IN THE TERM SHEET.
THE PLAN
SHALL EMBODY THE TERMS CONTAINED IN, AND SHALL BE CONSISTENT WITH, THE TERM
SHEET, AND SHALL ONLY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME BY
WRITTEN APPROVAL OF EACH OF THE PARTIES.
SECTION 3.
COMMITMENTS REGARDING THE
RESTRUCTURING.
3.01.
COMMITMENT OF EACH OF THE PARTIES.
(A)
AGREEMENT TO SUPPORT THE RESTRUCTURING AND
PLAN.
EACH OF THE PARTIES AGREES THAT IT SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS AND SHALL NEGOTIATE IN GOOD FAITH THE DEFINITIVE AGREEMENTS AND OTHER
DOCUMENTS NECESSARY TO EFFECTUATE THE CONSUMMATION OF THE PLAN.
(B)
AGREEMENT TO SUPPORT AND VOTE.
AS LONG AS
NO AGREEMENT TERMINATION EVENT (AS DEFINED BELOW) SHALL HAVE OCCURRED, EACH
PARTY AGREES THAT, SUBJECT TO THE TERMS OF THIS AGREEMENT, IT SHALL TAKE SUCH
STEPS AS REASONABLY NECESSARY TO SUPPORT AND ACHIEVE APPROVAL OF THE
CONFIRMATION OF THE PLAN (FOR THE AVOIDANCE OF DOUBT, IT BEING UNDERSTOOD AND
AGREED BY THE PARTIES THAT THE "PLAN" AS USED IN THIS SECTION 3.01(B) SHALL
INCLUDE ANY AMENDMENTS OR MODIFICATIONS TO THE PLAN SOLELY TO THE EXTENT SUCH
AMENDMENTS OR MODIFICATIONS HAVE BEEN CONSENTED TO IN WRITING BY THE REQUISITE
CONSENTING LENDERS (AS DEFINED BELOW) IN THEIR SOLE DISCRETION), INCLUDING:
(I)
WHEN SOLICITED WITH A DISCLOSURE
STATEMENT APPROVED BY THE BANKRUPTCY COURT, THE TIMELY VOTING OF (OR CAUSING THE
TIMELY VOTING OF) ITS CLAIMS ARISING WITH RESPECT TO THE PRE-PETITION CREDIT
AGREEMENT ("CLAIMS"), TO ACCEPT THE PLAN;
(II)
CONSENTING TO THE TREATMENT OF ITS CLAIMS
AS SET FORTH IN THE PLAN;
(III)
NOT CHANGING, REVOKING OR WITHDRAWING (OR
CAUSING TO BE CHANGED, REVOKED OR WITHDRAWN) SUCH VOTE; AND
(IV)
VOTING AGAINST AND IN NO WAY OTHERWISE
AGREEING TO, CONSENTING TO OR PROVIDING ANY SUPPORT TO ANY OTHER PLAN OF
REORGANIZATION OTHER THAN THE PLAN.
(C)
AGREEMENT NOT TO INTERFERE.
FOR THE
AVOIDANCE OF DOUBT, EACH PARTY ALSO AGREES THAT, AS LONG AS NO AGREEMENT
TERMINATION EVENT (AS DEFINED BELOW) SHALL HAVE OCCURRED, (I) IT WILL NOT OBJECT
TO, DELAY, POSTPONE OR TAKE ANY OTHER ACTION TO INTERFERE, DIRECTLY OR
INDIRECTLY, IN ANY MATERIAL RESPECT WITH THE APPROVAL, ACCEPTANCE OR
IMPLEMENTATION OF THE PLAN, (II) DIRECTLY OR INDIRECTLY SOLICIT, PROPOSE, FILE
OR VOTE FOR ANY PLAN OF REORGANIZATION OF THE COMPANY OTHER THAN THE PLAN OR
(III) TAKE ANY OTHER ACTION, INCLUDING BUT NOT LIMITED TO, INITIATING ANY LEGAL
2
PROCEEDING, THAT IS MATERIALLY INCONSISTENT WITH, OR THAT WOULD PREVENT OR DELAY
CONSUMMATION OF, THE PLAN.
SECTION 4.
REPRESENTATIONS, WARRANTIES,
AND COVENANTS.
EACH OF THE PARTIES REPRESENTS, WARRANTS, AND COVENANTS TO EACH
OTHER PARTY, AS OF THE DATE OF THIS AGREEMENT, AS FOLLOWS (EACH OF WHICH IS A
CONTINUING REPRESENTATION, WARRANTY, AND COVENANT):
4.01.
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 CREDITOR'S RIGHTS GENERALLY