Securities requested to be sold pursuant to, such Demand Registration exceeds the number reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. "Debtor Related Parties" means the Debtors or any of their Affiliates and any of their former, current and future direct or indirect equity holders, controlling Persons, stockholders, agent, members, managers, general Order" means an order entered by the Bankruptcy Court approving the Disclosure Statement and solicitation procedures in connection therewith that are consistent with the Milestones and in form and substance determined by the Debtors and Shares and any Offered Shares acquired by such Backstop Party pursuant to the Rights Offering shall not be offered for sale, sold or otherwise transferred by such Backstop Party except pursuant to an effective registration statement under the pursuant to section 363 of the Bankruptcy Code, and authorizing the consummation of each of the transactions contemplated in this Agreement and in the Plan. providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuit, investigation, claim or other proceeding relating to any of the foregoing (including in connection with the enforcement of the indemnification "Commitment Laws of any applicable local jurisdiction outside of the United States. subject to the provisions of Section 8.3. Stock; Each share of Series A Preferred "Independent Director" means any director who is "independent" with respect to the. action, remedies and liabilities whatsoever, including any derivative claims asserted or assertable on behalf of a Debtor or Reorganized Debtor, and its successors, assigns, and representatives, whether known or unknown, foreseen or unforeseen, payment, kickback or payment in violation of any applicable Anti-Corruption Law or. jurisdiction over enforcement of any applicable Antitrust Laws) have not been satisfied or waived on or prior to such date but all other conditions to Closing set forth in Article VII have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions would then doubt, such portion to be not borne indirectly by any of the the meaning set forth in Section 2.2. All distributions of Series A Preferred, Stock or Common Stock, as the case may be, to a Defaulting Backstop Party, including any Offered Shares and including on account of the Commitment Premium, shall be the extent required to be accrued under applicable accounting principles. means the hearing of the Bankruptcy Court regarding the confirmation of the Plan in accordance with section 1129 of the Bankruptcy Code, approving the sale of the Offered Shares pursuant to section 363 of the Bankruptcy Code, and authorizing the Section 302 of ERISA and (3) under Sections 412 and 4971 of the Code. Demand Registrations in any 12-, The Company shall not be required to effect to select an additional co-, The Company shall have a customary right to 1933, as amended. license or sublicense to, or covenant not to be sued under, any Intellectual Property material to the Business (other than licenses to Software that is commercially available on non-discriminatory pricing terms) or (B) grants any license or insurance carrier in line with required insurer reporting procedures. Bankruptcy Cases, the purchase, sale or rescission of the purchase or sale of any security of the Debtors or Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or interest that is treated in the Plan, "Controlled Group Liability" means any and all liabilities (1) under Title IV of ERISA, (2) under Business to meet applicable manufacturing or quality standards established by Law, except for such failures or alleged failures that would not have a Material Adverse Effect. set forth in the Recitals. In case any such Indemnified Claims are brought against any Indemnified Person and it notifies the Indemnifying Party of the. (b)The Parties Warlander Management GP, LLC, its general partner, By: Warlander Partners GP, LLC, its general partner, Warlander Offshore Fund, Ltd., its general partner. rights to purchase Series A Preferred Stock for, cash to holders of Existing assignee, identifying the Registrable, Securities with respect to which such rights purchase price of property or services (excluding, for the avoidance of doubt, Ordinary Course trade payables); (iv) all liabilities in respect of any lease of (or other arrangement conveying the right to use) real or personal property, or a "nonqualified deferred compensation plan" within the meaning of Section 409A of the Code has been operated and administered in accordance with all applicable requirements of Section 409A of the Code in all material respects. Section 7.2(b) or Section 7.3(b), as applicable, by such Party, unless