Proposed Restructuring. (a) The Parties have agreed to implement a restructuring transaction for the Company, in accordance with and subject to the terms and conditions set forth in this Agreement (the “Restructuring”), which Restructuring requires pursuing consummation of a “pre- negotiated” chapter 11 plan of reorganization in the form attached as Exhibit B hereto (together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Plan”) 1. In order to effectuate the Restructuring, the Company shall commence, in accordance with the terms of this Agreement, voluntary “pre-negotiated” cases (the “Chapter 11 Cases” and the date on which such Chapter 11 Cases are commenced, the “Petition Date”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The documents related to or otherwise utilized to implement or effectuate the Restructuring (collectively, the “Restructuring Documents”) shall include, among others: (i) the Plan, a customary plan supplement (including any schedules of assumed and rejected leases and executory contracts), the related disclosure statement (such disclosure statement, together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise 1 In the event of any inconsistency between the Plan and the remainder of this Agreement, the Plan shall control. 112767832 modified from time to time in accordance with the terms herein and therein, the “Disclosure Statement”), and any other documents and/or agreements relating to the Plan and/or the Disclosure Statement, including (A) a motion seeking approval of the Disclosure Statement, the procedures for the solicitation of votes in connection with the Plan pursuant to sections 1125 and 1126 of the Bankruptcy Code, the forms of ballots and notices and related relief (such motion, together with all exhibits, appendices, supplements, and related documents, the “Disclosure Statement Motion”), (B) an order of the Bankruptcy Court approving the Disclosure Statement Motion (together with all exhibits, appendices, supplements and related documents, the “Disclosure Statement Order”), (C) the motion seeking confirmation of the Plan, and (D) a proposed order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code (together with all exhibits, appendices, supplements and related documents, the “Confirmation Order”); (ii) any organizational and governance documents for the reorganized Company, including without limitation, certificates of incorporation, certificates of formation or certificates of limited partnership (or equivalent organizational documents), bylaws, limited liability company agreements, identity of proposed members of the reorganized Company’s board of directors, shareholders agreements and registration rights agreements, which documents shall in any event include the terms set forth in the corporate governance term sheet attached as Exhibit C hereto (collectively, the “Governance Documents”); (iii) the agreements governing the newly issued warrants of the reorganized Company on the terms set forth in the term sheets attached as Exhibit D hereto; (iv) a 3-year business plan for the Company (the “Business Plan”); (v) all such other definitive documentation relating to a recapitalization or restructuring of the Company as is necessary or desirable to consummate the Restructuring (including, without limitation, all documentation related to the Reorganized First Lien Term Loan Facility (as defined in the Plan), any exit financing or new credit facility); (vi) any documentation relating to a debtor-in-possession financing facility (the “DIP Financing”), including a motion seeking approval of a debtor-in-possession financing facility and consensual use of cash collateral and providing adequate protection to the First Lien Lenders consisting of, among other things, (A) adequate protection liens, superpriority administrative claims and payment of reasonable and documented fees and expenses of the First Lien Lenders and the First Lien Agent (and its counsel) and (B) payment of reasonable and documented fees and expenses of the Second Lien Agent (and its counsel) under the Second Lien Credit Agreement, and the interim order (the “Interim DIP Order”) and the final order (the “Final DIP Order” and together with the Interim DIP Order, the “DIP Orders”) approving such motion; and (vii) any other agreements, instruments, pleadings, orders and/or documents that are filed by debtors and debtors in possession in the Chapter 11 Cases (including any exhibits, amendments, modifications or supplements made from time to time thereto). (b) Each of the Restructuring Documents shall be consistent in all respects with, and shall contain, to the extent applicable, the terms and conditions set forth in this Agreement (including the standards for acceptability to specified parties of the final form of certain Restructuring Documents). In addition: (i) the Plan, the Confirmation Order, the documentation concerning the DIP Financing, including the DIP Orders and the documentation related to the Reorganized First Lien Term Loan Facility, in each case shall be in form and substance acceptable to the Company and Holder Parties holding at least 50.1% of the aggregate First Lien Claims held by the Holder Parties as of a relevant date (the “Majority Holders”); (ii) the Governance Documents shall be acceptable to, and need be acceptable only to, the Majority Holders; (iii) the definitive documentation concerning a $60 million senior secured asset-based revolving credit facility (the “Exit Facility”) shall be on the terms set forth in the commitment letter, and related term sheet, attached as Exhibit E hereto, and shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the Company; (iv) the definitive documentation concerning the Class B Warrants and Class C Warrants, including the applicable warrant agreement, shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the Sponsor; and (v) the other Restructuring Documents shall otherwise be in form and substance reasonably acceptable to the Company and the Majority Holders.
