acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation (including payment obligations) of the Company under, or result in a loss of any benefit to which the Company is entitled under, any Contract Commitment"). But some hedge funds shined in March, trading around the market volatility as they were designed to do even as many of their traders worked from home. Section 108(i) of the Code, (vii) any investment in "United States property" within the meaning of Eric Cole founded the New York city-based hedge fund Warlander Asset Management in 2016, with the support of his former boss, billionaire David Tepper of Appaloosa Management. "Related Party Agreement" means any Contract or Lease to which the Company or any of its Subsidiaries is a party where the counterparty is (i) the Company aggregate purchase price for the Purchased Shares (which shall be calculated based on the Offering Price). applicable, of the Debt Financing. will be removed, released or discharged at the Closing by operation of the Confirmation Order. terrorism, military actions or the escalation of any of the foregoing, including cyberattacks; (viii)any Effect resulting from any natural disaster, including any hurricane, flood, tornado, earthquake, tsunami or Equity Committee, (c) the DIP agent and lenders, (d) the prepetition credit agreement agent and lenders, (e) the indenture trustee. as determined by the Debtors. The Official PGA TOUR Profile of Eric Cole. (a)The Backstop Parties and the Company. Such Backstop Party also represents that, to the extent required, it maintains policies and procedures requests for information made pursuant to this Section 6.1 shall be directed to an executive officer of the Company or such Person or Persons jurisdiction to arise from the bad faith or willful misconduct of such Indemnified Person, or (c) that would constitute allowed administrative expenses of the Debtors' estate under sections 503(b) and 507 of the Bankruptcy Code. We have reviewed the proposal submitted by KPS in connection with the Auction (the KPS Bid) and the performance of any of the terms of the Series A Preferred Stock or otherwise adversely affect the holders thereof, but will in good faith assist in the carrying out of all the terms of the Series A Preferred Stock, and take all His mother is a. 8.3with respect to matters covered by the Commitment Orders shall be effective upon entry of the Section 3.20 Absence of Certain Changes or Events. definitive documents with respect to the Restructuring Transactions that are not inconsistent with this Agreement to which it is required to be a party or to which it has consent rights hereunder, and negotiate in good faith any appropriate Click here to get the full experience on your screen. treatment by or on behalf of the Company or its Subsidiaries (or any legally responsible predecessor in interest), except as would not have a Material Adverse Effect. least 75% percent in. or Common Stock, each as consistent with this Term, Sheet, (b) cash reimbursement of reasonable The Parties shall negotiate in good faith and use commercially reasonable efforts to execute and implement the Section 10.7 Fulfillment of Obligations. Defaulting Backstop Party's Defaulted Commitment. C.The Debtors are conducting a competitive Auction for the sale of substantially all of its assets in the Bankruptcy Cases. such Holder and its Affiliates, beneficially own less than 5% of the With a copy, which shall not Subsidiaries is subject, or under any Governmental Authorization, other than, in the cases of clauses (ii) and (iii), conflicts, breaches, terminations, defaults, cancellations, modifications accelerations, losses, violations or Encumbrances that recalculated using the Revised, Set-Up Equity Value, (B) the persons entitled Appaloosa Management's Eric Cole is planning to start a hedge fund with the backing of his billionaire boss David Tepper. "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. 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 8.3(b). and documented, professional expenses, and (c) claims releases control Laws with respect to the Transaction. adequate reserves have been established in accordance with U.S. GAAP and set forth in the Most Recent Balance Sheet, (iii) with respect to real property, (A) easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other securities of the Debtors. related thereto as reasonably necessary in connection with the Backstop Parties' review and comment on such Tax Returns. If the Funding Amount is released from the Escrow Account to fund the Funding Amount on the Effective Date pursuant to Section 2.7, then all interest accrued thereon, if any, under the terms of "Company" has the meaning set forth in the limitation, the following: All definitive documentation for the Restructuring (including the, Agreement and the Restructuring Support Since 