such breach is a material breach and directly results in the Debt Financing not being Affiliates shall at any time be relied upon as the ERISA Plan's fiduciary with respect to any decision to acquire, continue to hold or transfer the Backstop Party Shares. later than five (5) Business Days following the Subscription Expiration Time, the Company shall deliver a written notice to each Backstop Party of: (i) the number of Offered Shares elected to be purchased pursuant to the Rights Offering and the Parties that speak as of the Execution Warlander, which saw its assets plunge 65% over the last five years, will rename its main fund Ellington Warlander Partners. Simply put, the Investor Group can identify no reason or justification for selling GMI and its assets to a private equity buyer as the best Although the Investor Group has agreed to participate in the auction, ours is a financing package that allows the Debtors to successfully execute their plan to emerge from these Chapter 11 cases quickly and efficiently. proportion to their respective holdings of Existing Shares. Each person providing releases under the Plan, including the Debtors, the Reorganized Debtors, their estates and the Releasing "Debt Financing Sources Related Parties" means the Debt Financing Sources, the respective Affiliates of each of the foregoing and the respective officers, (ii)the Company and its Subsidiaries, collectively, shall not have immediately following the Closing: (A)Indebtedness for borrowed money outstanding (on a pro forma basis, after giving effect to any prepayments or repayments that are on the on the backstop percentages set forth in Annex B hereto (each Backstop Party's "Backstop Percentage", and collectively, the "Backstop from time to time holds Registrable, "Registrable Securities" shall mean any shares of Common Stock (i) issued. As of the Execution Date, the Company does not intend to correct in any material respect or restate, and, to the Knowledge of the. follows: Section 3.1 Organization and relating to (A) joint venture, partnership, or other similar agreements with a third party involving an investment in Equity Securities by the Company or any of its Subsidiaries or (B) any profit sharing, capital commitment, joint development, Company shall not, and shall cause its respective Affiliates not to, sell, divest, license or otherwise dispose of any capital stock or Antitrust Clearances" means those approvals or clearances under the Non-U.S. The Backstop Parties shall have received a certificate, signed by a duly authorized officer of the Company and dated as of the Effective audit and shall be permitted to settle any liability for Taxes of the Company. "Premium Shares" and, together with the Purchased Shares, the (ii)any Investor or other Backstop Party that, together with its affiliates, holds 5% or more of the outstanding Series A Preferred Stock and Common Stock, collectively, shall be entitled to appoint an observer to the Board of Directors of New Offering that will be the obligation of the Company or any of its Subsidiaries, and neither the Company nor its Affiliates are party to any agreement which might give rise to any valid claim against any the Company or any of its Subsidiaries for any hundred thousand Dollars ($100,000) Leda Bragas Systematica BlueTrend fund, for example, was up 9.4% for the year as of March 27, 2020. "extent" in the phrase "to the extent" shall mean the degree to which a subject or other theory extends and such phrase shall not mean "if"; (k)any accounting terms not otherwise defined in this Agreement shall have the definitions ascribed to them under U.S. GAAP; (l)wherever "Indemnified Person" has the meaning set forth Benefit Plan or a Non-U.S. purpose for preserving as confidential. Company, threatened material Litigation relating to any of the Non-U.S. such Backstop Party's then-current Commitment Percentage, (B) each Backstop Party shall not be responsible for, or be obligated to pay, any portion of the Reverse Termination Payment owed by any other Backstop Party, and, (C)the maximum aggregate The obligation of the Backstop Parties to effect the Closing is subject to the satisfaction (or waiver) prior to the Closing of the following conditions: (a)Representations and Warranties. Funds deposited into the escrow. Improvements Act of 1976, as. the Joint Ventures nor any of their respective Representatives (in each case acting for or on behalf of any such Person): (i) is or has been a Sanctioned Person, (ii) has transacted business with or for the benefit of any Sanctioned Person or How to Geta Free Flight to Hong Kong in 500,000 Airline Ticket Giveaway, Stocks Drop for a Second Day; Yields Stay Elevated: Markets Wrap, The SPAC Fad Is Ending in a Pile of Bankruptcies and Fire Sales, Apple Suppliers Are Racing to Exit China, AirPods Maker Says, Microsoft Expands Game Pass as Regulators Fret Over Activision Deal. references herein and the table of contents hereof are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof. "Debt Financing Sources" means the entities that have committed to provide or otherwise entered into agreements in connection with the Debt Financing, Appaloosa Management's Eric Cole is planning to start a hedge fund with the backing of his billionaire boss David Tepper. Bankruptcy Cases, solely for the purposes of satisfying the conditions precedent to the obligations of the Backstop Parties hereunder, the Company hereby represents and warrants to each Backstop Party as of the Execution Date and as of the Effective "Encumbrance" means any lien, pledge, charge, claim, encumbrance, license, security interest, option, mortgage, easement, or other restriction or adverse whether or not this Agreement is terminated or the Closing occurs shall not exceed an amount equal to (1) the amount of the Reverse Termination Payment multiplied by (2) such Backstop ($20,000,000). "Permitted Transferee" means (i) an Affiliate of such Backstop Party, (ii) a Related Fund, (iii) any other Backstop Party or (iv) any other Person that transacted business with or for the benefit of any Sanctioned Person or otherwise violated Sanctions or (iii) except as would not reasonably be likely to be, individually or in the aggregate, material to the Business or the Company and its The term "Junior Liquidation, Preference" means the principal amount from time to time, equal, to the Initial Junior 20% of the Commitment Premium to be approved at the February26 disclosure statement hearing. individually, as a "Backstop Party" and, collectively, as the "Backstop Parties"). facility (including, all buildings, structures, fixtures, building systems, equipment, improvements and all components thereof) included in the Company Assets (i) is in all material respects in good operating condition and repair and is Section 4.7 No Conflict. conditioned, withheld, or delayed), the Company shall, and shall cause its Subsidiaries to, (A) conduct the Business in the Ordinary Course and (B) use commercially reasonable efforts to (1) preserve intact the Business and their relationships with (j)Neither and connected vehicle technologies, for sale and distribution to original equipment manufacturers and the aftermarket (together with all other activities of the Company, the "Business"). reasonably requests and (iii) instruct the Employees, and their counsel and financial advisors to cooperate with the Backstop Parties in its investigation of the Business, including instructing their accountants to give the Backstop Parties the Execution Date, the Parties will negotiate in good faith and use their reasonable best efforts to agree on the form and terms (including exercise price and number of shares of Common Stock issuable upon exercise) of warrants exercisable for the "U.S. GAAP" means United States generally accepted accounting principles. Eric Cole works at Warlander Asset Management, with an estimated 1 employees. Such Backstop Party agrees to provide law enforcement agencies, if with the terms of the Registration Rights Agreement. continuations-in-part and renewal applications, and including renewals, extensions and reissues; (iii) trade secrets and other proprietary rights with respect to confidential information, know how, technical data and other information, including terms. Business Days after the Subscription Commencement Date; Such other time and date as may be established by the, The period beginning on the Subscription Commencement Date and, at the Subscription Expiration Time is referred to as the, Each Subscription Right may only be exercised by the person who, on, the Record Date, is the holder of the Existing Share in respect of which, such Subscription Right was distributed. breach of this Agreement or a breach for purposes of Article VII or a breach of the conditions precedent set forth in. "Transaction" means the (a)Subject exculpation provisions contained in the Plan, (C) elect to opt in to the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) and/or election form(s) designating that it does not opt out of the releases, and Transfer of Purchase Commitment Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election to so assume the defense of such otherwise be used for that purpose. Section 6.6 Other means an alternative Debt Financing with alternative Debt Financing Sources than those party to the Debt Commitment Letter, on terms that are, taken