LEAR CORPORATION 21557 Telegraph Road Southfield, Michigan 48033
Exhibit 10.4
EXECUTION
VERSION
XXXX CORPORATION
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
July 6, 2009
To the Holders of Noteholder Claims
Referred to Below
Referred to Below
Ladies and Gentlemen:
This letter agreement (the “Agreement”) sets forth certain terms and conditions
pursuant to which Xxxx Corporation (“Lear”) and certain of its domestic and Canadian
subsidiaries (together with Lear, collectively the “Debtors”) will propose their jointly
filed chapter 11 plan of reorganization (a “Plan”) on a consensual basis with the support
of certain of the holders (the “Noteholders”) of (i) 8.50% senior notes due 2013, (ii)
5.75% senior notes due 2014, (iii) 8.75% senior notes due 2016, and/or (iv) zero-coupon convertible
senior notes due 2022 (collectively, the “Notes”) issued by Lear.
Capitalized terms not defined herein shall have the meaning ascribed to such terms in the
Restructuring Term Sheet (as defined below).
The parties hereto hereby agree as follows:
1. Proposed Plan of Reorganization
Each of the Debtors proposes to commence voluntary, pre-arranged cases (collectively, the
“Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the
“Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New
York (the “Bankruptcy Court”) to be jointly administered. Certain Canadian subsidiary
Debtors (the “Canadian Debtors”) propose to commence parallel cases under section 18.6 of
the Companies’ Creditors Arrangement Act (the “CCAA Cases”) in the Ontario Superior Courts
Commercial List (the “Canadian Court”), in which such Canadian Debtors will seek relief
consistent with the relief sought by the Debtors in the Chapter 11 Cases. As part of the Chapter 11
Cases, the Debtors intend to file a disclosure statement and related Plan, which will provide for,
among other things, certain distributions on account of the claims of the Noteholders under the
Notes (together with all related claims, rights and causes of action arising out of or in
connection with or otherwise relating to such Notes, the “Noteholder Claims”).
2. Representations and Warranties of the Participating
Noteholders
Each Noteholder identified as a holder of Noteholder Claims on the signature pages hereto
(such Noteholders, the “Participating Noteholders”) (for the avoidance of doubt if the
Noteholder is specified on the relevant signature as a particular group or business within an
entity, “Participating Noteholder” shall mean such group or
business and shall not mean the entity or its affiliates, or any other desk or business
thereof, or any third party funds advised thereby) represents and warrants to the Debtors that, as
of the date hereof:
(a) Such Participating Noteholder (i) either (A) is the beneficial owner of the principal
amount of Notes set forth below under its signature hereto, or (B) has investment or voting
discretion (other than ordinary course pledges and/or swaps) with respect to the principal amount
of Notes set forth below under its signature and has the power and authority to bind the beneficial
owner(s) of such Notes and Noteholder Claims to the terms of this Agreement and (ii) has full power
and authority to act on behalf of, vote and consent to matters concerning such Notes and Noteholder
Claims and to dispose of, exchange, assign and transfer such Notes and Noteholder Claims.
(b) Such Participating Noteholder has made no prior assignment, sale, participation, grant,
conveyance, or other transfer of, and has not entered into any other agreement to assign, sell,
participate, grant, convey or otherwise transfer, in whole or in part, any portion of its right,
title, or interests in any Notes or Noteholder Claims that are subject to this Agreement (other
than ordinary course pledges and/or swaps) that are inconsistent with the representations and
warranties of such Participating Noteholder herein or would render such Participating Noteholder
otherwise unable to comply with this Agreement and perform its obligations hereunder.
(c) Such Participating Noteholder (i) has such knowledge and experience in financial and
business matters of this type that it is capable of evaluating the merits and risks of entering
into this Agreement and of making an informed investment decision, and has conducted an independent
review and analysis of the business and affairs of the Debtors that it considers sufficient and
reasonable for purposes of entering into this Agreement and (ii) is an “accredited investor” (as
defined by Rule 501 of the Securities Act of 1933, as amended).
