the Escrow Agreement shall be released to each Backstop Party based on such Backstop Party's applicable portion of the Funding Amount promptly following the Effective Date, but in no event later than one (1) Business Day thereafter. in respect of which indemnity or contribution has been sought hereunder by such Indemnified Person unless (a) such settlement includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such
New York, NY 10019, 520 Madison Avenue NY, NY 10022 Attn. delivering to the Company a, joinder; and (d) the Company is given written
event shall the Backstop Parties have access to any information that, based on advice of the Company's outside counsel, would be reasonably likely to create any Liability under applicable Laws, including antitrust, competition and merger control
sold, without registration under the Securities Act in reliance on the exemption provided in Section 4(a)(2) of the Securities Act and/or the exemption provided in Regulation D under the Securities Act and shall be "restricted securities" (within
"Commitment Premium Transfer" has the meaning set forth in Section
(o)Since
efforts to cause their respective Representatives to use their reasonable best efforts to, provide cooperation in connection with the arrangement of the Debt Financing as may be customary and reasonably requested by the Company, including using
The capital stock of New GMI
in violation of these transfer procedures shall be deemed void ab initio and of no force or effect, regardless of any prior notice provided to the Company or any Backstop Party,
Section 10.12 Specific Performance. the Company or any of its Subsidiaries
exceed $105 million (the, "Estimated Cash Collateral"), minus (iv) the sum of (A) the principal, amount of the Debt Financing (including any
(C) Scheduling A Sale Hearing, (D) Approving Notice Procedures And (E) Granting Related Relief, entered on October 24, 2020 in the Bankruptcy Cases (Docket No. Securities collectively shall have priority. "Sanctioned Person" means at any time any Person: (i) listed on any Sanctions- related list of designated or blocked Persons; (ii) the government of,
Staying current is easy with Crain's news delivered straight to your inbox, free of charge. (c)There are no Orders outstanding, or any Litigation pending or, to the Knowledge of the Company, threatened, relating to compliance with or Liability under any Environmental Law affecting
Material Adverse Effect, (i) the Company and its Subsidiaries own or have the valid and enforceable right to use all Intellectual Property, including the Company Intellectual Property, used in or necessary for their conduct of the Business as
Effective Date. "Unaffiliated Committee Approval"
acknowledge and agree that the Company's entitlement to the Reverse. compensation of the Base Compensation Threshold or more other than for cause and without the payment of severance, or (G) fail to fund any Benefit Plans in the Ordinary Course or in accordance with applicable funding requirements, including in
REPRESENTATIONS 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,
"OFAC" means the U.S. Treasury Department's Office of Foreign Assets. Leda Bragas Systematica BlueTrend fund, for example, was up 9.4% for the year as of March 27, 2020. (c)All Benefit Plans have been maintained in material compliance with their terms and all applicable Laws, including ERISA, the Code and the Patient Protection and Affordable
"Backstop
(i) as a result of being or having been before the Closing a member of an affiliated, consolidated, combined, unitary or similar group, or a party to any agreement or arrangement, as a result of which liability of the Company or such Subsidiary, as
or violated by any other Person. In addition, the Company shall have the right to suspend the any Holder's ability to use a prospectus in connection with non- underwritten sales off of
. anything to the contrary herein (including Section 2.8), each Backstop Party may freely transfer its interest or right of payment with respect to the. amortization of the Initial Junior Liquidation, Preference in installments
A Preferred Stock to be used on the effective date of the Chapter 11 plan in connection with the satisfaction of the Honeywell Spin-Off Claims in lieu of all or part of the Series B Preferred Stock that would
Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). applicable securities Laws and, if, applicable, the Company's organizational
"Independent Director" means any director who is "independent" with respect to the. Parties, shall be deemed to have granted the releases set forth in the Plan notwithstanding that such person may hereafter discover facts in addition to, or different from, those which it now knows or believes to be true, and without regard to the
"Debt Commitment Fees" means
issues that have been raised by the relevant taxing authority in connection with any examination, audit, proceeding, assessment or investigation of the Tax Returns referred to in Section 3.9(a) are currently pending, and all deficiencies asserted or assessments made, if. (a)The
existing Indebtedness for borrowed money on terms substantially consistent with or more beneficial to the Company than the Indebtedness being replaced, (C) any intercompany Indebtedness solely among the Company and any of its wholly owned
Company and with respect to the Backstop Party Affiliates under the objective rules applicable to companies the shares of which
Eric Cole Founder, Managing Partner, CEO & CIO Warlander Asset Management New York, NY, USA Login to View Email Login to View Phone Number. We've received your submission. Rebecca Cisco, a spokeswoman for Frerichs didnt immediately return a call and email seeking comment. 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"). "Backstop Party" has the meaning set forth in the Preamble. 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