Appears in 2 contracts
Sources: Restructuring Support Agreement, Restructuring Support Agreement
Proposed Restructuring. (a) The Parties have agreed to implement a restructuring transaction for principal terms of the Company, in accordance with and subject to the terms and conditions Restructuring are set forth in this Agreement (the “Restructuring”), which Restructuring requires pursuing consummation of a “pre- negotiated” chapter 11 plan of reorganization term sheet and its annexes in the form attached hereto as Exhibit B hereto A (together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Plan”)
1. In order to effectuate the Restructuring, the Company shall commence, in accordance with the terms which term sheet is expressly incorporated by reference herein and made a part of this Agreement, voluntary “pre-negotiated” cases (the “Chapter 11 Cases” and the date on which such Chapter 11 Cases are commenced, the “Petition Date”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The documents related to or otherwise utilized to implement or effectuate the Restructuring (collectivelyAgreement as if fully set forth herein, the “Restructuring DocumentsTerm Sheet”).
(b) shall includeThe Company intends to implement the Restructuring on a consensual basis in the Transaction, which will, consistent with the Restructuring Term Sheet, provide for, among othersother things:
(i) the Plan, a customary plan supplement an exchange offer (including any schedules of assumed and rejected leases and executory contracts), the related disclosure statement (such disclosure statement, together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise 1 In the event of any inconsistency between the Plan and the remainder of this Agreement, the Plan shall control. 112767832 modified from time to time in accordance with the terms herein and therein, the “Disclosure StatementExchange Offer”), and any other documents and/or agreements relating in which the Company intends to the Plan and/or the Disclosure Statement, including exchange for a combination of (A) a motion seeking approval shares of new preferred stock of YRCW (the “Series B Convertible Preferred Stock”), which Series B Convertible Preferred Stock shall, immediately following consummation of the Disclosure StatementMerger, automatically convert into shares of common stock of YRCW, par value $0.01 per share (the procedures for the solicitation of votes in connection with the Plan pursuant “Common Stock”), equal to sections 1125 and 1126 72.5% of the Bankruptcy CodeCommon Stock outstanding immediately following consummation of the Merger, subject to dilution on account of the forms of ballots Management Incentive Plan (as defined in the Restructuring Term Sheet) and notices and related relief the Convertible Secured Notes (such motion, together with all exhibits, appendices, supplements, and related documents, the “Disclosure Statement Motion”as defined below), (B) newly issued 10% Series A Convertible Senior Secured Notes due 2015 (the “Series A Notes”) in the aggregate principal amount of $140.0 million under an order of indenture substantially in the Bankruptcy Court approving form attached hereto as Exhibit B (including the Disclosure Statement Motion (together with all exhibitsannexes, appendices, supplements schedules and related documentsexhibits thereto, the “Disclosure Statement OrderSeries A Indenture”), (C) the motion seeking confirmation of the Plan, and (D) a proposed order of the Bankruptcy Court confirming the Plan pursuant right to section 1129 of the Bankruptcy Code (together with all exhibits, appendices, supplements and related documents, the “Confirmation Order”);
(ii) any organizational and governance documents subscribe to purchase for the reorganized Company, including without limitation, certificates of incorporation, certificates of formation or certificates of limited partnership (or equivalent organizational documents), bylaws, limited liability company agreements, identity of proposed members of the reorganized Company’s board of directors, shareholders agreements and registration rights agreements, which documents shall in any event include the terms set forth in the corporate governance term sheet attached as Exhibit C hereto (collectively, the “Governance Documents”);
(iii) the agreements governing the cash newly issued warrants of the reorganized Company on the terms set forth in the term sheets attached as Exhibit D hereto;
(iv) a 3-year business plan for the Company 10% Series B Convertible Senior Secured Notes due 2015 (the “Business Plan”);
(v) all such other definitive documentation relating to a recapitalization or restructuring of the Company as is necessary or desirable to consummate the Restructuring (including, without limitation, all documentation related to the Reorganized First Lien Term Loan Facility (as defined in the Plan), any exit financing or new credit facility);
(vi) any documentation relating to a debtor-in-possession financing facility (the “DIP Financing”), including a motion seeking approval of a debtor-in-possession financing facility and consensual use of cash collateral and providing adequate protection to the First Lien Lenders consisting of, among other things, (A) adequate protection liens, superpriority administrative claims and payment of reasonable and documented fees and expenses of the First Lien Lenders and the First Lien Agent (and its counsel) and (B) payment of reasonable and documented fees and expenses of the Second Lien Agent (and its counsel) under the Second Lien Credit Agreement, and the interim order (the “Interim DIP Order”) and the final order (the “Final DIP OrderSeries B Notes” and together with the Interim DIP OrderSeries A Notes, the “DIP OrdersConvertible Secured Notes”) approving such motionin the aggregate principal amount of $100.0 million under an indenture substantially in the form attached hereto as Exhibit C (including the annexes, schedules and exhibits thereto, the “Series B Indenture”) and (D) term loans under the New Credit Agreement (as defined below) in an aggregate initial principal amount of the Non-LC Credit Agreement Claims (as defined below) minus $305 million (the “New Term Loan Amount”):
(1) Claims with respect to the aggregate LC Exposure as of the date the Restructuring is consummated (which LC Exposure estimated as of June 30, 2011 is approximately $483 million) (the “LC Claims”)1;
(2) Claims with respect to the outstanding principal amount of the Term Loans as of the date the Restructuring is consummated (the aggregate outstanding principal amount of the Term Loans estimated as of June 30, 2011 is approximately $247 million) (the “Term Loan Claims”)2;
(3) Claims with respect to the outstanding principal amount of the Revolving Loans (including any Swingline Loans) as of the date the Restructuring is consummated (the aggregate outstanding principal amount of the Revolving Loans estimated as of June 30, 2011 is approximately $134 million) (the “Revolving Credit Claims” and together with the Term Loan Claims and the 1 The claim amounts for the Credit Agreement Claims set forth above assume cash pay downs prior to June 30, 2011 resulting from asset sales projected by the Company to occur prior to June 30, 2011. The claim amounts set forth above will change depending on the actual pay downs that occur. 2 See footnote 1. Deferred Interest and Fee Claims (as defined below), the “Non-LC Credit Agreement Claims”)3; and
(vii4) any other agreements, instruments, pleadings, orders and/or documents that are filed by debtors Claims with respect to all deferred interest and debtors in possession in the Chapter 11 Cases fees (including any exhibitscommitment fees and participation fees in respect of LC Exposure), amendments, modifications or supplements made from time to time thereto).