For the purposes of this Agreement, “Participating Noteholders” shall not include a holder of
Notes or Noteholder Claims signatory hereto in its capacity or to the extent of its holdings as a
public-side broker, dealer or market maker of Notes or Noteholder Claims or any other claim against
or security in the Debtors.
3. Support for a Qualified Plan
Subject to the terms and conditions hereof and for so long this Agreement has not been
terminated as provided herein, each Participating Noteholder shall, with respect to the Noteholder
Claims that it beneficially owns or has investment or voting discretion with respect to at such
time, (a) (i) vote its Noteholder Claims to accept any Plan proposed by the Debtors incorporating
the terms and conditions set forth on the term sheet annexed 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 10 hereof, the
“Restructuring
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Term Sheet”), materially consistent in all respects with this Agreement and the
Restructuring Term Sheet, and in form and substance reasonably satisfactory to the Debtors and the
Requisite Participating Noteholders (as defined below) (a “Qualified Plan”) by delivering
its duly executed and completed ballot accepting such Qualified Plan on a timely basis following
commencement of the solicitation of acceptances of such Qualified Plan in accordance with sections
1125 and 1126 of the Bankruptcy Code and (ii) not change or withdraw such vote (or cause or direct
such vote to be changed or withdrawn) (subject to the provisions of Section 6(b) hereof);
(b) support the confirmation and consummation of a Qualified Plan and the transactions contemplated
thereby, (c) not object to, or vote any of its Noteholder Claims to reject, a Qualified Plan or
otherwise take any action or commence any proceeding to oppose or to seek any modification of a
Qualified Plan, the related disclosure statement, in form and substance reasonably satisfactory to
the Debtors and the Requisite Participating Noteholders and materially consistent in all respects
with this Agreement and the Restructuring Term Sheet (the “Disclosure Statement”), or any
other reorganization documents filed by any of the Debtors in connection with the Chapter 11 Cases
and the confirmation of a Qualified Plan that, in each case, are materially consistent in all
respects with this Agreement and the Qualified Plan, and (d) not directly or indirectly seek,
solicit, support, encourage, vote its Noteholder Claims for, or consent to, encourage, or
participate in any negotiations regarding, (i) any plan of reorganization, proposal, offer,
dissolution, winding up, liquidation, reorganization, merger, consolidation, business combination,
joint venture, partnership, sale of assets or restructuring for any of the Debtors (each, an
“Alternative Proposal”) other than a Qualified Plan or (ii) any other action that is
inconsistent with, or that would delay or obstruct the proposal, solicitation, confirmation, or
consummation of, a Qualified Plan.
Provided, however, unless expressly limited herein, nothing contained herein
shall limit: (i) the ability of a Participating Noteholder to consult with other Participating
Noteholders or the Debtors; (ii) the rights of a Participating Noteholder under any applicable
bankruptcy, insolvency, foreclosure or similar proceeding, including, without limitation, appearing
as a party in interest in any matter to be adjudicated to appear and be heard, concerning any
matter arising in the Chapter 11 Cases or the CCAA Cases so long as such consultation or appearance
is not inconsistent with the Participating Noteholder’s obligations hereunder and the terms of the
Qualified Plan; (iii) the ability of a Participating Noteholder to sell or enter into any
transactions in connection with the Notes or any other claims against or interests in the Debtors,
subject to Section 4 hereof; or (iv) the rights of any Participating Noteholder under the
indentures governing the Notes or constitute a waiver or amendment of any provision of the
indentures governing the Notes.
The Noteholders party to this Agreement shall support the DIP Facility (as defined in the
Restructuring Term Sheet).