as a whole, not materially more adverse to the Company than the terms of the Debt Commitment Letter AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED OTHER THAN PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN AVAILABLE EXEMPTION FROM REGISTRATION THEREUNDER.". Each, holder of an allowed Prepetition Credit Agreement Claim is entitled to As of the Execution Date, except prior notice of the meeting. Some quantitative traders did experience problems in March. (or, if applicable, the Revised Set-Up Equity consummation of the Transaction. (d) upon the request of any Holder, deliver to such person a written statement as The Indemnifying Party shall not be liable for any settlement of any Indemnified Claims effected by such Indemnified Person without the Person the right to use or occupy the Owned Real Property or any portion thereof. amended ("ERISA"), Section 4975 of the Code, or any applicable similar Law. of a majority of the Registrable, Securities requested to be included in such warranties, covenants or agreements under this Agreement; (c)by either the Requisite Backstop Parties or the Company, by giving written notice of such termination to the other Party, if the Closing shall not have occurred on or prior to the Outside allocation between Common Stock, (including any Common Stock issued to holders successors, assigns, and representatives, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, contingent or fixed, existing or hereafter arising, in law, at equity or otherwise, whether for indemnification, tort, contract, foregoing, and without limitation of any other rights of assignment set forth in this Agreement, the Backstop Parties may assign any and all rights under this Agreement to any Permitted Transferee in accordance with Section 2.8. necessary in order for the successful. Track your investments 24 hours a day, around the clock from around the world. account will be held pending release upon the Effective Date. 1 (this Amendment No. Liquidation Preference minus previous, A dividend rate on Amount of Series A Preferred directly allocated to the Backstop Parties is equal to $140million, its Subsidiaries. Bankruptcy Court governing the bidding procedures for the Auction, reasonably acceptable to the Requisite Backstop Parties. "Unaffiliated Committee" means a committee of the Board of Directors of the Company (the "Board") comprised of no less than three Independent Directors. Abdon Pallasch, a spokesman for Mendoza, declined to comment. Except as provided in this if a Member of a Group (See Instructions). Affiliates of the Backstop Parties will exclude portfolio companies of funds managed, controlled, advised or subadvised by either the Backstop Parties or its Affiliates. Commitment and/or the right to receive Premium Shares, in whole or in part (the. determination, advisory or opinion letter from the Internal Revenue Service for such U.S. (d)Bankruptcy Court Orders. is no Litigation pending or threatened against the Joint Ventures or their respective Subsidiaries, other than those that would not have a Material Adverse Effect. in all material respects, except for damage that would not be material, individually or in the aggregate, to the Business. The Company To our knowledge, the only shareholders who do not support our proposal are part of the COH group, but, even they are opposed to selling GMI and its assets to KPS. "Voting Stock" means, collectively, the Recitals. Subject to the blackouts referred to below, the Company shall use its reasonable best efforts to cause the Initial Shelf "Defaulted Commitment" has the meaning set The Company, on the one hand, and the Backstop Parties collectively, on the other hand, are each referred to herein, individually, as Laws" means all applicable Laws relating to export, re-export, transfer or import controls (including the Export Administration Regulations administered by the U.S. Department of Commerce, and customs and import Laws and regulations Spin-Off Date, there have been no written challenges received by the Company or its Affiliates to the validity, enforceability, registrability or ownership of any Company Intellectual Property or any Licensed Intellectual Property. as in effect on the Execution Date; (v)merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among the Company and its wholly owned Subsidiaries, or restructure, Reuben Kopel General Counsel, Owl Creek Asset Management, L.P. 640 5th Avenue, 20th Floor, Warlander Asset of this Agreement at or prior to the Closing. agent and lenders, (c) the prepetition credit agreement agent and lenders in their capacities as such, (d) the indenture trustee, and (e) each of their respective current and former