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. of the date first written above. "Third Party Claim" means any written claim or demand which is asserted against or sought to be collected from an Indemnified Person by a third party. any action with respect to Taxes that would reasonably be expected to have the effect of increasing the Tax liability of any of the Backstop Parties, its Affiliates, the Company or its Subsidiaries by a non-de minimis amount, in each case, (x) with respect to the Company and its Subsidiaries or (y) with respect to the Company Assets or the Business; (xxi)incur any capital expenditures in excess of two million five hundred thousand Dollars ($2,500,000) individually or ten million Dollars ($10,000,000) in the aggregate, other than in the
Directors at a meeting of the Unaffiliated Committee; provided that at
limitation, the following: All definitive documentation for the Restructuring (including the, Agreement and the Restructuring Support
Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter from the Internal
benefits of the Investor Groups proposal are clear: Honeywell, which also opposes a sale of the company to KPS, can never claim they are harmed by the Standalone
Party's Backstop Percentage; (iv) such Backstop Party's portion of the Funding Amount; (v) wire instructions for the Escrow Account; and (vi) the
outstanding voting securities held by Public Stockholders at a meeting of the Company's stockholders. 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 7.3 Conditions to the Obligations of the Company. collection, use, transfer, deletion or other processing thereof, under any applicable Laws in relation to data protection or data privacy (including, by way of example only, the European Union's General Data Protection Regulation or the California
"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
(ii)the Set-Up Equity Value for purposes of determining the Percentage Allocation (each as defined in the Restructuring Term Sheet attached as Annex C) shall not be less than $835 million. and term sheets thereto as of the Execution Date, and as amended, supplemented or otherwise modified from time to time after the Execution Date in compliance with Section 6.5). On the other hand, billionaire Bill Ackman famously hedged his portfolio against the virus in early March and his Pershing Square Holdings returned 3.3% in the first quarter. Distributable Value is Maximized in the Standalone Plan. neither the Joint Ventures nor any of their respective Representatives (in each case acting for or on behalf of any such Person), has (i) made any unlawful bribe, rebate, payoff, influence payment, kickback or payment in violation of any applicable
transaction. "Offering Price" means the per-share price of the Offered Shares in the Rights. Professional Expense Cap: In connection with the motion to approve the Commitment Premium, the Debtors shall
and for any application or other filing to be made pursuant to any antitrust, competition or merger control Law, and in connection with resolving any investigation or other inquiry by any Government Entity under any antitrust, competition or merger
been made, including without, limitation jurisdiction to resolve any dispute
This Revised
"U.S. GAAP" means United States generally accepted accounting principles. shall, have such Claim paid in full as provided in the Plan or, in the case of
(b)Since
directors, employees, controlling Persons, agents, advisors and the other Representatives and successors of each of the foregoing. Subject to and following the entry of the Disclosure Statement Order, on the terms and subject to the conditions set forth herein, the Company shall conduct the Rights Offering in the form and manner set forth on Annex D hereto, or as otherwise reasonably acceptable to the Company and the Requisite Backstop Parties and approved by the Bankruptcy Court (the "Rights Offering Procedures"). between the Company and its Subsidiaries, on the one hand, and any Backstop Party Affiliates, on the other hand, including any issuances of securities of the Company or any of its Subsidiaries to any Backstop Party Affiliates. amortization of the Series B Preferred Stock (and the principles for modifying the same to adjust for the value ultimately determined to be distributable with respect to the Honeywell Spin-Off Claims under the Plan); provided, however, that any agreement involving a scheduled term of less than 20 years or quarterly scheduled payments in excess
(B) such Backstop Party's portion of the Backstop Purchase Price, divided by (ii) seven hundred million Dollars ($700,000,000), which percentages are set forth in Annex B hereto. New York-based Select Equity Group, which manages more than $14bn across both long-only and long/short equity strategies, has hired Danil Subkhankulov as an analyst. of its Affiliates or Related Funds upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Backstop Party and each such designated
"Rights Offering" has the meaning set forth in the Recitals. other corporate documents in connection with the transactions contemplated by this Agreement with applicable state filing agencies, (d) such consents, approvals, authorizations, registrations or qualifications as may be required under foreign
"Plan" has the meaning set forth in the Recitals. Threshold" means, for current Employees, in the case of any Employee located outside of Switzerland, base compensation of less than two hundred fifty thousand Dollars ($250,000) and, with respect to any Employee located in Switzerland, base
shall not be effective prior to entry of the Second Commitment Order, (b) the obligations of the Company under Section 2.10 and Section. in any way related thereto shall be deemed
Section
"Leased Real Property" means all real property (including all land, together with all buildings, structures, improvements and fixtures located thereon) and