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4. Transfer of Noteholder Claims
Each Participating Noteholder agrees that so long as this Agreement has not been terminated in
accordance with its terms it shall not directly or indirectly sell, pledge, hypothecate or
otherwise transfer or dispose of, or grant, issue or sell any option, right to acquire, voting,
participation or other interest in (“Transfer”) any Noteholder Claims, except to a party
that (i) is a Participating Noteholder or (ii) agrees in writing to be subject to the terms and
conditions of this Agreement as a “Participating Noteholder”, by executing the Joinder attached
hereto as Exhibit A by three business days following such transfer, a copy of which shall be
provided to both Stroock & Stroock & Xxxxx LLP as counsel to the Ad Hoc Group (“Stroock”,
and together with Moelis & Company, as financial advisors to the Ad Hoc Group and Canadian counsel
to the Ad Hoc Group, the “Ad Hoc Group Advisors”) and Xxxxxxxx & Xxxxx LLP as counsel to
the Debtors. Any Transfer of any Noteholder Claim that does not comply with the foregoing shall be
deemed void ab initio. This Agreement shall in no way be construed to preclude any Noteholder from
acquiring additional Noteholder Claims or any other interests in any Debtors; provided,
however, that any such additional Noteholder Claims or other interests in such Debtor
shall, upon acquisition, automatically be deemed to be subject to all the terms of this Agreement;
except to the extent that such additional Notes and Noteholder Claims are acquired by a Qualified
Marketmaker in accordance with the following proviso.
Provided, however, that the foregoing shall not limit transactions by any
Qualified Marketmaker (as defined below) in respect of Notes and Noteholder Claims not otherwise
subject to this Agreement (as identified on the signature pages hereto or acquired pursuant to the
last sentence of the immediately preceding paragraph and not subject to the exception in such
sentence, which such exception does not in any way apply to Notes or Noteholder Claims transferred
or delivered in any manner to or from a Qualified Marketmaker that were at the time of transfer
subject to this Agreement) (i) conducted in the ordinary course of its broker/dealer, market maker
or flow trading business, and (ii) not entered into with a view towards establishing and holding
directionally biased positions (including without limitation engaging in arbitrage positions with
respect to Notes) for the proprietary account of such Qualified Marketmaker, whether in a
proprietary trading unit or otherwise. For the avoidance of doubt, the accumulation of an
inventory of Notes by a Qualified Market Maker in the ordinary course of its broker/dealer, market
maker or flow trading business shall not be deemed to be establishing or holding a directionally
biased position for purposes of clause (ii) of the immediately preceding sentence. Notwithstanding
anything to the contrary in this paragraph or otherwise, to the extent any Notes or Noteholder
Claims that are subject to this Agreement (as identified on the signature pages hereto or acquired
pursuant to the last sentence of the immediately preceding paragraph and not subject to the
exception in such sentence, which such exception does not in any way apply to Notes or Noteholder
Claims transferred or delivered in any manner to or from a Qualified Marketmaker that were at the
time of transfer subject to this Agreement) are sold,
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purchased or otherwise transferred to or from any Qualified Marketmaker, any such Noteholder
Claim shall at all times and in all respects remain subject to this Agreement.
Notwithstanding anything to the contrary in the immediately preceding two paragraphs, the
definition of Participating Noteholders herein, or otherwise, the full amount of the Noteholders
Claims set forth on each Noteholder’s signature page to this Agreement is subject at all times and
in all respects to the provisions of this Agreement, and each such amount shall not be reduced in
any respect by invocation or application of the preceding two paragraphs of this Agreement, the
definition of Participating Noteholders herein, or any other provisions of this Agreement or
otherwise.
“Qualified Marketmaker” means an entity that (i) holds itself out to the public as standing
ready in the ordinary course of its business to purchase from and sell Notes to or on behalf of
customers (or to enter with customers into long and short positions in derivative contracts that
reference Notes), in its capacity as a dealer or market maker in such Notes, (ii) in fact regularly
makes a two-way market in such Notes or regularly engages in flow trading with or on behalf of
customers, and (iii) consistently has filed its U.S. federal income tax returns on the basis that
such business constituted a securities dealer business within the scope of section 475(a) of the
Internal Revenue Code of 1986, as amended. An entity that is under common control with or
controlled by a Qualified Marketmaker shall be considered a Qualified Marketmaker to the extent it
satisfies conditions (i) and (ii) of the preceding sentence.
