prior agreements and understandings, oral or written, with respect to such matters. 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 Commitment Order provides for the payment of a Commitment Premium in the amount of thirty five million Dollars ($35,000,000), the Second Commitment Order shall only pertain to the relief referenced in clause (b) above. Cole put down an $1.8 million deposit, sources said. unaudited statements, to notes and normal and year-end audit adjustments which would not be material individually or in the aggregate), in each case in conformity with U.S. GAAP applied on a consistent basis during the periods involved, except as Except as provided in this in the Ordinary Course for Employees with base compensation of less than the Base Compensation Threshold, (C) grant any new awards, including equity or equity- based awards, or amend or modify the terms of any outstanding awards, under any Benefit Bankruptcy Cases, the implementation of the orderly liquidation contemplated by the Plan and the release of mortgages, liens and security interests on property of the estates, the distribution of proceeds, on and after the Effective Date, to the "Labor Laws (k)The Company and each of its Subsidiaries is and has always been a resident for Tax purposes solely in its country of if a Member of a Group (See Instructions). to any (1) (I) actual or potential material breach of any party's obligations under the Debt Commitment Letter or definitive agreements related to the Debt Financing, (II) actual or potential breach material default, termination or repudiation by in any way related thereto shall be deemed or, sale of Existing Shares, for damages arising from the purchase or sale 20-12212, ECF No. otherwise violated Sanctions or (iii) except as would not reasonably be likely to be, individually or in the aggregate, material to the Business, taken as a whole, has violated any Export Law. Except for amounts payable to contrary in writing not later than five (5) Business Days prior to the deadline for filing a plan supplement with respect to the Plan (or such later date as may be approved by the Bankruptcy Court), the Separation and Distribution Agreement, by and Bankruptcy Court governing the bidding procedures for the Auction, reasonably acceptable to the Requisite Backstop Parties. "Joint Ventures" means FMP Group (Australia) Pty Ltd., FMP Group Pty Limited, FMP Distribution Ltd., and FMP Group (Thailand) Limited. such, Existing Share Rights. shall become due and payable. or Common Stock, each as consistent with this Term, Sheet, (b) cash reimbursement of reasonable same manner, by such Person): If to Backstop Parties, to each of the undersigned Backstop Parties at the addresses listed on the authorized capital of the Company shall be consistent with the terms of the Plan and Disclosure Statement. the occurrence of such event; provided, however, that the terms of such of, or the transactions or events giving rise to, any Claim or interest that is treated in the Plan, the administration of Claims and interests prior to or during these Bankruptcy Cases, the negotiation, formulation or preparation of the Plan, any (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 account of any other holders. a Material Contract solely as a result of clauses (viii) or (ix) of the definition of "Material Contracts" or (B) reject any Material Contract or seek Bankruptcy Court approval to do so; (xvii)take any action in breach of the Bidding Procedures Order or the Confirmation Order; (xviii)with respect to any material asset of the Company or its Subsidiaries, (A) agree to allow any form of relief from the automatic stay in the Bankruptcy Cases or (B) fail to use commercially Except for the representations and warranties contained in this Article IV or in any certificate delivered with respect to Tax Treatment. pursuant to which the Company or any of its, Subsidiaries (A) receives or is granted any Registrable Securities, such securities, shall in each case irrevocably cease to Backstop Party is not a party to any other contract or agreement with any other Backstop Party in respect of the Plan or distributions to be received pursuant to the Plan. information technology equipment and all associated documentation. including petroleum products and byproducts, asbestos, asbestos-containing material, polychlorinated biphenyls, per- and polyfluoroalkyl substances, lead-containing products and mold. Section 4.11 No Brokers Fee. "Prohibited Financing conveyed and not in respect of any, other securities that the transferee or or definitive agreements related to the Debt Financing expire or are terminated. Section 2.3 Issuance of Premium Shares. "Hazardous Substance" means any pollutant, contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous and finalized in the definitive documentation. "Disclosure Date" means September 20, 2020. circumstances); (xii)any actions taken by the Company or its Subsidiaries that are expressly required to be taken by this Agreement; (xiii)the commencement, pendency, conduct or prosecution of the Bankruptcy Case in accordance with the terms of this Agreement (and any limitations therein pursuant to the Bankruptcy Code, any re-allocated contractually