond in connection with such remedy.

 

10.20.     Remedies Cumulative . All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party.

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written.

 

[Signature Page to Restructuring Support Agreement]

 

 

[Signature Page to Restructuring Support Agreement]

GSO ENERGY SELECT OPPORTUNITIES FUND LP

By: GSO Energy Select Opportunities Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

 

GSO ENERGY PARTNERS-A LP

By: GSO Energy Partners-A Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO ENERGY PARTNERS-B LP

By: GSO Energy Partners-B Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email:  robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO ENERGY PARTNERS-C LP

By: GSO Energy Partners-C Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO ENERGY PARTNERS-C II LP

By: GSO Energy Partners-C Associates II LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO ENERGY PARTNERS-D LP

GSO Energy Partners-D Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO PALMETTO OPPORTUNISTIC INVESTMENT PARTNERS LP

By: GSO Palmetto Opportunistic Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO CSF III HOLDCO LP

By: GSO Capital Solutions Associates III LP, its general partner

By: GSO Capital Solutions Associates III (Delaware) LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO AIGUILLE DES GRAND MONTETS FUND I LP

By: GSO Aiguille des Grand Montets Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

GSO AIGUILLE DES GRAND MONTETS FUND II LP

By: GSO Aiguille des Grand Montets Associates LLC, its general partner

Principal Amount of Term Loan Claims as of the date hereof:

Principal Amount of Notes Claims as of the date hereof:

Address for Notice:

GSO Capital Partners LP

345 Park Avenue

New York, NY 10154

Attention: Robert Horn, GSO Legal and GSO Asset Servicing

Email: robert.horn@gsocap.com; GSOLegal@gsocap.com; GSOAssetServicing@blackstone.com

[Signature Page to Restructuring Support Agreement]

WELLS FARGO BANK, N.A.

Address for Notice:

1000 Louisiana Street

9 ^th Floor

Houston, TX 77002

Attention: Brett Steele

Facsimile: 713-319-1925

[Signature Page to Restructuring Support Agreement]

 

AG ENERGY FUNDING, LLC

Address for Notice:

245 Park Ave, 26 ^th Floor

New York, NY 10167

Attention: Scott McMurtry

Facsimile: 713-999-4321

[Signature Page to Restructuring Support Agreement]

 

Bank of America, N.A. (“Lender”), soley in respect of its GBAM Special Assets Group (SAG) and not any other desk, unit, group, division, or affiliate of Lender as a Supporting RBL Lender

Address for Notice:

50 Rockefeller Plaza

NY1-050-10-02

NY, NY 2002-1605

Attention: Kevin M. Behan

Facsimile: 704-602-3609

[Signature Page to Restructuring Support Agreement]

BBVA USA fka Compass Bank

Address for Notice:

BBVA USA

2200 Post Oak Blvd., 21 ^st Floor

Houston, TX 77056

Attention: Rachel Festervand

Rachel.Festervand@bbva.com

Facsimile:

 

[Signature Page to Restructuring Support Agreement]

 

BMO Harris Financing, Inc.

Address for Notice:

700 Louisiana St. Suite 2100

Houston, TX 77002

Attention: Melissa Guzmann

Facsimile: 713-223-4007

[Signature Page to Restructuring Support Agreement]

 

JPMORGAN CHASE BANK, N.A. (“JPMC”), solely in respect of its Commercial Banking Corporate Client Banking & Specialized Industries business unit (“CCBSI”) and not any other unit, group, division or affiliate of JPMC and solely in respect of CCBSI’s Debtor Claims/Interests set forth in this Supporting Creditor Signature Block. Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall not apply to JPMC other than with respect to the Debtor Claims/Interests held by CCBSI set forth in this Supporting Creditor Signature Block.*

Address for Notice:

10 S. Dearborn

Floor L2, Suite 0010

Chicago, IL 60603

Attention: Ana Salas

Facsimile: (844) 235-1789

With a copy to:

10 S. Dearborn

Floor L2, Suite 0010

Chicago, IL 60603

Attention: Gerri King

Facsimile: (312) 325-3190.

*            Notwithstanding anything to the contrary in this Agreement, Debtor Claims/Interests, other claims, equity interests, actions or activities of JPMorgan Chase Bank, N.A., as a Supporting Creditor subject to this Agreement, shall not include any Debtor Claims/Interests, other claims, equity interests, actions or activities held or performed in a fiduciary capacity or held, acquired or performed by any other division, business unit or trading desk of JPMorgan Chase Bank, N.A. (other than the division, business unit or trading desk expressly identified in this signature page), unless and until such division, business unit or trading desk is or becomes a party to this Agreement.

 

[Signature Page to Restructuring Support Agreement]

 

Royal Bank of Canada

Address for Notice:

Royal Bank of Canada

200 Vesey Street, 12 ^th Floor

New York, New York

10281

Attention: Leslie P. Vowell

Facsimile: 212 428-2319

 

[Signature Page to Restructuring Support Agreement]

 

DOUBLELINE INCOME SOLUTIONS FUND