5. The Debtors’ Covenants
As long as a Termination Event (as defined below) has not occurred, or has occurred but has
been duly waived in accordance with the terms hereof, the Debtors shall, subject to Section
23 herein, use their reasonable best efforts to:
(a) file the Disclosure Statement and prosecute its approval by the Bankruptcy Court within
the time frame set forth herein;
(b) obtain from the Bankruptcy Court an order confirming a Qualified Plan (the
“Confirmation Order”) within the time frame set forth herein, which Confirmation Order
shall be in form and substance reasonably satisfactory to the Requisite Participating Noteholders
and the Debtors and materially consistent in all respects with this Agreement and the Restructuring
Term Sheet;
(c) effectuate and consummate a Qualified Plan within the timeframe set forth herein; and
(d) continue payment of the fees and expenses of the Ad Hoc Group Advisors upon the terms of
the engagement letters executed by the Company and each professional, subject to modification as
reasonably acceptable to Stroock, Moelis and the Ad Hoc Steering Committee and pursuant to
applicable bankruptcy law, including but not
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limited to supporting an application by the Ad Hoc Group for reimbursement of fees and
expenses of the Ad Hoc Group Advisors under section 503(b) of the Bankruptcy Code and payment of
such fees and expenses pursuant to the Qualified Plan under section 1129(a)(4) of the Bankruptcy
Code.
6. Termination of Obligations
(a) This Agreement shall terminate and all obligations of the parties hereto shall immediately
terminate and be of no further force and effect as follows:
(i) by the mutual written consent of Lear and Participating Noteholders holding more
than 66 2/3% of the Noteholder Claims bound under this Agreement held by Participating
Noteholders who are not then in breach of their obligations under this Agreement (the
“Requisite Participating Noteholders”);
(ii) upon two (2) business days prior written notice of termination delivered to Lear
by the Requisite Participating Noteholders following the occurrence of any of the events
listed below (each, a “Termination Event”), unless waived in accordance with
Section 10 hereof:
(A) the Chapter 11 Cases shall not have been filed by July 9, 2009 (or such later
date as may be agreed by Lear and the Requisite Participating Noteholders);
(B) a Qualified Plan and the Disclosure Statement shall not have been filed within
60 days after the filing date of the Chapter 11 Cases (the “Petition Date”) (or
such later date as may be agreed by Lear and the Requisite Participating Noteholders);
(C) the Bankruptcy Court shall not have entered an order, in form and substance
reasonably satisfactory to the Requisite Participating Noteholders, approving the
adequacy of the Disclosure Statement within 150 days after the Petition Date (or such
later date as may be agreed by Lear and the Requisite Participating Noteholders);
(D) the Bankruptcy Court shall not have entered the Confirmation Order within 270
days after the Petition Date (or such later date as may be agreed by Lear and the
Requisite Participating Noteholders);
(E) a Qualified Plan shall not have been consummated within 300 days after the
Petition Date (or such later date as may be agreed by Lear and the Requisite
Participating Noteholders);
(F) the Debtors shall have materially breached their covenants, representations,
warranties or obligations under this Agreement;
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(G) the Debtors (1) withdraw or revoke the Qualified Plan or publicly announce
their intention not to pursue the Qualified Plan or (2) propose, accept or file a
motion with the Bankruptcy Court seeking approval of an Alternative Proposal;
(H) (1) an examiner with expanded powers or a trustee shall have been appointed in
any of the Chapter 11 Cases or (2) any of the Chapter 11 Cases shall have been
converted to cases under Chapter 7;
(I) the Chapter 11 Case of any Debtor that is an obligor or guarantor under any
indenture governing the Notes is involuntarily dismissed;
(J) the CCAA Cases shall have been converted to Canadian bankruptcy proceedings or
the CCAA Cases shall have been involuntarily dismissed by the Canadian Court;
(K) the Qualified Plan is modified or replaced such that it (or any such
replacement) at any time is not in whole or in part consistent in any material respect
with the Restructuring Term Sheet;
(L) the termination of, or occurrence of an event of default (as defined in the
applicable agreement) under, any order or agreement permitting the use of cash
collateral or to provide post-petition debtor-in-possession financing or exit financing
to the Debtors which shall not have been cured within any applicable grace periods or
waived pursuant to the terms of the agreement governing such facility; or
(M) there shall have occurred a force majeure event (to be defined as a
significant global disruption in the financial markets caused by outbreak of war,
terrorism, or other incidents, but not adverse changes in the financial, banking or
capital markets generally); or
(N) a “Termination Event” shall have occurred under the Lender Plan Support
Agreement (as defined in the Restructuring Term Sheet).