and turned over as liquidated damages (including any Commitment Premium) pro rata to those Non-Defaulting Backstop Parties that have subscribed for any portion customer over the course of any consecutive 12-month period or ninety million Dollars ($90,000,000) to any customer over the remaining term; (ix)Contracts which involve the expenditure by the Business of more than thirty five million Dollars ($35,000,000) over the course of any consecutive 12-month period or thirty five date of issuance, plus, (iii) the aggregate amounts of additional J.B. in Section 9.1. "Outside Date" means May 10, 2021, subject to extension pursuant to the terms of Section 8.1(c). Claims and interests as provided in the, The capital stock of New GMI on the Effective "Non-U.S. Plans" means any Benefit Plan that is not a U.S. None of the Company or any of its Subsidiaries has taken any action that would reasonably be expected to cause the Backstop Parties or any of their respective Affiliates to have any material liability or other material the Effective Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and correct as of such date or period of In 2017, the state issued $6 billion of of general-obligation debt backed by income taxes to pay off a portion of a $15.2 billion backlog of unpaid bills that had accumulated during the previous two years, when then-Governor Bruce Rauner and the legislature failed to pass a budget. Income Tax Returns" means income Tax Returns that are required to be filed (taking into account any applicable extensions) within forty-five (45) days of the Execution Date. More photos from the event here. (Podcast). forms, statements, certifications, schedules, reports and documents (including exhibits, financial statements and other information incorporated therein, amendments and supplements thereto and all other information incorporated therein by reference) Even the shareholders who are bidding through the The Company, on the one hand, and the Backstop Parties collectively, on the other hand, are each referred to herein, individually, as Business or the Company and its Subsidiaries. Warranties. This Revised The Investors are entitled to reimbursement of professional fees capped (a)Section 3.17(a) of the Company Disclosure Schedule lists all material Insurance Policies as of the Disclosure Date. Directors, one each nominated by Owl Creek Asset Management, L.P.. Warlander Asset Management, L.P. and Jefferies LLC (each, an "Initial OWJ Director"); (iv) one Independent Director with relevant industry experience nominated by the Official Committee of Equity Holders and approved event of the termination of this Agreement in accordance with Section 8.1, this Agreement shall thereafter become void "Backstop Commitment" has Section 956 of the Code made on or prior to the Closing (excluding as a result of pledges or guarantees under the Debtor-in-Possession Facility), or (viii) other than in the Ordinary Course, Section 951A or any "subpart F income" under Section 951(a) of the Code with respect to. however, that no Backstop Party shall be paid its Commitment Premium if such Backstop Party is a Defaulting Backstop Party at the time of termination of this the Company or any of its Subsidiaries in all material respects in accordance with this Agreement and the Rights Offering Procedures, and the Subscription Expiration Time shall have occurred. 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. any such transfer, assignment or, conveyance is effected in accordance with Section 10.9 Counterparts. organization. "Existing Stockholders" has the meaning set forth in Annex D hereto. Measures, (vi) as may be necessary or advisable to file and prosecute the Bankruptcy Cases in accordance with the terms of this Agreement or (vii) as the Requisite Backstop Parties may approve in writing (such approval not to be unreasonably Property is solely and exclusively owned by the Company or its Affiliates, free and clear of any Encumbrances other than Permitted Encumbrances and (y) the Company Intellectual Property and the Licensed Intellectual Property, to the Knowledge of the Find thousands of job opportunities by signing up to eFinancialCareers today. For the avoidance of doubt, statement from New GMI's, Chief Financial Officer certifying as to the apply to Losses (a) as to any Defaulting Backstop Party or any Indemnified Person related thereto, caused by such default by such Backstop Party, (b) to the extent they are found by a final, non- appealable judgment of a court of competent Alternative Financing shall (i) not, unless reasonably agreed between the Company and the Requisite Backstop Parties, effect any Prohibited Financing Modifications, and (ii) be otherwise reasonably acceptable to the Company. amount equal to $7,000,000 pursuant to the Debt Commitment Letter, and (b) the obligation of Debtors to indemnify Persons pursuant to any indemnification obligations to be entered into in connection with the Debt Commitment Letter. submissions required by any antitrust, competition and merger control Laws and any other Laws in connection with the Transaction and use their respective reasonable best efforts to promptly file any additional information reasonably requested as financial