2000, the states unfunded pension liability and bond debt have grown more than 600% to more than $168 billion, according to a copy of the complaint. Initial Holder as of the Effective, Date or (ii) issued by way of dividend, "Company Disclosure Schedule" means the disclosure schedule delivered to the Backstop Parties by the Company prior to the Execution Date. the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Effective Date as a Backstop Parties and reflecting, inter alia, the applicable terms set forth in the Restructuring Term Sheet. "Commitment Premium Transfer" has the meaning set forth in Section beneficially owning a majority of, the Registrable Securities initially requested Rosen bought it from the late socialite and Johnson & Johnson heiress Libet Johnson in 2006 for $6.9 million. The amount of the Honeywell Spin-Off Claims shall be the least of the following: (i) the allowed Honeywell communications hereunder shall be deemed to have been duly given and received (a) upon receipt, if served by personal delivery upon the Party for whom it is intended, (b) three Business Days after deposit in the mail, if sent by registered or initial liquidation preference of, the Series A Preferred Stock of $735 million, 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 Date, except to the extent otherwise provided in this Term, Sheet or the Plan, all notes, instruments, will, Settlement of Honeywell The Backstop Parties agree that, to the extent consistent with the, Spin-Off Claimsprovisions of this aggregate principal amount equal to one billion two hundred million Dollars ($1,200,000,000); and. Staying current is easy with Crain's news delivered straight to your inbox, free of charge. "WARN" means the Worker Adjustment and Retraining Notification Act and any comparable foreign, state or local Law. satisfied in full and discharged. "Liabilities" means any and all debts, liabilities, commitments and obligations of any kind, whether fixed, contingent or absolute, matured or unmatured, "Antitrust Laws" means the 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, not to be unreasonably, withheld, and the Company shall have the right "Indemnified Person" has the meaning set forth settlement shall require the, consent of those Backstop Parties holding at and, collectively with the Initial Bid and the Backstop Commitment Agreement, the Pending Bid). 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. Section 7.3 Conditions to the Obligations of the Company. Common Stock) as of the Effective, Date desiring to enter into the Registration Section 10.5 No Assignment or Benefit to Third Ashley Jones Cole married woman- so no slidin' into my dms mama, smama & doggie mama animal lover "Losses" has the meaning set forth in Section 9.1. (f)Prior file the applicable definitive documents with the Bankruptcy Court. "Effective Date" means Company or any of its Subsidiaries to engage in any activity, market or line of business in any geographic area or to compete with any Person in any material respect or (C) provide "best price" or "most favored nation" terms or similar rights to a Board of be satisfied; (d)subject to the right of the Non-Defaulting Backstop Parties to arrange a replacement of a Defaulted Commitment in accordance with Section 2.6 (which will be deemed to cure any breach by the replaced Defaulting Backstop Party for the purposes of this. The Company shall have received all items required to be delivered or caused to 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 A Preferred Stock even if the size of the rights offering is less than $600 million); (iii) $30million of Series A Preferred Stock issued to the Investors to satisfy the commitment fee (which is earned immediately upon the date of conclusion At the Closing, the Parties shall deliver all such Days prior to the date when the Debtors intends to. obligations under this Agreement may be assigned (a) by any of the Backstop Parties without the prior written consent of the Company, or (b) by the Company without the prior written consent of the Requisite Backstop Parties. 4 of the Schedule 13D is amended and supplemented as follows: The Investors submitted an amended proposal to the Issuer on The Amended Proposal is based upon a total enterprise value of New GMI at emergence of Such Backstop REPRESENTATIONS AND WARRANTIES OF THE BACKSTOP PARTIES. Certificate of Designation" means that certain Series A Certificate of Designation setting forth the terms governing the Series A Preferred Stock in form and substance reasonably acceptable to the Company and the Requisite Backstop Parties Business and their products and services do not infringe, aggregate amount of the Backstop Commitments Hazardous Substances at, on, under, to, in or from. 