(b) Each accrued and unpaid under the Existing Credit Agreement as of the date the Restructuring Documents shall be consistent in all respects with, and shall contain, to the extent applicable, the terms and conditions set forth in this Agreement is consummated (including the standards for acceptability to specified parties of the final form of certain Restructuring Documents). In addition:
(i) the Plan, the Confirmation Order, the documentation concerning the DIP Financing, including the DIP Orders and the documentation related to the Reorganized First Lien Term Loan Facility, in each case shall be in form and substance acceptable to the Company and Holder Parties holding at least 50.1% of the aggregate First Lien Claims held by the Holder Parties outstanding amount of such deferred interest and fees estimated as of a relevant date June 30, 2011 is approximately $166 million) (the “Majority Holders”);
(ii) Deferred Interest and Fees Claims” and together with the Governance Documents shall be acceptable to, and need be acceptable only toLC Claims, the Majority Holders;
(iii) Term Loan Claims and the definitive documentation concerning a $60 million senior secured asset-based revolving credit facility (Revolving Credit Claims, the “Exit Facility”) shall be on the terms set forth in the commitment letter, and related term sheet, attached as Exhibit E hereto, and shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the CompanyCredit Agreement Claims”)4;
(iv) the definitive documentation concerning the Class B Warrants and Class C Warrants, including the applicable warrant agreement, shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the Sponsor; and
(v) the other Restructuring Documents shall otherwise be in form and substance reasonably acceptable to the Company and the Majority Holders.
Appears in 1 contract
Proposed Restructuring. (a) The Parties have agreed to implement a restructuring transaction for the Company, in accordance with and subject to the terms and conditions set forth in this Agreement (the “Restructuring”), which Restructuring requires pursuing consummation of a “pre- negotiated” chapter 11 plan of reorganization in the form attached as Exhibit B hereto (together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Plan”)
1. In order to effectuate the RestructuringChapter 11 Cases, the Company Parties shall commence, solicit (i) the Term Lenders prior to the Petition Date (as defined in accordance with Section 3.1(e)(ii)(A)) for their approval of the terms of this Agreement, voluntary “pre-negotiated” cases Plan and (ii) the “Chapter 11 Cases” TRA Claimants (as defined in the Restructuring Term Sheet) and the date on which such Chapter 11 Cases are commenced, Existing Partnership Equityholders (as defined in the “Petition Date”Restructuring Term Sheet) under chapter 11 of title 11 for their approval of the United States Code Plan and their election of the form of Partnership Consideration (the “Bankruptcy Code”) as defined in the United States Bankruptcy Court for Restructuring Term Sheet).