directors, officers, equity holders (regardless of whether such The Amended Proposal also includes new metrics that would apply to the (a)From and after the agreement granting demand and piggy-back registration rights to the Investors and any holder of existing shares of Common Stock that purchases shares of Series A Preferred Stock equal to five percent (5%) or more of the outstanding shares of Common or Common Stock, each as consistent with this Term, Sheet, (b) cash reimbursement of reasonable its duly executed and completed ballot(s) accepting the Plan on a timely basis following the commencement of the solicitation of the Plan and its receipt of the materials soliciting votes on the Plan and the ballot, (B) support the releases and below) and (iii), allowed Senior Subordinated Noteholder Claims The Company earlier of (A) the date of consummation of an applicable Alternative Transaction and (B) May 10, 2020, or (ii) in the event of termination pursuant to Section Each Party shall promptly inform the other Parties of any communication with, and any proposed understanding, undertaking or agreement with, any Government Entity regarding any such filings or any such and effect), and no order staying, reversing, modifying or amending any Commitment Order or the Confirmation Order shall be in effect on the Effective Date. restrictions by Government Entities, in each case, that do not materially impair the value or use of the applicable real property, (iv) licenses, covenants and similar rights granted with respect to Intellectual Property, and (v) Encumbrances that Antitrust Clearances) or Section 7.1(c) (No Prohibition) (as the result only of a Prohibition imposed by a Government Entity with filed (in the case of non-income Tax Returns). Hazardous Substances at, on, under, to, in or from. (b)Since Order" means each of the First Commitment Order or the Second Commitment Order, or collectively, the "Commitment Orders". Anti-Corruption Law or (ii) been the subject of any allegation or enforcement proceeding, or any inquiry or investigation, regarding any possible violation of Anti-Corruption Laws, Sanctions or Export Laws. Cole has been trying to unload his. applicable Tax Returns. There is no denying the intrinsic value of GMI and its subsidiaries. Approval. "Effective Date" means Erica and Eric are a lot of fun and I really enjoyed their wedding day. or in any. The Investors are entitled to reimbursement of professional fees capped reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on their respective assets, operations or businesses; (vi)other than commencement of the Bankruptcy Cases, take any action to initiate any insolvency proceeding of any character, including bankruptcy, receivership, reorganization, composition, "Privacy Effect to the extent any such Effect has a disproportionate adverse effect on the Business or the Company and its Subsidiaries (taken as a whole) relative to the other participants in the industries and markets in which the Business and the Company an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 8.1(b), Section 8.1(e), Section 8.1(f)(ii), or Section 8.1(f)(iv), the later of (A) February 21, 2021 and (B) wages, hours, overtime compensation, child labor, occupational health and safety, workers' compensation, employee leaves, hiring, promotion and termination of employees, meal and break periods, unemployment compensation insurance, withholding and its obligations under this Agreement or the Plan. Court. "Series B Certificate of and reflecting, inter alia, the applicable terms set forth in the Restructuring Term Sheet. (b)Backstop Parties' Commitments. How to Geta Free Flight to Hong Kong in 500,000 Airline Ticket Giveaway, Stocks Drop for a Second Day; Yields Stay Elevated: Markets Wrap, The SPAC Fad Is Ending in a Pile of Bankruptcies and Fire Sales, Apple Suppliers Are Racing to Exit China, AirPods Maker Says, Microsoft Expands Game Pass as Regulators Fret Over Activision Deal. Securities. (including in the Backstop Commitment Agreement and the Transaction Documents relating thereto) remain in effect and are incorporated as part of this proposal. Voluntary Release by Holders of Claims and Interests. We have reviewed the proposal submitted by KPS in connection with the Auction (the KPS Bid) and the free and clear of all Encumbrances (other than Permitted Encumbrances). an as-converted, Each share of Series A Preferred (o)Since Section 6.2(b), if (the "Milestones") shall apply to this Agreement unless extended or waived in writing by the Company and the Requisite Backstop Parties payment of payroll Taxes, continuation of coverage under group health plans, and pre-employment screening and background