Common use of Plan Support Clause in Contracts

Plan Support. Section 7.16 of the Equity Commitment Agreement is hereby amended by adding the following language after the second sentence of such Section: “Each Additional Purchaser, including its respective Affiliates, shall (x) vote, or change the vote for, as applicable, all Claims (held as of the Voting Record Date (as defined in the Plan) and actually previously voted) and Interests (as defined in the Plan) it holds to accept the Plan prior to the Voting Deadline (as defined in the Plan, as it may be extended in accordance with the Plan, and the Debtors having agreed to extend such Voting Deadline to permit the Additional Purchasers to fulfill their obligations under this Section 7.16) and (y) not object to confirmation of the Plan, otherwise commence or support any proceeding opposing any of the terms of the Plan, or take any other action (directly or indirectly) that in any way prevents, delays, or impedes the restructuring of the Company as contemplated by the Plan (including in connection with the Claims Conversion Sub-Plan); provided that each Additional Purchaser, including each of its Affiliates, shall support (directly and indirectly) confirmation of the Plan and shall not take any action to oppose the date of, or seek to reschedule, the Confirmation Hearing currently set by the Bankruptcy Court on August 31, 2010, which Confirmation Hearing is premised on all Classes of unsecured claims and Class J (each, as defined in the Plan) voting to accept the Plan; provided, further, that the Additional Purchasers, including their respective Affiliates, shall be permitted to object to confirmation of the Plan, and may change their votes to rejecting votes (and the Debtors and Investors expressly agree not to contest or oppose such change of votes), solely in the case of a Sustained Objection. In the case of a Sustained Objection prior to or on August 31, 2010, no Additional Purchaser, nor any of its Affiliates, shall take any action to oppose the date of, or seek to reschedule, the alternate Confirmation Hearing (the “Alternate Confirmation Hearing”) currently set by the Bankruptcy Court on September 28, 2010, which Alternate Confirmation Hearing is premised on a Class of unsecured Claims or Class J (each, as defined in the Plan) voting to reject the Plan; provided that, if a Sustained Objection occurs after August 31, 2010, the earliest date on which the Debtors shall seek to commence the Alternate Confirmation Hearing shall be thirty (30) days following the occurrence of the Sustained Objection, and each Additional Purchaser, and each of its Affiliates, shall actively support, and take no action to oppose, such commencement of the Alternate Confirmation Hearing as early as the thirtieth (30th) day following the occurrence of the Sustained Objection. Further, as of the date of the Third Amendment, each Additional Purchaser, including its respective Affiliates, will (a) withdraw, with prejudice, its appeal of the Order Authorizing the Debtors to Enter Into: (A) a Plan Support Agreement; (B) an Equity Commitment Agreement and to Pay Certain Fees in Connection Therewith; and (C) a Cash Recovery Backstop Agreement, dated June 17, 2010 [Docket No. 3427], including any motions to expedite the same (the “Appeal”); (b) withdraw with prejudice all discovery demands with regard to the Plan (including, without limitation, all interrogatories, requests to admit, requests for production of documents, notices of depositions, and all subpoenas and motions with respect to the same (collectively, “Discovery”)), and seek no further Discovery with respect to any party in the Proceedings, it being understood that, notwithstanding the withdrawal with prejudice, each Additional Purchaser, including its respective Affiliates, may reinitiate the Appeal and its Discovery following the occurrence of a Sustained Objection, it being further understood that if any Additional Purchaser, or any of its Affiliates, reinitiates the Appeal or objects to the Plan or changes its votes, the Additional Purchasers, including their respective Affiliates, shall be deemed to have relinquished their right to participate in the Additional Purchaser Commitment and their right to reimbursement for Additional Purchaser Expenses; and (c) at the request of the Company, and with the Company’s reimbursement of the reasonable, actual and documented fees and expenses (including reasonable, actual and documented attorneys’ fees) of the Additional Purchasers related thereto, provide affirmative support of the Plan at any confirmation trial by filing a pleading and orally specifically stating the Additional Purchasers’ affirmative support of the Plan, which request shall not be made in the case of a Sustained Objection. The Company and the Investors further agree to withdraw with prejudice all Discovery served against any Additional Purchasers or their advisors, it being understood that, notwithstanding the withdrawal with prejudice, the Company and the Investors may reinitiate such Discovery in the case of a Sustained Objection, it being understood that the Additional Purchasers can object to such Discovery. To the extent that any Person formally or informally, or the Bankruptcy Court sua sponte, objects to