EXHIBIT 10.1
CAPSTONE GREEN ENERGY CORPORATION
Transaction Support Agreement
This Transaction Support Agreement (together with the exhibits and schedules attached hereto, as each may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof, the “TSA” or this “Agreement”),1 dated as of September 28, 2023, is entered into by and among the following parties:
(ii) | Broad Street Credit Holdings LLC (the “Purchaser”) as the undersigned holder of claims (the “Pre-Petition Secured Claims”) arising under that certain Amended and Restated Note Purchase Agreement, dated as of October 1, 2020 (as amended, restated, modified, supplemented, or replaced from time to time, the “Note Purchase Agreement”), by and among Goldman Sachs Specialty Lending Group, L.P. (in such capacity, the “Collateral Agent”), the Purchaser, the Debtors and other parties thereto. |
This Agreement collectively refers to the Debtors and the Purchaser as the “Parties” and each individually as a “Party.”
RECITALS
WHEREAS, the Parties have in good faith and at arms’ length negotiated and agreed to certain restructuring transactions (the “Restructuring”) on the terms set forth in this Agreement and as specified in the joint chapter 11 plan for the Debtors in the form and substance attached hereto as Exhibit A (as amended, supplemented, or otherwise modified from time to time in accordance herewith, the “Plan”) and incorporated herein by reference pursuant to Section 2 hereof, which Restructuring will be implemented through jointly administered voluntary cases commenced by the Debtors (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (as amended, the “Bankruptcy Code”), in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), in accordance with the Milestones set forth in Section 8 of this Agreement;
WHEREAS, as of the date hereof, the Purchaser holds no less than 100% of the outstanding Pre-Petition Secured Claims; and
1 | Unless otherwise noted, capitalized terms used but not immediately defined herein shall have the meanings ascribed to them at a later point in this Agreement or in the Plan (as defined herein), as applicable. |
NOW, THEREFORE, in consideration of the promises, mutual covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Parties, intending to be legally bound, hereby agrees as follows:
AGREEMENT
(a) | Capstone and the Capstone Subsidiaries will enter into an IP Assignment Agreement; |
(b) | All of Capstone’s liabilities and assets (other than the Capstone Turbine International Equity, Pre-Petition Secured Debt and obligations under the DIP Note Purchase Agreement and those liabilities and assets directly related to the Retained Assets and described in the Plan Supplement) shall be transferred to New Subsidiary; |
(c) | New Subsidiary shall issue the New Subsidiary Preferred Units and the New Subsidiary Common Units to Capstone; |
(d) | Capstone shall contribute all New Subsidiary Common Units to Capstone Turbine International; |
(e) | Capstone Turbine International shall contribute all assets held by Branch Office - UK to New Subsidiary; |
(g) | Capstone shall become a private company that shall continue to own the Retained Assets and the New Subsidiary Preferred Units and have no liabilities relating to, arising under or in connection with any Claims against, or Interest in, any Debtor; |
(h) | The Pre-Petition Secured Party shall receive one hundred percent (100%) of the equity interests in Reorganized PrivateCo in exchange for an agreed-upon portion of its Pre-Petition Secured Claim and, in its capacity as DIP Purchaser, an agreed-upon portion of its DIP Claim, in accordance with the terms of the Plan; |
(i) | Existing shareholders of Capstone shall receive one hundred (100%) percent of the Reorganized PublicCo Equity, subject to any dilution from any stock issued pursuant to the EIP, including the Key Individual Retention Shares; |
(j) | Reorganized PrivateCo and Reorganized PublicCo will enter into the License Agreement; and |
(k) | Reorganized PrivateCo and Reorganized PublicCo and/or New Subsidiary will enter into the Services Agreement. |
each of which shall be in form and substance acceptable to the Purchaser.
2 In computing any period of time prescribed or allowed under this Agreement, the provisions of Federal Rule of Bankruptcy Procedure 9006(a) shall apply.
(d) | no later than thirty-five (35) calendar days after the Petition Date, the Bankruptcy Court shall have entered the final order approving the DIP Facility, which order shall be in form and substance acceptable to the Purchaser; |
(e) | no later than thirty-five (35) calendar days after the Petition Date, the Bankruptcy Court shall have held the Confirmation Hearing and entered an order confirming the Plan and approving the Disclosure Statement (the “Confirmation Order”), which Confirmation Order shall be in form and substance acceptable to the Purchaser; |
(f) | no later than forty-two (42) calendar days after the Petition Date, the Plan shall become effective (the “Effective Date”); |
Each of the Milestones may be extended or waived with the express prior written consent of the Purchaser.
The Purchaser’s obligations under this Agreement are subject to the entry of the DIP Order (whether interim or final) approving the DIP Facility and use of cash collateral in form and substance acceptable to the DIP Agent, which shall be consistent in all respects with this Agreement, including the DIP Term Sheet.