(b) The Plan and the District of Delaware (related documents which shall be consistent in all material respects with this Support Agreement and shall be in form and substance reasonably acceptable to the “Bankruptcy Court”). The documents related to or Company Parties and the Required Consenting Lenders, unless otherwise utilized to implement or effectuate the Restructuring indicated (collectively, the “Restructuring Plan Documents”) ), and which shall include, among others:
without limitation, (i) the Plan, a customary plan supplement (including any schedules of assumed and rejected leases and executory contracts), ii) the related disclosure statement (such disclosure statement, together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise 1 In the event of any inconsistency between the Plan and the remainder of this Agreement, the Plan shall control. 112767832 modified from time to time in accordance with the terms herein and therein, the “Disclosure Statement”), (iii) agreements evidencing the New RCF, including, without limitation, the New RCF Credit Agreement, the New RCF Commitment Letter, which New RCF Commitment Letter shall be in form and substance reasonably acceptable to the Company Parties, the New RCF Commitment Party and the Required Consenting Lenders, and any security documents or other documentation with respect to the New RCF Credit Agreement, (iv) the organizational documents and/or and all other governing documents and agreements relating of the reorganized Company
(1) a motion (the “Scheduling Motion”) seeking approval of and a proposed order setting the schedule for the hearing to approve the Disclosure Statement and confirm the Plan, (2) a proposed solicitation order approving the solicitation materials and procedures with respect to the Plan and/or and the Disclosure Statement, including Statement and (A3) a motion seeking approval of the Disclosure Statement, the procedures for the solicitation of votes in connection with proposed confirmation order approving the Plan pursuant to sections 1125 and 1126 of the Bankruptcy Code, the forms of ballots and notices and related relief (such motion, together with all exhibits, appendices, supplements, and related documents, the “Disclosure Statement MotionConfirmation Order”), (B) an order of any appendices, amendments, modifications, supplements, exhibits and schedules relating to the Bankruptcy Court approving Plan or the Disclosure Statement Motion (together with all exhibitsStatement, appendices, supplements and related documents, the “Disclosure Statement Order”), (C) the motion seeking confirmation of the Plan, in form and (D) a proposed order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code (together with all exhibits, appendices, supplements and related documents, the “Confirmation Order”);
(ii) any organizational and governance documents for the reorganized Company, including without limitation, certificates of incorporation, certificates of formation or certificates of limited partnership (or equivalent organizational documents), bylaws, limited liability company agreements, identity of proposed members of the reorganized Company’s board of directors, shareholders agreements and registration rights agreements, which documents shall in any event include the terms set forth in the corporate governance term sheet attached as Exhibit C hereto (collectively, the “Governance Documents”);
(iii) the agreements governing the newly issued warrants of the reorganized Company on the terms set forth in the term sheets attached as Exhibit D hereto;
(iv) a 3-year business plan for the Company (the “Business Plan”);
(v) all such other definitive documentation relating to a recapitalization or restructuring of the Company as is necessary or desirable to consummate the Restructuring (including, without limitation, all documentation related substance acceptable to the Reorganized First Lien Term Loan Facility (as defined in the Plan)Required Consenting Lenders, any exit financing or new credit facility);
(vi) any documentation relating to a debtor-in-possession financing facility (the “DIP Financing”), including a motion seeking approval of a debtor-in-possession financing facility and consensual use of cash collateral and providing adequate protection to the First Lien Term Lenders consisting of(the interim order approving such motion and providing for, among other things, (A) a requirement for the Company Parties to prepare and provide to the Consenting Lenders during the pendency of the Chapter 11 Cases once every two weeks or more frequently as updated during the Chapter 11 Cases, a rolling 13-week cash flow forecast in form and substance reasonably acceptable to the Required Consenting Lenders, as well as adequate protection including but not limited to adequate protection liens, superpriority administrative claims and payment of reasonable and documented fees and expenses of the First Lien Term Lenders and the First Lien Agent (and its counsel) and (B) payment of reasonable and documented fees and expenses of the Second Lien Agent (and its counsel) under the Second Lien Credit AgreementTL Agent, and the interim order (the “Interim DIP Cash Collateral Order”) , and the final order providing for the same, the “Final Cash Collateral Order”).
(c) Upon receipt of votes in favor of the Plan from the Term Lenders sufficient to satisfy the requirements of section 1126(c) of the Bankruptcy Code (the “Final DIP Order” and together Plan Approval”), the Company Parties will effectuate the Restructuring by commencing, in accordance with the Interim DIP Orderterms of this Support Agreement and the Plan, the “DIP Orders”) approving such motion; andChapter 11 Cases.
(viid) any other agreements, instruments, pleadings, orders and/or documents that are filed by debtors and debtors in possession The Plan shall constitute a separate plan of reorganization for each of the Company Parties in the Chapter 11 Cases Cases. If the Plan cannot be confirmed as to some or all of the Company Parties, then the Company Parties, with the consent of the Required Consenting Lenders, may (including a) revoke the Plan as to all of the Company Parties or (b) revoke the Plan as to any exhibitssuch Company Party (and any such Company Party’s Chapter 11 Case may be converted, amendments, modifications continued or supplements made from time dismissed) and confirm the Plan as to time thereto)such remaining Company Parties without the need for re-solicitation as to any Party holding a claim against or equity interest in such Company Parties for which the Plan is not so revoked.