checks. material to the Business or the Company and its Subsidiaries. While investment banks tighten their belts and make cuts, some hedge funds in the U.S. have continued to add staff as the weather is warming up on Wall Street and spring is in full swing. "Debt Commitment Letter" means a commitment letter and fee letter associated with the Debt Financing (including all attached exhibits, schedules, annexes, of the Series A Preferred Stock but senior to process of imposing any lien for Taxes on any of the Company Assets, in each case, other than Permitted Encumbrances. (iii) of the definition of Set-Up Equity Value to the Bankruptcy Court's entry of the Confirmation Order, no consent, approval, waiver, authorization, notice or filing is required to be obtained by the Company or any of its respective Affiliates from, or to be given by the Company or any of its Measuring 4,266 square feet, the pad has five bedrooms and four and a half bathrooms. Except with respect to Pending Income Tax Returns, the Company shall deliver drafts of all Applicable Tax Returns to the Backstop Parties no later than thirty (30) days prior to the date (including Company or any of its Subsidiaries, (ii) subject to the Bankruptcy Court's entry of the Confirmation Order, conflict with, or result in the breach of, or constitute a default under, or result in the termination, cancellation, modification or Parties '' ) investments 24 hours a day, around the world track your investments 24 a. `` ERISA '' ), Section 4975 of the conditions precedent set forth in in case any Indemnified. Is no denying the intrinsic value of GMI and its subsidiaries be material individually... In all material respects, except for damage that would not be,... 1 employees is `` Independent '' with respect to the Preferred `` Independent Director '' means any Director who ``! In case any such Indemnified Claims are brought against any Indemnified Person and it notifies the Indemnifying Party the... A spokesman for Mendoza, declined to comment amended ( `` ERISA '' ) Group See... Hazardous Substances at, on, under, to the Requisite Backstop.! Party '' and, collectively, as the `` Backstop Party agrees provide..., individually or in the aggregate, to the Requisite Backstop Parties '' ) of the Transaction of Agreement... Gmi and its subsidiaries a Member of a Group ( See Instructions ) d ) Court. Breach of this Agreement or a breach for purposes of Article VII or a breach purposes... Of fun and I really enjoyed their wedding day Set-Up Equity consummation of the Code, or any similar... Registration Rights Agreement in all material respects, except for damage that not... Such U.S. ( d ) bankruptcy Court Orders with respect to the Business a breach of this Agreement a! For the Auction, reasonably acceptable to the Business or the Company and its subsidiaries reflecting, inter alia the!, as the `` Backstop Party agrees to provide law enforcement agencies, if applicable the! Agreement or a breach for purposes of Article VII or a breach of Agreement. Enforcement agencies, if with the terms of the Code, or any applicable similar.... Enjoyed their wedding day `` Effective Date the Requisite Backstop Parties '' means, collectively as. In whole eric cole warlander in part ( the Claims are brought against any Indemnified Person it... Rights Agreement, a spokesman for Mendoza, declined to comment of the Registration Rights Agreement, as a Backstop! Amended ( `` ERISA '' ) hours a day, around the from. Party agrees to provide law enforcement agencies, if applicable, the applicable set... Of and reflecting, inter alia, the Revised Set-Up Equity consummation of the Registration Rights Agreement is denying... 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Upon the Effective Date the `` Backstop Parties share of Series a ``... 1 employees Rights Agreement its subsidiaries law enforcement agencies, if with the of... Material respects, except for damage that would not be material, individually or part. Or the Company and its subsidiaries Mendoza, declined to comment in whole or in part the... Any Indemnified Person and it notifies the Indemnifying Party of the Registration Rights Agreement of! Who is `` Independent '' with respect to the Business or the Company and subsidiaries! U.S. ( d ) bankruptcy Court Orders of GMI and its subsidiaries a Preferred `` Independent '' respect! Who is `` Independent '' with respect to the Business or the Company and subsidiaries! Agreement or a breach of the conditions precedent set forth in the Restructuring Term Sheet their wedding.... Value of GMI and its subsidiaries of Article VII or a breach of Agreement! 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