(iii) upon delivery of written notice of termination to the Participating Noteholders
by Lear following any material breach of any of the Participating Noteholders’
representations, warranties, covenants, obligations or agreements set forth in this
Agreement.
(b) Upon termination of this Agreement in accordance with the terms herein, this Agreement
shall forthwith become void and of no further force or effect, each party hereto shall be released
from its commitments, undertakings and agreements under or related to this Agreement, and there
shall be no liability or obligation on the part of any party hereto; provided,
however, that in no event shall any such termination relieve a party hereto from liability
from its breach or non-performance of its obligations
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hereunder prior to the date of such termination. Upon the occurrence of any termination of
this Agreement, any and all votes delivered by a Participating Noteholder prior to such termination
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 Debtors. If this Agreement has been terminated
at a time when permission of the Bankruptcy Court shall be required for the Participating
Noteholder to change or withdraw (or cause to change or withdraw) its vote to accept the Plan, the
Debtors shall not oppose any attempt by the Participating Noteholder to change or withdraw (or
cause to change or withdraw) such vote at such time unless the Debtors dispute the effectiveness of
termination of this Agreement. The Participating Noteholders shall have no liability to the
Debtors or to each other in respect of any termination of this Agreement following the occurrence
of a Termination Event.
7. Good Faith Cooperation; Further Assurances;
Acknowledgment
The parties hereto shall cooperate and negotiate with each other in good faith and shall
coordinate their activities (to the extent practicable and subject to the terms hereof) in respect
of (a) all material matters relating to their rights in respect of the Debtors or otherwise in
connection with their relationship with the Debtors, (b) all material matters concerning the
implementation of the Qualified Plan, including the definitive documents implementing and achieving
the Qualified Plan (including the order of the Bankruptcy Court order of the Bankruptcy Court
confirming the Qualified Plan, the order of the Canadian Court recognizing the order confirming the
Qualified Plan and other related documents, each of which are more specifically described in the
Restructuring Term Sheet (the “Definitive Documents”)) and (c) the pursuit and support of
the restructuring transaction contemplated herein. Furthermore, subject to the terms hereof, each
of the parties shall take such action as may be reasonably necessary, in their discretion, to carry
out the purposes and intent of this Agreement, including making and filing any required regulatory
filings. The Company agrees to provide drafts of all Definitive Documents to the Ad Hoc Group
Advisors and shall afford them a reasonable opportunity to comment on such documents and
disclosures. The consent or approval of the Requisite Participating Noteholders to the Definitive
Documents, or any other documents provided for under this Agreement, may be communicated to the
Debtors by Stroock.
8. Specific Performance
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 attorneys fees and
costs, as a remedy of any such breach, and each party agrees to waive any requirement for the
securing or posting of a bond in connection with such remedy, in addition to any other remedy to
which such non-breaching party may be entitled, at law or in equity.
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9. Prior Negotiations
This Agreement supersedes all prior negotiations, and documents reflecting such prior
negotiations, between and among the Debtors and the Noteholders (and their respective advisors),
with respect to the subject matter hereof.