(be) Each The obligations of the Restructuring Documents Parties to consummate the Plan shall be consistent in all respects with, and shall contain, to conditioned upon the extent applicable, occurrence of the terms and following events (together with any conditions set forth in this Agreement (including the standards for acceptability to specified parties Plan and/or Confirmation Order), which conditions may be waived by mutual agreement of the final form of certain Restructuring Documents). In additionCompany Parties, the Required Consenting Lenders, and, solely with respect to any such conditions that relates to the New RCF Commitment Letter and the New RCF Credit Agreement, the New RCF Commitment Party, in each case in their reasonable discretion:
(i) (A) all conditions precedent to effectiveness of each of the Plan Documents (including, without limitation, to the New RCF Credit Agreement) shall have been satisfied substantially contemporaneously with or prior to consummation of the Plan, (B) an order authorizing entry into and performance under the New RCF Commitment Letter (which order may be the Confirmation Order) shall have been entered by the Bankruptcy Court and shall have become a final order that is not stayed, which condition may be waived by mutual agreement of the Company Parties and the New RCF Commitment Party, (C) the New RCF Credit Agreement shall have been duly executed and delivered by each party thereto, (D) all other orders, including the Confirmation Order, included in the documentation concerning Plan Documents shall have been entered by the DIP Financing, including Bankruptcy Court and shall have become a final order that is not stayed and (E) each of the DIP Orders and Plan Documents that by its terms is to be effective substantially contemporaneously with or prior to consummation of the documentation related to the Reorganized First Lien Term Loan Facility, in each case Plan shall be in form full force and substance acceptable to the Company and Holder Parties holding at least 50.1% of the aggregate First Lien Claims held by the Holder Parties as of a relevant date (the “Majority Holders”);effect; and
(ii) the Governance Documents this Support Agreement shall be acceptable to, and need be acceptable only to, the Majority Holders;
(iii) the definitive documentation concerning a $60 million senior secured asset-based revolving credit facility (the “Exit Facility”) shall be on the terms set forth in the commitment letter, and related term sheet, attached as Exhibit E hereto, and shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the Company;
(iv) the definitive documentation concerning the Class B Warrants and Class C Warrants, including the applicable warrant agreement, shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the Sponsor; and
(v) the other Restructuring Documents shall otherwise be in form and substance reasonably acceptable to the Company and the Majority Holdersnot have been terminated.
Appears in 1 contract
Sources: Restructuring Support Agreement (J.G. Wentworth Co)
Proposed Restructuring. The principal terms of the Restructuring are set forth on the term sheet attached hereto as Exhibit 1 (as such term sheet may be modified in accordance with Section 10 hereof, the “Plan Term Sheet”)). The Restructuring will be implemented pursuant to various agreements and related documentation, including, without limitation, (i) the Plan, which Plan shall be consistent in all material respects with the Plan Term Sheet and this Agreement; and (ii) the following related documents required to implement the Restructuring that will be executed, filed with the Bankruptcy Court, become effective, or otherwise finalized (the “Plan Documents”): (a) The Parties have agreed the disclosure statement related to implement a restructuring transaction the Plan (the “Disclosure Statement”), (b) the materials related to the solicitation of votes to accept or reject the Plan (the “Solicitation Materials”), (c) the motion to approve the Disclosure Statement and the Solicitation Materials, and the order entered by the Bankruptcy Court approving the Disclosure Statement and the Solicitation Materials, (d) definitive documentation for the CompanyRights Offering and all agreements and documentation related or ancillary thereto, which definitive documentation shall be consistent in accordance all material respects with and subject to the terms and conditions set forth in this Agreement the Plan Term Sheet; (the “Restructuring”), which Restructuring requires pursuing consummation of a “pre- negotiated” chapter 11 plan of reorganization in the form attached as Exhibit B hereto (together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Plan”)
1. In order to effectuate the Restructuring, the Company shall commence, in accordance with the terms of this Agreement, voluntary “pre-negotiated” cases (the “Chapter 11 Cases” and the date on which such Chapter 11 Cases are commenced, the “Petition Date”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The documents related to or otherwise utilized to implement or effectuate the Restructuring (collectively, the “Restructuring Documents”) shall include, among others:
(ie) the Plan, a customary plan supplement (including any schedules of assumed and rejected leases and executory contracts), the related disclosure statement (such disclosure statement, together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise 1 In the event of any inconsistency between the Plan and the remainder of this Agreement, the Plan shall control. 