Nothing in this Agreement and neither a vote to accept the Plan by Purchaser nor the acceptance of the Plan by Purchaser shall (w) be construed to prohibit Purchaser from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement or the Definitive Documents, or exercising rights or remedies specifically reserved herein, (x) be construed to limit Purchaser’s rights under any applicable agreement (including the Note Purchase Agreement), and/or applicable law or to prohibit Purchaser from appearing as a party-in-interest in any matter to be adjudicated in the Chapter 11 Cases, so long as, from the TSA Effective Date until the occurrence of a Termination Date, such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring, (y) impair or waive the rights of Purchaser to assert or raise any objection permitted under this Agreement in connection with any hearing on confirmation of the Plan or in the Bankruptcy Court, or (z) require the DIP Agent to increase the size of the DIP Facility or its commitments thereunder, including, without limitation, to fund costs or expenses incurred by the Debtors. For the avoidance of doubt, nothing in this Section 14 shall require Purchaser to (1) incur any expenses, liabilities, or other obligations, or to agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in unreimbursed expenses, liabilities, or other obligations owed to or by Purchaser, or (2) provide any information that it determines, in its discretion, to be commercially sensitive, confidential, or privileged.
An “Alternative Transaction” means (a) any proposal or offer from any person or any purchase, sale, issuance, acquisition, repurchase, exchange or other disposition of any assets, securities, assets, or indebtedness of the Debtors (including, without limitation, a merger or similar transaction involving the Debtors), in each case, other than as contemplated by the Plan, or (b) any refinancing, plan of reorganization or liquidation, proposal, offer, dissolution, winding up, liquidation, reorganization or other comprehensive restructuring involving the Debtors, in each case, other than the Plan.
Capstone Green Energy Corporation
Attn:John Juric, Chief Financial Officer
16640 Stagg Street
Van Nuys, CA 91406
Email: jjuric@CGRNenergy.com
with a copy to:
Katten Muchin Rosenman LLP
Attn: Mark D. Wood
Peter A. Siddiqui
525 West Monroe Street
Chicago, IL 60661-3693
Tel:(312) 902-5200
Email: mark.wood@katten.com
peter.siddiqui@katten.com
Sachs Specialty Lending Group, L.P.
Attn:Capstone Turbine Corporation, Account Manager
100 Crescent Court
Suite 1000
Dallas, TX 75201
Email: Matt.Carter@gs.com
Rob.chuchla@gs.com
gs-slg-notices@gs.com
with a copy to:
Cleary Gottlieb Steen & Hamilton LLP
Attn:Sean A. O’Neal
John Veraja
One Liberty Plaza
New York, NY 10006
Tel: (212) 225-2000
Email: soneal@cgsh.com
jveraja@cgsh.com
[Signatures and exhibits follow.]
IN WITNESS WHEREOF, this Transaction Support Agreement has been duly executed as of the date first written above.
BROAD STREET CREDIT HOLDINGS LLC
as Purchaser
By: /s/ Greg Watts
Name: Greg Watts
Title: Authorized Signatory
GOLDMAN SACHS SPECIALTY LENDING
GROUP, L.P.
as Collateral Agent
By: /s/ Greg Watts
Name: Greg Watts
Title: Authorized Signatory
[Signature Page to Transaction Support Agreement]
CAPSTONE GREEN ENERGY CORPORATION
By: ___/s/ John Juric_________________________
Name: John J. Juric
Title: Chief Financial Officer
CAPSTONE TURBINE INTERNATIONAL, INC.
By: ___/s/ John Juric_________________________
Name: John J. Juric
Title: Chief Financial Officer
CAPSTONE TURBINE FINANCIAL SERVICES, LLC
By: ___/s/ John Juric_________________________
Name: John J. Juric
Title: Chief Financial Officer
[Signature Page to Transaction Support Agreement]
Schedule 1 to Transaction Support Agreement
Debtor Subsidiaries
1. | Capstone Turbine Financial Services, LLC |
2. | Capstone Turbine International, Inc. |
Exhibit A to the Transaction Support Agreement
Plan
Exhibit B to the Transaction Support Agreement
DIP Term Sheet
Exhibit C to the Transaction Support Agreement
Preferred Units Term Sheet
Exhibit D to the Transaction Support Agreement
Exit Financing Term Sheet
Exhibit E to the Transaction Support Agreement
Form of Joinder Agreement
Form of Joinder Agreement
This joinder (this “Joinder”) to the Transaction Support Agreement (the “Agreement”),1 dated as of September 28, 2023, by and among (i) Capstone Green Energy Corporation (“Capstone”) and those certain additional subsidiaries of Capstone listed on Schedule 1 to the Agreement, on the one hand, and (ii) the Purchaser, on the other hand, is executed and delivered by [________________] (the “Joining Party”) as of [________________].
To the Joining Party at:
[JOINING PARTY]
[ADDRESS]
Attn:
Facsimile: [FAX]
EMAIL:
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date first written above.
1 | Each capitalized term used herein but not otherwise defined shall have the meaning ascribed to it in the Agreement. |
[JOINING PARTY]
By: ____________________________________
Name:
Title:
Holdings: $__________________ of Debt
Annex 1 to the Form of Joinder Agreement
Transaction Support Agreement