the Third Amendment or the Plan for any reason, no Additional Purchaser, nor any of their respective Affiliates, shall be, or shall be deemed to have been, released from its obligations pursuant to this Section 7.16 and the Company shall use commercially reasonable efforts to affirmatively support opposition to any such objection and the Investors shall not support any such objection; provided, to the extent that any Person’s objection, or the Bankruptcy Court’s sua sponte objection, to the Third Amendment is sustained only in connection with the payment of Additional Purchaser Expenses pursuant to Section 4.3(d), the Debtors shall use their commercially reasonable efforts to support, and the Investors shall not oppose, a section 503(b)(3)(D) substantial contribution request filed by the Additional Purchasers for the payment of Additional Purchaser Expenses pursuant to and subject to the conditions and limitations of Section 4.3(d), which, for the avoidance of doubt, will not include the payment of any fees or expenses in excess of the limitations on the amount of Additional Purchaser Expenses payable thereunder. Additionally, each Additional Purchaser agrees to comply with the terms of Sections 2.2 and 2.3 of the Plan Support Agreement as if such terms were incorporated herein mutatis mutandis, as if such Additional Purchaser were a Consenting Senior Noteholder thereunder and as if all references to “Relevant Claims” in Section 2.2 of the Plan Support Agreement included “Relevant Interests” (as such term is defined in the Plan Support Agreement). Other than as a result of a Sustained Objection, in the event of any amendment, supplement, change, or modification of the Plan, on file with the Bankruptcy Court as of August 6, 2010, that results in a material adverse change or modification to the treatment of Class J Interests (as defined in the Plan) under the Plan that requires re-solicitation under section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 or the rights and privileges of the Additional Purchasers under this Agreement (which rights and privileges are qualified by the terms of this Agreement), the Additional Purchasers shall have no further obligations or responsibilities under this Agreement, including, without limitation, Section 3.1 and Section 7.16, unless the Additional Purchasers provide their prior written consent.”

Plan Support. Section 7.16 of the Equity Commitment Agreement is hereby amended by adding the following language after the second sentence of such Section: “Each Additional Purchaser, including its respective Affiliates, shall (x) vote, or change the vote for, as applicable, all Claims (held as of the Voting Record Date (as defined in the Plan) and actually previously voted) and Interests (as defined in the Plan) it holds to accept the Plan prior to the Voting Deadline (as defined in the Plan, as it may be extended in accordance with the Plan, and the Debtors having agreed to extend such Voting Deadline to permit the Additional Purchasers to fulfill their obligations under this Section 7.16) and (y) not object to confirmation of the Plan, otherwise commence or support any proceeding opposing any of the terms of the Plan, or take any other action (directly or indirectly) that in any way prevents, delays, or impedes the restructuring of the Company as contemplated by the Plan (including in connection with the Claims Conversion Sub-Plan); provided that each Additional Purchaser, including each of its Affiliates, shall support (directly and indirectly) confirmation of the Plan and shall not take any action to oppose the date of, or seek to reschedule, the Confirmation Hearing currently set by the Bankruptcy Court on August 31, 2010, which Confirmation Hearing is premised on all Classes of unsecured claims and Class J (each, as defined in the Plan) voting to accept the Plan; provided, further, that the Additional Purchasers, including their respective Affiliates, shall be permitted to object to confirmation of the Plan, and may change their votes to rejecting votes (and the Debtors and Investors expressly agree not to contest or oppose such change of votes), solely in the case of a Sustained Objection. In the case of a Sustained Objection prior to or on August 31, 2010, no Additional Purchaser, nor any of its Affiliates, shall take any action to oppose the date of, or seek to reschedule, the alternate Confirmation Hearing (the “Alternate Confirmation Hearing”) currently set by the Bankruptcy Court on September 28, 2010, which Alternate Confirmation Hearing is premised on a Class of unsecured Claims or Class J (each, as defined in the Plan) voting to reject the Plan; provided that, if a Sustained Objection occurs after August 31, 2010, the earliest date on which the Debtors shall seek to commence the Alternate Confirmation Hearing shall be thirty (30) days following the occurrence of the Sustained Objection, and each Additional Purchaser, and each of its Affiliates, shall actively support, and take no action to oppose, such commencement of the Alternate Confirmation Hearing as early as the thirtieth (30th) day following the occurrence of the Sustained Objection. Further, as of the date of the Third Amendment, each Additional Purchaser, including its respective Affiliates, will (a) withdraw, with prejudice, its appeal of the Order Authorizing the Debtors to Enter Into: (A) a Plan Support Agreement; (B) an Equity Commitment Agreement and to Pay Certain Fees in Connection Therewith; and (C) a Cash Recovery Backstop Agreement, dated June 17, 2010 [Docket No. 3427], including any motions to expedite the same (the “Appeal”); (b) withdraw with prejudice all discovery demands with regard to the Plan (including, without limitation, all interrogatories, requests to admit, requests for production of documents, notices of depositions, and all subpoenas and motions with respect to the same (collectively, “Discovery”)), and seek no further Discovery with respect to any party in the Proceedings, it being understood that, notwithstanding the withdrawal with prejudice, each Additional Purchaser, including its respective Affiliates, may reinitiate the Appeal and its Discovery following the occurrence of a Sustained Objection, it being further understood that if any Additional Purchaser, or any of its Affiliates, reinitiates the Appeal or objects to the Plan or changes its votes, the Additional Purchasers, including their respective Affiliates, shall be deemed to have relinquished their right to participate in the Additional Purchaser Commitment and their right to reimbursement for Additional Purchaser Expenses; and (c) at the request of the Company, and with the Company’s reimbursement of the reasonable, actual and documented fees and expenses (including reasonable, actual and documented attorneys’ fees) of the Additional Purchasers related thereto, provide affirmative support of the Plan at any confirmation trial by filing a pleading and orally specifically stating the Additional Purchasers’ affirmative support of the Plan, which request shall not be made in the case of a Sustained Objection. The Company and the Investors further agree to withdraw with prejudice all Discovery served against any Additional Purchasers or their advisors, it being understood that, notwithstanding the withdrawal with prejudice, the Company and the Investors may reinitiate such Discovery in the case of a Sustained Objection, it being understood that the Additional Purchasers can object to such Discovery. To the extent that any Person formally or informally, or the Bankruptcy Court sua sponte, objects to the Third Amendment or the Plan for any reason, no Additional Purchaser, nor any of their respective Affiliates, shall be, or shall be deemed to have been, released from its obligations pursuant to this Section 7.16 and the Company shall use commercially reasonable efforts to affirmatively support opposition to any such objection and the Investors shall not support any such objection; provided, to the extent that any Person’s objection, or the Bankruptcy Court’s sua sponte objection, to the Third Amendment is sustained only in connection with the payment of Additional Purchaser Expenses pursuant to Section 4.3(d), the Debtors shall use their commercially reasonable efforts to support, and the Investors shall not oppose, a section 503(b)(3)(D) substantial contribution request filed by the Additional Purchasers for the payment of Additional Purchaser Expenses pursuant to and subject to the conditions and limitations of Section 4.3(d), which, for the avoidance of doubt, will not include the payment of any fees or expenses in excess of the limitations on the amount of Additional Purchaser Expenses payable thereunder. Additionally, each Additional Purchaser agrees to comply with the terms of Sections 2.2 and 2.3 of the Plan Support Agreement as if such terms were incorporated herein mutatis mutandis, as if such Additional Purchaser were a Consenting Senior Noteholder thereunder and as if all references to “Relevant Claims” in Section 2.2 of the Plan Support Agreement included “Relevant Interests” (as such term is defined in the Plan Support Agreement). Other than as a result of a Sustained Objection, in the event of any amendment, supplement, change, or modification of the Plan, on file with the Bankruptcy Court as of August 6, 2010, that results in a material adverse change or modification to the treatment of Class J Interests (as defined in the Plan) under the Plan that requires re-solicitation under section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 or the rights and privileges of the Additional Purchasers under this Agreement (which rights and privileges are qualified by the terms of this Agreement), the Additional Purchasers shall have no further obligations or responsibilities under this Agreement, including, without limitation, Section 3.1 and Section 7.16, unless the Additional Purchasers provide their prior written consent.”Sustained