112767832 modified from time to time in accordance with the terms herein and therein, the “Disclosure Statement”), and any other documents and/or agreements relating to the Plan and/or the Disclosure Statement, including (Aorder(s) a motion seeking approval of the Disclosure Statement, the procedures for the solicitation of votes in connection with the Plan pursuant to sections 1125 and 1126 of the Bankruptcy Code, the forms of ballots and notices and related relief (such motion, together with all exhibits, appendices, supplements, and related documents, the “Disclosure Statement Motion”), (B) an order of entered by the Bankruptcy Court approving the Disclosure Statement Motion Rights Offering and procedures related thereto and any backstop commitment agreement (together with all exhibits, appendices, supplements and related documents, the “Disclosure Statement OrderBackstop Commitment Agreement”)) in connection with the Rights Offering, (Cf) the motion seeking confirmation of the Plan, and (D) a proposed order of entered by the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code (together with Plan, including all exhibits, appendices, supplements appendices and related documents, documents (the “Confirmation Order”) and any pleadings in support of entry of the Confirmation Order, (g) any material appendices, amendments, modifications, supplements, exhibits and schedules relating to the Plan or the Plan Documents, including any Plan supplement, (h) any term sheet and/or commitment letter for any proposed exit financing facility, including the New NII Debt; (i) any operative documents for any proposed exit financing facility, including without limitation the New NII Debt; (j) any documents disclosing the identity of the members of the board of directors of any of the Reorganized Debtors and the nature of and compensation for any “insider” under the Bankruptcy Code who is proposed to be employed or retained by any of the Reorganized Debtors; (k) any list of material executory contracts and unexpired leases to be assumed, assumed and assigned, or rejected; (l) a list of any material retained causes of action; (m) the certificate of incorporation and bylaws for each of the Reorganized Debtors; (n) the registration rights agreement (the “Registration Rights Agreement”);
; and (o) any amendments, restatements, modifications or refinancing of (i) the Credit Agreement, dated as of April 20, 2012, among Nextel Telecomunicações Ltda. (“Nextel Brazil”), as Borrower, the Guarantors party thereto, and China Development Bank Corporation as Lender, Administrative Agent and Arranger, which credit facility benefits from the commercial and political risk insurance coverage provided by China Export and Credit Insurance Corporation (as amended, restated, supplemented, modified and/or refinanced from time to time the “Brazil Sinosure Credit Agreement”); (ii) any organizational the Credit Agreement, dated as of April 20, 2012, among Nextel Brazil, as Borrower, the Guarantors party thereto, and governance documents for China Development Bank Corporation as Lender, Administrative Agent and Arranger (as amended, restated, supplemented, modified and/or refinanced from time to time the reorganized Company“Brazil Non-Sinosure Credit Agreement” and, including without limitation, certificates of incorporation, certificates of formation or certificates of limited partnership (or equivalent organizational documents), bylaws, limited liability company agreements, identity of proposed members of together with the reorganized Company’s board of directors, shareholders agreements and registration rights agreements, which documents shall in any event include the terms set forth in the corporate governance term sheet attached as Exhibit C hereto (collectivelyBrazil Sinosure Credit Agreement, the “Governance DocumentsBrazil Credit Agreements”);
; (iii) the agreements governing Credit Agreement, dated as of July 12, 2011, among Comunicaciones Nextel de México (“Nextel Mexico”), as Borrower, the newly issued warrants of Guarantors party thereto, and China Development Bank Corporation as Lender, Administrative Agent and Arranger, which credit facility benefits from the reorganized Company on commercial and political risk insurance coverage provided by China Export and Credit Insurance Corporation (as amended, restated, supplemented, modified and/or refinanced from time to time the terms set forth in the term sheets attached as Exhibit D hereto;
“Mexico Sinosure Credit Agreement”); (iv) a 3the Credit Agreement, dated as of July 12, 2011, among Nextel Mexico, as Borrower, the Guarantors party thereto, and China Development Bank Corporation as Lender, Administrative Agent and Arranger (as amended, restated, supplemented, modified and/or refinanced from time to time the “Mexico Non-year business plan for Sinosure Credit Agreement” and, together with the Company Mexico Sinosure Credit Agreement, the “Mexico Credit Agreements” and, together with the Brazil Credit Agreements, the “CDB Agreements”); (v) the Bank Credit ▇▇▇▇ dated October 31, 2012 between Nextel Brazil and Banco do Brasil S.A. (the “Business PlanBdB Note”);
(v) all such other definitive documentation relating to a recapitalization or restructuring of the Company as is necessary or desirable to consummate the Restructuring (including, without limitation, all documentation related to the Reorganized First Lien Term Loan Facility (as defined in the Plan), any exit financing or new credit facility);
; and (vi) any documentation relating to a debtor-in-possession financing facility the Bank Credit Certificate dated December 8, 2011 among Nextel Brazil, Nextel Telecomunicações S.A. and Caixa Econômica Federal (the “DIP Financing”)Caixa Note” and, including a motion seeking approval of a debtor-in-possession financing facility and consensual use of cash collateral and providing adequate protection to the First Lien Lenders consisting of, among other things, (A) adequate protection liens, superpriority administrative claims and payment of reasonable and documented fees and expenses of the First Lien Lenders and the First Lien Agent (and its counsel) and (B) payment of reasonable and documented fees and expenses of the Second Lien Agent (and its counsel) under the Second Lien Credit Agreement, and the interim order (the “Interim DIP Order”) and the final order (the “Final DIP Order” and together with the Interim DIP OrderCDB Agreements and the BdB Note, the “DIP OrdersLocal Credit Agreements”) approving such motion; and
(vii) ). The Plan, the Plan Documents, any other agreementsancillary documents required to implement the Restructuring, instruments, pleadings, orders and/or documents that are filed by debtors and debtors in possession in the Chapter 11 Cases (including any exhibits, amendments, modifications or supplements made from time to time thereto).