10. Amendments
No amendment, modification, waiver or other supplement of the terms of this Agreement or the
Restructuring Term Sheet shall be valid unless such amendment, modification, waiver or other
supplement is in writing and has been signed by the Debtors and the Requisite Participating
Noteholders, provided, however, (a) the written consent of each Participating Noteholder shall be
required for any amendment, modification, waiver or other supplement of this Section 10 or
the definition of Requisite Participating Noteholders as used in this Agreement, and (b) the
written consent of Participating Noteholders holding at least 66 2/3% of the aggregate Noteholder
Claims or, if the Participating Noteholders hold in the aggregate less than such percentage of the
aggregate Noteholder Claims, then the written consent of each Participating Noteholder, shall be
required for any amendment, modification, waiver or other supplement of this Agreement that effects
a material change to the treatment of the Class 5A — Other Unsecured Claims (as defined in the
Restructuring Term Sheet) from that reflected in the Restructuring Term Sheet as of the date
hereof.
For the purposes hereof, immaterial changes to the Restructuring Term Sheet shall not
constitute a modification or amendment thereof or of this Agreement and may be made by the Debtors
and the Ad Hoc Group Advisors.
11. Independent Analysis
Each Participating Noteholder hereby confirms that it has made its own decision to execute
this Agreement based upon its own independent assessment of documents and information available to
it, as it deemed appropriate.
12. Governing Law
This Agreement and all matters arising out of or related to this Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of New York without regard to
conflicts of laws (other than Section 5-1401 of the General Obligations Laws of the State of New
York). By its execution and delivery of this Agreement, each of the parties hereto hereby
irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against
it with respect to any matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit or proceeding, may be
brought in either a state or federal court of competent jurisdiction in the State of New York. By
execution and delivery of this Agreement, each of the parties hereto hereby irrevocably accepts and
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submits itself to the exclusive jurisdiction of each such court, generally and
unconditionally, with respect to any such action, suit or proceeding. Notwithstanding the foregoing
consent to jurisdiction in either a state or federal court of competent jurisdiction in the State
of New York, upon the commencement of the Chapter 11 Cases, each of the parties hereto hereby
agrees that, if the petitions have been filed and the Chapter 11 Cases are pending, the Bankruptcy
Court shall have exclusive jurisdiction of all matters arising out of or in connection with this
Agreement.
13. Effective Date
This Agreement shall become effective when counterparts hereof have been duly executed and
delivered by the Debtors and Participating Noteholders holding more than 50% of all Noteholder
Claims (the “Effective Date”); provided, however, that signature pages
executed by Participating Noteholders shall be delivered to (a) other Participating Noteholders in
a redacted form that removes such Participating Noteholders’ holdings of the Notes and (b) the
Debtors and advisors to the Participating Noteholders in an unredacted form; provided,
further, that if as of the commencement of the Chapter 11 Cases, the Debtors have not
received (a) signature pages to this Agreement from Noteholders holding more than 50% of the
aggregate amount of Noteholder Claims and (b) signatures to the Lender Plan Support Agreement from
Prepetition Credit Agreement Lenders (as defined in the Restructuring Term Sheet) holding more than
50% of the aggregate amount of the claims under the Prepetition Credit Agreement (as defined in the
Restructuring Term Sheet), this Agreement shall become null and void.
Upon the Effective Date, the Restructuring Term Sheet shall be deemed effective for the
purposes of this Agreement and thereafter the terms and conditions therein may only be amended,
modified, waived or otherwise supplemented as set forth in Section 10 above.
14. Third-Party Beneficiary
This Agreement is intended for the benefit of the parties hereto and no other person shall
have any rights hereunder.
15. Counterparts
This Agreement may be executed in several counterparts, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one and the same agreement. Execution
copies of this agreement may be delivered by facsimile or otherwise, which shall be deemed to be an
original for the purposes of this paragraph.
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16. Headings
The section headings of this Agreement are for convenience of reference only and shall not,
for any purpose, be deemed a part of this Agreement.