Plan Support. Section 7.16 of the Equity Commitment For so long as this Plan Support Agreement is hereby amended by adding not terminated in the following language after manner set forth in Sections 8 and 9 hereof or does not otherwise cease to be effective, and the second sentence of such Section: “Each Additional Purchaser, including its respective Affiliates, shall (x) vote, or change Amended Plan conforms in all material respects to the vote forAmended Plan attached hereto, as applicable, all Claims (held as of the Voting Record Date (as defined in the Plan) and actually previously voted) and Interests (as defined in the Plan) it holds to accept the Plan prior to the Voting Deadline (as defined in the Plan, as it may be extended amended from time to time in accordance with the Planprovisions of Section 13 hereof, each Supporting Junior Prepetition Lender and DIC agrees, subject to, in the Debtors having agreed case of clause (b) below, its receipt of the Amended Disclosure Statement following the Bankruptcy Court’s approval thereof: a. to extend such Voting Deadline to permit the Additional Purchasers to fulfill their obligations under this Section 7.16) and (y) not object to support confirmation of the Amended Plan; b. to vote (i) all Junior Prepetition Indebtedness held or controlled, otherwise commence directly or indirectly, by such Supporting Junior Prepetition Lender and (ii) any and all Claims (as defined by section 101(5) of the Bankruptcy Code) against any member of the Almatis Group, now or hereafter owned, held or controlled, directly or indirectly, by such Supporting Junior Prepetition Lender to accept the Amended Plan (and any amendments, waivers, or consents required in connection with the Amended Plan) by timely delivering its duly executed and completed ballot (the “Plan Ballot”) following the commencement of the solicitation of acceptances of the Amended Plan and its actual receipt and review of the solicitation materials; c. not to withdraw, change, or revoke (or cause to be withdrawn, changed, or revoked) its vote with respect to the Amended Plan; d. not to pursue, propose, support, or encourage the pursuit, proposal, or support of any proceeding opposing any chapter 11 plan or other restructuring or reorganization for, or the liquidation of the terms of the Plan, or take any other action Almatis Group (directly or indirectly) ), that in any way prevents, delays, or impedes the restructuring of the Company as contemplated by the Plan (including in connection is inconsistent with the Claims Conversion Sub-Amended Plan); provided that each Additional Purchaser, including each of its Affiliates, shall support (directly and indirectly) confirmation of the Plan and shall not take any action to oppose the date of, or seek to reschedule, the Confirmation Hearing currently set by the Bankruptcy Court on August 31, 2010, which Confirmation Hearing is premised on all Classes of unsecured claims and Class J (each, as defined in the Plan) voting to accept the Plan; provided, further, that the Additional Purchasers, including their respective Affiliates, shall be permitted to object to confirmation of the Plan, and may change their votes to rejecting votes (and the Debtors and Investors expressly agree not to contest or oppose such change of votes), solely in the case of a Sustained Objection. In the case of a Sustained Objection prior to or on August 31, 2010, no Additional Purchaser, nor any of its Affiliates, shall take any action to oppose the date of, or seek to reschedule, the alternate Confirmation Hearing (the “Alternate Confirmation Hearing”) currently set by the Bankruptcy Court on September 28, 2010, which Alternate Confirmation Hearing is premised on a Class of unsecured Claims or Class J (each, as defined in the Plan) voting to reject the Plan; provided that, if a Sustained Objection occurs after August 31, 2010, the earliest date on which the Debtors shall seek to commence the Alternate Confirmation Hearing shall be thirty (30) days following the occurrence of the Sustained Objection, and each Additional Purchaser, and each of its Affiliates, shall actively support, and take no action to oppose, such commencement of the Alternate Confirmation Hearing as early as the thirtieth (30th) day following the occurrence of the Sustained Objection. Further, as of the date of the Third Amendment, each Additional Purchaser, including its respective Affiliates, will (a) withdraw, with prejudice, its appeal of the Order Authorizing the Debtors to Enter Into: (A) a Plan Support Agreement; (B) an Equity Commitment Agreement and to Pay Certain Fees in Connection Therewith; and (C) a Cash Recovery Backstop Agreement, dated June 17, 2010 [Docket No. 3427], including any motions to expedite the same (the “Appeal”); (b) withdraw with prejudice all discovery demands with regard to the Plan (including, without limitation, all interrogatories, requests to admit, requests for production of documents, notices of depositions, and all subpoenas and motions with respect to the same (collectively, “Discovery”)), and seek no further Discovery with respect to any party in the Proceedings, it being understood that, notwithstanding the withdrawal with prejudice, each Additional Purchaser, including its respective Affiliates, may reinitiate the Appeal and its Discovery following the occurrence of a Sustained Objection, it being further understood that if any Additional Purchaser, or any of its Affiliates, reinitiates the Appeal or objects to the Plan or changes its votes, the Additional Purchasers, including their respective Affiliates, shall be deemed to have relinquished their right to participate in the Additional Purchaser Commitment and their right to reimbursement for Additional Purchaser Expenses; and (c) at the request of the Company, and with the Company’s reimbursement of