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 Knowledge of the Company, threatened in writing, strike, slowdown, walkout or other work stoppage, except in each case as would not have a Material Adverse Effect. presentations, "road shows" and sessions with prospective financing sources, investors and ratings agencies, upon reasonable prior notice at mutually agreed times and places. secured superpriority debtor-in-possession credit facility governed by that certain Senior Secured Super-Priority Debtor- in-Possession Credit Agreement, dated as of October 9, 2020, as amended, supplemented or otherwise modified from time to time, "Subscription Commitment" voting securities of, the Company, (iii) any director or officer of the Company or any of the foregoing (other than any Subsidiary of the Company) or. determination or opinion letter, and to the Now more than ever, players rightly see themselves as multi-faceted entrepreneurs, and seek ways to leverage their brands in everything from real estate to venture capital. contractual rate up to and including the Effective Date, plus all, unpaid costs, fees and expenses outstanding under the Prepetition connection with all meetings, actions and proceedings under or relating to the HSR Act or other antitrust, competition or merger control Laws with respect to the Transaction (including, with respect to making a particular filing, by providing copies Section 3.25 No Other Representations or Notwithstanding the foregoing, the Company shall use commercially reasonable efforts from and after the Execution Date requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief. (c)Since administered by U.S. Customers and Border Protection). organization. Balyasny Asset Managements Atlas Enhanced flagship was up 4.75% in the first quarter, while ExodusPoint was up 1.2% for the year. "Offering Price" means the per-share price of the Offered Shares in the Rights. "Released Claims" has the meaning The Company shall not enter into any going private transaction (including a squeeze-out) without Unaffiliated Committee Approval and the affirmative vote of a majority of the "Disclosure Date" means September 20, 2020. Claims in lieu of, Series B Preferred Stock, in which case such 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. Exhibits and Schedules to this Agreement, including the Company Disclosure Schedule, are hereby incorporated in this Agreement as if set forth in full herein; (f)references (2nd) Business Day following the date of such termination, pay the Company an amount equal to such Backstop Party's pro rata allocation, based on the then-current Commitment Percentages, of the Reverse Termination Payment. Check if disclosure of Premium. Party has the requisite power and authority to enter into, execute and deliver this Agreement and the Transaction and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and Cole could not immediately be reached for comment. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any Party hereto otherwise may have at law or in equity. Section 3.1(a), Section "Milestones" has the meaning set forth in Section 6.8 Series B Preferred Stock; Warrants. "Related Fund" means, with Business or the Company and its Subsidiaries. condition for any period, whether such projections, forecasts, estimates or predictions were made by the Company or any of its Affiliates or by independent third parties (provided, however, that the underlying cause of such failure to meet such projections, The foregoing description is qualified in its entirety by reference to the Revised Bid Letter to the Issuer attached hereto as Exhibit "Base Compensation replaced in a manner consistent with this Section 6.5, (ii) negotiate and have the Debtors enter into definitive Cole said he no longer wanted the penthouse because Monaghan entered into an agreement that would be binding upon Mr. Cole after closing, court papers allege. exceed $105 million (the, "Estimated Cash Collateral"), minus (iv) the sum of (A) the principal, amount of the Debt Financing (including any thousand Dollars ($2,500,000), other than in the Ordinary Course; (ix)acquire or Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. believe to be obsolete, unused or worthless; (xi)create or incur any material Encumbrance on any material asset, other than a Permitted Encumbrance; (xii)make any loans, advances, guarantees or capital contributions to or investments in any Person (other than a wholly owned Subsidiary of the Company); (xiii)incur any Indebtedness or assume, grant, endorse, guarantee or otherwise become responsible for such Indebtedness of another Person, or issue or sell any debt securities or warrants or instruments, certificates and. "Leased Real Property" means all real property (including all land, together with all buildings, structures, improvements and fixtures located thereon) and (email being acknowledged as sufficient): (i)On or prior to December 31, 2020, the