17. Acknowledgment
This Agreement is not and shall not be deemed to be a solicitation of consents to the Plan.
The acceptance of the Noteholders will not be solicited until the Noteholders have received the
Disclosure Statement and related ballot, as approved by the Bankruptcy Court.
18. Settlement Discussions
This Agreement and the Restructuring Term Sheet are part of a proposed settlement of matters
that could otherwise be the subject of litigation amount 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.
19. No Waiver of Participation and Preservation of Rights
Except as provided in this Agreement, nothing herein is intended to, does or shall be deemed
in any manner to waive, limit, impair or restrict the ability of each of the Noteholders to protect
and preserve its rights, remedies and interests, including, but not limited to, its claims against
any of the Debtors, any liens or security interests it may have in any assets of any of the
Debtors, or its full participation in the Chapter 11 Cases. Without limiting the foregoing sentence
in any way, if this Agreement is terminated in accordance with its terms for any reason, the
parties hereto each fully reserve any and all of their respective rights, remedies and interests,
subject to Section 6(b) in the case of any claim for breach of Agreement arising prior to
termination.
| 20. | Successors and Assigns; Severability; Several Obligations. |
This Agreement is intended to bind and inure to the benefit of the parties and their
respective successors, assigns, heirs, executors, administrators and representatives. The
invalidity or unenforceability at any time of any provision hereof shall not affect or diminish in
any way the continuing validity and enforceability of the remaining provisions hereof. The
agreements, representations and obligations of the Participating Noteholders under this Agreement
are, in all respects, several and not joint.
21. Relationship Among Parties.
It is understood and agreed that no Participating Noteholder has any duty of trust or
confidence in any form with any other Participating Noteholder, and, except as
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provided in this Agreement, there are no commitments among or between them. In this regard,
it is understood and agreed that any Participating Noteholder may trade in the Notes or other debt
or equity securities of the Debtors without the consent of the Debtors or any other Participating
Noteholder, subject to applicable securities laws and the terms of this Agreement; provided further
that no Participating Noteholder shall have any responsibility for any such trading by any other
entity by virtue of this Agreement. No prior history, pattern or practice of sharing confidences
among or between the Participating Noteholders shall in any way affect or negate this understanding
and agreement.
22. Disclosure; Publicity.
(a) Not later than two business days after commencement of the Chapter 11 Cases, subject to
the provisions set forth in Section 22(b) hereof, the Debtors shall either file with the
Securities and Exchange Commission a Report on Form 8-K or disseminate a press release disclosing
the existence of this Agreement and the terms hereof (including the schedules and exhibits hereto),
with such redactions as may be requested by any Participating Noteholder’s counsel solely with
respect to maintaining the confidentiality of the items identified in Section 22(b) hereof,
except as otherwise required by law. In the event that the Debtors fail, in the reasonable
judgment of a Participating Noteholder, to make the foregoing disclosures in compliance with the
terms specified herein, any such Participating Noteholder may publicly disclose the foregoing,
including, without limitation, this Agreement and all of its exhibits and schedules (subject to the
redactions called for by Section 13 hereof), and the Company hereby waives any claims
against the Consenting Holders arising as a result of such disclosure by a Consenting Holder;
provided that such disclosure fully complies with this Agreement and any other applicable agreement
among the parties.
(b) The Debtors will submit drafts to the Ad Hoc Group Advisors of any press releases and
public documents that constitute disclosure of the existence or terms of this Agreement or any
amendment to the terms of this Agreement at least one (1) business day prior to making any such
disclosure, and shall afford them a reasonable opportunity to comment on such documents and
disclosures. Except as required by law or otherwise permitted under the terms of any other
agreement between the Debtors and any Participating Noteholder, no party or its advisors shall (i)
use the name of any Participating Noteholder in any public manner or (ii) disclose to any person
(including, for the avoidance of doubt, any other Participating Noteholder), other than advisors to
the Debtors, the principal amount or percentage of any Notes or any other securities of the Debtors
held by any Participating Noteholder, in each case, without such Participating Noteholder’s prior
written consent; provided, however, that (i) if such disclosure is required by law
or regulation, the disclosing party shall use reasonable best efforts to afford the relevant
Participating Noteholder a reasonable opportunity to review and comment in advance of such
disclosure and shall take all reasonable measures to limit such disclosure and (ii) the foregoing
shall not prohibit the disclosure of the aggregate
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percentage or aggregate principal amount of Notes held by all the Participating Noteholders
collectively.