the reasonable, actual and documented fees and expenses (including reasonable, actual and documented attorneys’ fees) of the Additional Purchasers related thereto, provide affirmative support of the Plan at any confirmation trial by filing a pleading and orally specifically stating the Additional Purchasers’ affirmative support of the Plan, which request shall not be made in the case of a Sustained Objection. The Company and the Investors further agree to withdraw with prejudice all Discovery served against any Additional Purchasers or their advisors, it being understood that, notwithstanding the withdrawal with prejudice, the Company and the Investors may reinitiate such Discovery in the case of a Sustained Objection, it being understood that the Additional Purchasers can object to such Discovery. To the extent that any Person formally or informally, or the Bankruptcy Court sua sponte, objects to the Third Amendment or the Plan for any reason, no Additional Purchaser, nor any of their respective Affiliates, shall be, or shall be deemed to have been, released from its obligations pursuant to this Section 7.16 and the Company shall use commercially reasonable efforts to affirmatively support opposition to any such objection and the Investors shall not support any such objection; provided, to the extent that any Person’s objection, or the Bankruptcy Court’s sua sponte objection, to the Third Amendment is sustained only in connection with the payment of Additional Purchaser Expenses pursuant to Section 4.3(d), the Debtors shall use their commercially reasonable efforts to support, and the Investors shall not oppose, a section 503(b)(3)(D) substantial contribution request filed by the Additional Purchasers for the payment of Additional Purchaser Expenses pursuant to and subject to the conditions and limitations of Section 4.3(d), which, for the avoidance of doubt, will not include the payment of any fees or expenses in excess of the limitations on the amount of Additional Purchaser Expenses payable thereunder. Additionally, each Additional Purchaser agrees to comply with the terms of Sections 2.2 and 2.3 of the Plan Support Agreement as if such terms were incorporated herein mutatis mutandis, as if such Additional Purchaser were a Consenting Senior Noteholder thereunder and as if all references to “Relevant Claims” in Section 2.2 of the Plan Support Agreement included “Relevant Interests” (as such term is defined in the Plan Support Agreement). Other than as a result of a Sustained Objection, in the event of any amendment, supplement, change, or modification of the Plan, on file with the Bankruptcy Court as of August 6, 2010, that results in a material adverse change or modification to the treatment of Class J Interests (as defined in the Plan) under the Plan that requires re-solicitation under section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 or the rights and privileges of the Additional Purchasers under this Agreement (which rights and privileges are qualified by the terms of this Agreement), the Additional Purchasers shall have no further obligations or responsibilities under this Agreement, including, without limitation, Section 3.1 any restructuring, reorganization, or liquidation proceeding in any jurisdiction other than the United States of America; e. not to encourage any other person or entity to delay, impede, appeal, or take any other negative action, directly or indirectly, to interfere with the acceptance or implementation of the Amended Plan; f. not to commence any proceeding or prosecute, join in, or otherwise support any objection opposing confirmation or otherwise objecting to the Amended Plan; g. to support the Almatis Group in all desirable or necessary steps to secure the recognition of the Amended Plan in any jurisdiction for all entities to be bound thereby; h. to consent to, or take any other actions reasonably necessary for, the implementation of the Restructuring; i. to consent to, and Section 7.16support, unless the Additional Purchasers use by the Almatis Group of cash collateral, as that term is defined in that certain Cash Collateral Order, dated May 17, 2010 (Docket No. 113) or any similar order providing for the use of cash collateral on substantially similar terms, provided, however, that any such substantially similar order providing for the use of cash collateral need only provide their prior written consentsuch consent and approval rights to the Senior Lenders (as defined in the currently filed Plan) as may be agreed by the Almatis Group or ordered by the Bankruptcy Court; j. to negotiate in good faith with the Almatis Group regarding any and all definitive documents reasonably necessary to implement the Amended Plan. Notwithstanding the foregoing, nothing in this Plan Support Agreement shall be construed to (i) require any Supporting Junior Prepetition Lender or DIC to participate in any exit financing or (ii) prohibit any Supporting Junior Prepetition Lender or DIC from appearing as a party-in-interest in any matter to be adjudicated in the Chapter 11 Cases, as long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Plan Support Agreement and the Amended Plan and are not for the purpose of hindering, delaying, or preventing the consummation of the Amended Plan.”