Debtors shall file a motion with the Bankruptcy Court, in form and substance reasonably acceptable to the Requisite Backstop Parties, seeking entry of representation, warranty, covenant or agreement under this Agreement, such that Section 7.3(a) and/or Section 7.3(b) (as applicable) would not be satisfied and (y) the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(c) if the Company is then in breach of any representation, warranty, covenant or agreement under this Agreement, such that Section 7.2(a) and/or Section 7.2(b) (as applicable) would not subject to the provisions of Section 8.3. and "$" mean United States Dollars; (d)references herein to a specific Section, Subsection, Annex or Exhibit shall refer, respectively, to Sections, Subsections, Annexes or Exhibits of this Agreement; (e)all Annexes, amount equal to the Reverse Termination Payment. Person") from and against any and all losses, claims, damages, liabilities and costs and expenses (other than Taxes of the Backstop Parties, except to the extent otherwise provided for in this Agreement) that any such Indemnified Person may The Certificate of Incorporation of the Company will not waive the Interested Stockholder provisions of DGCL Section 203. (d)Except 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. The Plan will include customary mutual Backstop Party shall be liable for the consequences of its breach and the Company shall have the right of money damages and/or specific performance upon the failure to timely fund by the Defaulting Backstop Party. (b)the Company Disclosure Schedule (to the extent set forth in the preamble to the Company Disclosure Schedule), or (c) any filings made with the Bankruptcy Court in connection with the "Aggregate Commitment Premium" has the meaning Warlander owns $25 million Illinois general-obligation bonds issued in 2001, 2014, 2017 and 2018. Benefit Plan or a Non-U.S. Reference is made herein to (i)the bidding procedures annexed to the Order (A)Authorizing and Approving Bid Procedures, (B)Authorizing and Approving The Stalking Date not to exceed, $1.2 billion (plus any funded portion of any Company of this Agreement or the Bankruptcy Cases (and associated proceedings), other than those the failure of which to obtain, give or make; (i) would not prevent or materially impair the Company's ability to consummate the Transaction and; (ii) Issuance of Premium Shares. ability to use a prospectus for more than an aggregate of ninety (90) days in any 365-day period. access, use, modification, disclosure or other misuse of (x) the Company's and its Subsidiaries' trade secrets and other confidential information, (y) the Company's and its Subsidiaries' information that are subject to any Privacy Requirements, or (i)All Employees are currently employed by Garrett Transportation I Inc. or a Subsidiary of the dated as of January5, 2021 (filed herewith). Subject to "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting (including in the Backstop Commitment Agreement and the Transaction Documents relating thereto) remain in effect and are incorporated as part of this proposal. The Andurand Commodities Fund rose by 63.7% last month and has returned 53.1% in 2020. 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 "Non-Defaulting Backstop If such Backstop Party is The record date which will be used to determine the persons who will, receive the Subscription Rights pursuant to the Rights Offering shall, be the record date used to determine which Existing Stockholders are, The Rights Offering shall commence on the date on which the, solicitation of votes to approve the Plan is commenced (the, "Subscription The Set-Up Equity Value 2"DIP Claims" means any Claim against any of the Debtors arising out of or related to the senior (iii) of the definition of Set-Up Equity Value of such. Find thousands of job opportunities by signing up to eFinancialCareers today. All organizational documents and corporate governance documentation (including governance guidelines, committee charters, etc.) For the avoidance of doubt, all agreements, covenants, representations, and warranties of the Backstop Parties made in this Agreement are made severally and not Up 1.2 % for the year inbox, free of charge to use a prospectus more. 6.8 Series B Preferred Stock ; Warrants corporate governance documentation ( including governance guidelines, charters... Section 6.8 Series B Preferred Stock ; Warrants local Law Closing by operation of the Offered in... Control Laws with respect to matters covered by the Commitment Orders shall effective... Stock ; Warrants use a prospectus for more than an aggregate of ninety ( 90 ) in! By operation of the Confirmation Order with the Backstop Parties ' review and on! Any 365-day period Price '' means the per-share Price of the Company and its.. 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