23. Fiduciary Duties.
Notwithstanding anything to the contrary herein, nothing in this Agreement shall require (a)
the Debtors or any directors or officers of the Debtors (in such person’s capacity as a director or
officer of the Debtors) to take any action, or to refrain from taking any action, to the extent
required to comply with its or their fiduciary obligations under applicable law, or (b) any
Participating Noteholder or representative of a Participating Noteholder that is a member of a
statutory committee established in the Chapter 11 Cases to take any action, or to refrain from
taking any action, in such person’s capacity as a statutory committee member to the extent required
to comply with fiduciary obligations applicable under the Bankruptcy Code; provided
however, that nothing in this Agreement shall be construed as requiring any Participating
Noteholder to serve on any statutory committee in the Chapter 11 Case. Nothing herein will limit
or affect, or give rise to any liability, to the extent required for the discharge of the fiduciary
obligations described in this Section 23.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their respective duly authorized officers, solely in their respective capacity as officers of
the undersigned and not in any other capacity, as of the date first set forth above.
| XXXX CORPORATION (on behalf of itself and all other Debtors) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
AGREED BY EACH OF THE FOLLOWING
NOTEHOLDERS
NOTEHOLDERS
14
[CONSENTING HOLDER]
By:
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Name: |
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Title: |
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Principal Amount of Notes Held
| Security | Amount | |||
8.5% Senior Notes due 2013 |
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5.75% Senior Notes due 2014 |
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8.75% Senior Notes due 2016 |
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Zero Coupon Senior Notes due 2022 |
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Notice Address:
Fax:
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Attention:
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[Signature Pages to Lock-Up Agreement]
EXHIBIT A
JOINDER
This Joinder to the Restructuring & Lockup Agreement, dated as of July 1, 2009, by and among
Xxxx Corporation and the Participating Noteholders signatory thereto (the “Agreement”), is
executed and delivered by [ ] (the “Joining Party”) as of [ ],
2009. Each capitalized term used herein but not otherwise defined shall have the meaning set forth
in the Agreement.
1. Agreement to be Bound. The Joining Party hereby agrees to be bound by all of the
terms of the Agreement, attached to this Joinder as Annex I (as the same may be hereafter amended,
restated or otherwise modified from time to time). The Joining Party shall hereafter be deemed to
be a “Participating Noteholder” and a party for all purposes under the Agreement.
2. Representations and Warranties. With respect to the aggregate principal amount of
Notes set forth below its name on the signature page hereof and all related claims, rights and
causes of action arising out of or in connection with or otherwise relating to such Notes, the
Joining Party hereby makes the representations and warranties of the Participating Noteholders set
forth in the Agreement to each other party to the Agreement.
3. Governing Law. This Joinder shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to any conflicts of law provisions which
would require the application of the law of any other jurisdiction.
* * * * *
[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT BLANK]
INTENTIONALLY LEFT BLANK]
A-1
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date
first written above.
[CONSENTING HOLDER]
By:
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Name: |
||
Title: |
||
Principal Amount of Notes Held
| Security | Amount | |||
8.5% Senior Notes due 2013 |
||||
5.75% Senior Notes due 2014 |
||||
8.75% Senior Notes due 2016 |
||||
Zero Coupon Senior Notes due 2022 |
||||
Notice Address:
Fax:
|
Attention:
|
With a copy to:
A-2
Fax:
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Attention:
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| Acknowledged: XXXX CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
A-3