(b) Each of the Restructuring Plan, Plan Documents and any such ancillary documents shall be consistent in all material respects withwith the Plan Term Sheet and, and shall contain, to the extent applicable, the terms and conditions set forth in this Agreement (including the standards for acceptability to specified parties upon completion of the final form of certain Restructuring Documents). In addition:
exhibits thereto, shall (i) the Plan, the Confirmation Order, the documentation concerning the DIP Financing, including the DIP Orders and the documentation related to the Reorganized First Lien Term Loan Facility, in each case shall be in form and substance acceptable to the Company and Holder Parties holding at least 50.1% of the aggregate First Lien Claims held by the Holder Parties as of a relevant date (the “Majority Holders”);
(ii) the Governance Documents shall be acceptable to, and need be acceptable only to, the Majority Holders;
(iii) the definitive documentation concerning a $60 million senior secured asset-based revolving credit facility (the “Exit Facility”) shall be on the terms set forth in the commitment letter, and related term sheet, attached as Exhibit E hereto, and shall otherwise be in form and substance reasonably acceptable to the Majority Holders Plan Proponents and each of the Requisite Consenting Noteholders and (ii) only in the case of AMT, not materially adversely affect the economic treatment of AMT’s Claims as agreed between AMT and the Company;
Debtors (iv) the definitive documentation concerning “AMT Claims Treatment”); provided, however, that any documents with respect to the Class B Warrants Rights Offering, including, without limitation, the Backstop Commitment Agreement and Class C Warrantsthe Registration Rights Agreement shall, including in each case, be filed contemporaneously with the applicable warrant agreement, shall otherwise Plan and be in form and substance reasonably acceptable to each of the Majority Holders Requisite Consenting Noteholders in their sole discretion; provided, further, that the (i) foregoing consent rights of the Requisite Consenting Noteholders with respect to any amendments, restatements, modifications or refinancing of the CDB Agreements (the “CDB Amendments”) shall expire as of December 18, 2014 (except for any amendments, restatements, modifications or refinancing of the CDB Agreements that are proposed from and the Sponsor; and
after December 18, 2014 (v) the other Restructuring Documents “Subsequent CDB Amendments”), which Subsequent CDB Amendments shall otherwise be in form and substance reasonably acceptable to the Company and each of the Majority HoldersRequisite Consenting Noteholders), it being understood that the CDB Amendments shall be deemed reasonably acceptable to the Requisite Consenting Noteholders in the absence of the delivery to the Company of any written objection thereto by any of the Requisite Consenting Noteholders on or before December 17, 2014, and (ii) notwithstanding the foregoing, the rights of the Committee with respect to the CDB Amendments and any amendments, restatements, modifications or refinancings of the BdB Note and the Caixa Note shall be limited to a right to consult with Company in connection therewith. Nothing contained in this section shall affect, in any way, the requirements set forth herein for the amendment of this Agreement and the Plan Term Sheet set forth in Section 10 hereof.
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Proposed Restructuring. The principal terms of the Restructuring are set forth on the term sheet and its annexes attached hereto as Exhibit 1 (which term sheet is expressly incorporated by reference herein and made a part of this Agreement as if fully set forth herein (as such term sheet may be modified in accordance with Section 9 hereof, the “Restructuring Term Sheet”)). Such Restructuring will be implemented pursuant to various agreements and related documentation, including: (a) The Parties have agreed the Plan, which Plan shall contain the terms and conditions set forth in, and be consistent in all respects with, the Restructuring Term Sheet, and shall be consistent in all respects with this Agreement; and (b) the following related documents required to implement the Restructuring that have been executed, filed with the Bankruptcy Court, become effective, or otherwise been finalized (the “Plan Related Documents”), which shall be limited to (i) a restructuring transaction disclosure statement (the “Disclosure Statement”), (ii) the materials related to the solicitation of votes for the CompanyRestructuring pursuant to the Bankruptcy Code (the “Solicitation”), in accordance (iii) definitive documentation for the DIP Facility and Exit Facility and all agreements and documentation related or ancillary thereto, which definitive documentation shall be consistent with and subject to the terms and conditions set forth in this Agreement (the “Restructuring”), which Restructuring requires pursuing consummation of a “pre- negotiated” chapter 11 plan of reorganization in the form attached as Exhibit A and Exhibit B hereto (together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Plan”)
1. In order to effectuate the Restructuring, the Company shall commence, in accordance with the terms of this Agreement, voluntary “pre-negotiated” cases (the “Chapter 11 Cases” and the date on which such Chapter 11 Cases are commenced, the “Petition Date”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The documents related to or otherwise utilized to implement or effectuate the Restructuring Term Sheet, respectively, (collectivelyiv) all other exhibits attached to the Restructuring Term Sheet, the “Restructuring Documents”) shall include, among others:
(iv) the Plan, a customary plan supplement (including any schedules of assumed and rejected leases and executory contracts), the related disclosure statement (such disclosure statement, together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended, supplemented or otherwise 1 In the event of any inconsistency between the Plan and the remainder of this Agreement, the Plan shall control. 112767832 modified from time to time in accordance with the terms herein and therein, the “Disclosure Statement”), and any other documents and/or agreements relating to the Plan and/or the Disclosure Statement, including (A) a motion seeking approval of the Disclosure Statement, the procedures for the solicitation of votes in connection with the Plan pursuant to sections 1125 and 1126 of the Bankruptcy Code, the forms of ballots and notices and related relief (such motion, together with all exhibits, appendices, supplements, and related documents, the “Disclosure Statement Motion”), (B) an order of the Bankruptcy Court approving the Disclosure Statement Motion (together with all exhibits, appendices, supplements and related documents, the “Disclosure Statement Order”), (C) the motion seeking confirmation of the Plan, and (D) a proposed order of entered by the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code (together with Plan, including all exhibits, appendices, supplements appendices and related documents, documents (the “Confirmation Order”);