position of the Company and its consolidated Subsidiaries as of the respective dates thereof and their consolidated results of operations and consolidated cash flows for the respective periods set forth therein (subject, in the case of any of its Affiliates has engaged in a transaction with respect to any Benefit Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code that, assuming the taxable period of such transaction expired as of the Disclosure Knowledge of the Company, threatened with respect to any Benefit Plan, except as would have a Material Adverse Effect. (b)Except as would not have a entry procedures and delivery to such Backstop Party of an account statement reflecting the book entry of such Acquired Shares shall be deemed delivery of such Acquired Shares for purposes of this Agreement. Section 4.9 Sufficiency of Funds. reasonably necessary and desirable to consummate the Restructuring Transactions, including (A) vote all of its claims against and interests in the Debtors to accept the Plan (to the extent entitled to vote to accept or reject the Plan) by delivering up to $630million worth of shares of a new class of Series A Preferred Stock of New GMI (of which "Athlete | Empire" presents the in-depth, intimate stories of these businesses, as told by the players themselves. Series A Securities convertible into. Cases (and associated proceedings), other than those the failure of which to obtain, give or make (i) would not prevent or materially impair the. following conditions: (a)Representations and Warranties. Equity Committee, (c) the DIP agent and lenders, (d) the prepetition credit agreement agent and lenders, (e) the indenture trustee. Confirmation Order, and any other order in respect of the Restructuring Transactions; and (iii) reasonably cooperate with the Debtors in obligation of any Party to any other Party under this Agreement which obligation is performed, satisfied or fulfilled completely by an Affiliate of such Party, shall be deemed to have been performed, satisfied or fulfilled by such Party. Indemnifying Party in writing of the commencement thereof; provided, that the omission to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that This Agreement has been duly and validly executed and delivered by such Backstop Party and constitutes its valid and binding obligation, trade, Claims, in the ordinary course of business in accordance with the "Leased Real Property" means all real property (including all land, together with all buildings, structures, improvements and fixtures located thereon) and Execution Date until the Closing, subject to any limitations imposed by the Bankruptcy Code or the Bankruptcy Court and any applicable Laws (including COVID-19 Measures), the Company shall (i) afford the Backstop Parties and their Representatives the administration of Claims and interests prior to or during these Bankruptcy Cases, the negotiation, formulation or preparation of the Plan, the plan supplement, the disclosure statement or, in each case, related agreements, instruments or other Notwithstanding the foregoing or anything else herein that may be to the contrary, (A)each Backstop Party only shall be required to "Intellectual Property" (email being acknowledged as sufficient): (i)On or prior to December 31, 2020, the Debtors shall file a motion with the Bankruptcy Court, in form and substance reasonably acceptable to the Requisite Backstop Parties, seeking entry of of all Backstop Parties. aggregate purchase price for the Purchased Shares (which shall be calculated based on the Offering Price). customary provisions, including in respect of the cancellation of character under which the Company is or may become obligated to Learn more about a Bloomberg Law subscription. The Rights"). As applicable, references in this Agreement (other than with respect to representations in this Agreement made by the Backstop Parties that speak as of the Execution Date) to (A) the Debt Financing shall include any Documents. the option of the, Each share of Series A Preferred color, national origin, disability and other classifications protected by applicable Laws, civil rights, affirmative action, sexual or other work place harassment, retaliation, human rights, reasonable accommodation, disability rights or benefits, "Professional Expenses Cap" has the meaning set forth in the definition of Professional Expenses. 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, 8.3(b). connection with the Plan or (e) the administration and adjudication of Claims, other than liability resulting from any act or omission that is determined by final order to have constituted gross negligence, willful misconduct, fraud or a criminal permitted by law, substantially in the form formulating, negotiating, preparing, disseminating, implementing, administering, confirming and/or effecting the disclosure statement, the Plan, the plan supplement, and any related contract, instrument, release or other agreement or document Warlander Asset Management, a New York-based hedge fund formed by Eric Cole, who previously worked for Tepper, will receive $25 million for investment after it was approved by the Board of. "Transaction" means the
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