(ii) any organizational and governance documents for the reorganized Company, including without limitation, certificates of incorporation, certificates of formation or certificates of limited partnership (or equivalent organizational documents), bylaws, limited liability company agreements, identity of proposed members of the reorganized Company’s board of directors, shareholders agreements and registration rights agreements, which documents shall in any event include the terms set forth in the corporate governance term sheet attached as Exhibit C hereto (collectively, the “Governance Documents”);
(iii) the agreements governing the newly issued warrants of the reorganized Company on the terms set forth in the term sheets attached as Exhibit D hereto;
(iv) a 3-year business plan for the Company (the “Business Plan”);
(v) all such other definitive documentation relating to a recapitalization or restructuring of the Company as is necessary or desirable to consummate the Restructuring (including, without limitation, all documentation related to the Reorganized First Lien Term Loan Facility (as defined in the Plan), any exit financing or new credit facility);
(vi) any documentation material appendices, amendments, modifications, supplements, exhibits and schedules relating to a the Plan or the Disclosure Statement, including the plan supplement, (vii) any motion and proposed interim and final orders (the “DIP Orders”) relating to debtor-in-possession financing facility (the “DIP Financing”), including a motion seeking approval of a debtor-in-possession financing facility and consensual and/or use of cash collateral and providing adequate protection (viii) any documents relating to the First Lien Lenders consisting of, among other things, (A) adequate protection liens, superpriority administrative claims and payment of reasonable and documented fees and expenses corporate governance of the First Lien Lenders Reorganized Company, including a shareholder agreement consistent with the terms and conditions agreed upon between the Steering Committee and the First Lien Agent Company before the Solicitation Date (and its counselas defined below) and (B) payment of reasonable and documented fees and expenses of the Second Lien Agent (and its counsel) under the Second Lien Credit Agreement, and the interim order (the “Interim DIP OrderShareholder Agreement”) and ); provided, however, that for the final order (the “Final DIP Order” and together with the Interim DIP Orderavoidance of doubt, the Plan Related Documents shall not include any “DIP Orders”) approving such motion; and
(vii) any other agreements, instrumentsfirst day” motions, pleadings, orders and/or objections, applications, or other documents that are filed by debtors and debtors in possession in do not have an adverse effect on the Chapter 11 Cases Requisite Consenting Lenders or the Administrative Agent. The (including a) Plan, (b) the Plan Related Documents, (c) any exhibitsancillary documents required to implement the Restructuring, (d) any amendments, modifications or supplements made from time to time thereto).
(b) Each any of the Restructuring Documents documents set forth in the preceding clauses (a) through (c), (e) any pleadings that may have an adverse effect of the economic interests of the Consenting Lenders or the Administrative Agent and (f) any motions or other pleadings to assume or reject any executory contract or unexpired lease pursuant to section 365 of the Bankruptcy Code shall be consistent in all material respects withwith the Restructuring Term Sheet and, and shall contain, to the extent applicable, the terms and conditions set forth in this Agreement (including the standards for acceptability to specified parties upon completion of the final form of certain Restructuring Documents). In addition:
(i) the Plan, the Confirmation Order, the documentation concerning the DIP Financing, including the DIP Orders and the documentation related to the Reorganized First Lien Term Loan Facility, in each case shall be in form and substance acceptable to the Company and Holder Parties holding at least 50.1% of the aggregate First Lien Claims held by the Holder Parties as of a relevant date (the “Majority Holders”);
(ii) the Governance Documents shall be acceptable to, and need be acceptable only to, the Majority Holders;
(iii) the definitive documentation concerning a $60 million senior secured asset-based revolving credit facility (the “Exit Facility”) shall be on the terms set forth in the commitment letter, and related term sheet, attached as Exhibit E hereto, and shall otherwise be in form and substance reasonably acceptable to the Majority Holders and the Company;
(iv) the definitive documentation concerning the Class B Warrants and Class C Warrants, including the applicable warrant agreementexhibits thereto, shall otherwise be in form and substance reasonably acceptable to the Majority Holders (i) Company; (ii) the Requisite Consenting Lenders; (iii) the Administrative Agent; (iv) solely to the extent any matter under any of the Plan or the Plan Related Documents adversely affects their economic interests, the Requisite Consenting 2012 Facility Lenders (which lenders shall have the right to terminate this Agreement under Section 6.01(b), (f), and (g) to the Sponsorextent the matters described in such Termination Events adversely affect their economic interests); and
and (v) the other Restructuring Documents shall otherwise be in form and substance reasonably acceptable solely with respect to the Company and Plan, the Majority HoldersRequisite Consenting Noteholders solely to the extent affecting treatment of the economic interests of the Consenting Noteholders set forth in the Plan. For the purposes of this Agreement, any reference to an adverse effect on the economic interests of a Party shall mean an adverse effect on the economic interests of such Party to the extent inconsistent with the terms of the Restructuring Term Sheet.
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