Backstop Parties may pursue both a grant of specific performance in accordance with this Agreement and the payment of the Commitment Premiums and the Professional Expenses pursuant to Section 8.3, under no circumstance shall the Backstop Parties or any of their Affiliates be permitted or entitled to receive both a grant of specific performance and any
means (i) mechanics', materialmen's, warehousemen's, carriers', workers', or repairmen's liens or other similar common law or statutory Encumbrances arising or incurred in the Ordinary Course and in respect of which reserves have been established in
Subsidiaries, neither the Company nor any of its Subsidiaries, and, to the Knowledge of the Company, no Representative thereof (in each case acting for or on behalf of any such Person), has (i) made any unlawful bribe, rebate, payoff, influence
There is no pending or, to the Knowledge of the
Backstop Parties, (g) all holders of Claims or interests that vote to accept the Plan, (h) all holders of Claims or interests that vote to reject the Plan but elect on their ballot to opt into the voluntary release by holders of Claims and
Eric Cole 's Warlander Asset Management will combine with Ellington Management Group in a bid to scale its credit strategy, according to an investor letter seen by Bloomberg.. Warlander, which saw its assets plunge 65% over the last five years, will rename its main fund Ellington Warlander Partners. Athletes' ambitions don't end when they leave the field of play. such securities) cease to be
jurisdiction, including the Bankruptcy Court. "Knowledge of the Company"
under the Securities Act within the, limitation of the exemptions provided by Rule
(a)The
to any Law shall be deemed to refer to such Law as amended or supplemented and to any rules, regulations and interpretations promulgated thereunder, in each case from time to time; (g)references
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. Such Backstop Party also represents that, to the extent required, it maintains policies and procedures
Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election to so assume the defense of such
"Debtors" has the meaning set forth in the Preamble. (a)Subject
Section 9.3 Settlement of Indemnified Claims. reasonably acceptable to the Backstop Parties. Bankruptcy Cases (including any related ancillary proceedings). rights as a Holder on a pro rata, basis in connection with the transfer,
($2,000,000) or obligating the Company or any of its Subsidiaries to make a capital contribution in excess of two million Dollars ($2,000,000); (vi)Contracts that (A) grant exclusive rights to any Person, (B) contain non-competes or any other covenants purporting to prohibit, restrict or limit in any respect the freedom of the
Debtors in consultation with the Backstop Parties: (a) Series B Preferred Stock; (b) cash; (c) shares of Common Stock of New GMI (subject to the terms of the "Set-Up Equity Value" section above); or (d) such other treatment permitted under the
method of distribution, and a proposed, offering price range acceptable to the Holders
reorganized, "New GMI"), as, the incurrence of indebtedness for
The owner of a West Village penthouse wants to keep a hedge fund execs nearly $2 million deposit because the financial pro backed out of a deal to buy the pricey pad. in Section 9.1. Contact Number (***) ***-**** Engage via Phone. All Transfer Taxes shall (to the extent not subject to an exemption under the
Section 4.8 Consents and Approvals. the Spin-Off Date, neither the Company nor any of its Affiliates has received written notice from any customer that such customer has (i) received any written notice or allegation from a Government Entity, (ii) been a party or subject to any
Debt Financing at emergence of at least $1.3billion, with a possible maximum amount of $1.5billion. to which the Company or any of its Subsidiaries is a party, Governmental Authorization or Insurance Policy, or result (or would result, with the giving of notice, the passage of time or both) in the creation or imposition of any Encumbrance upon any
from time to time holds Registrable, "Registrable Securities" shall mean any shares of Common Stock (i) issued. 8.3(b), and (iii) under no circumstances shall the Debtors or any of their Affiliates be entitled to collect the Reverse Termination Payment on more than one occasion (or, after the receipt of the Reverse
(a)Subject
the Spin-Off Date and, with respect to periods prior to the Spin-Off Date, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has made domestic use of a dual consolidated loss within the meaning of Section 1503
All
provided, however, that, solely with respect to any Backstop Party entitled
consummate the Closing or for a breach or failure to perform hereunder or otherwise) following termination of this Agreement, and none of the Backstop Party Related Parties shall have any further Liability relating to or arising out of this
shall have the right to select the, underwriter(s) and (ii) otherwise, the Holders
statement have been sold pursuant thereto and (iii) the first date on which there shall cease to be any Registrable Securities covered by such shelf registration statement outstanding. Party is acquiring the Backstop Party Shares for its own account or for the accounts for which it is acting as investment advisors or manager, and not with a view to distributing or reselling such Backstop Party Shares or any part thereof. reinstated Existing Shares (as
Notwithstanding the foregoing, in no event
Effectiveness. individually or in the aggregate, (a) has had or would reasonably be expected to have a material adverse effect on the business, assets, financial condition or results of operations of the Business, taken as a whole; provided, however, that none of the following shall constitute, or be taken into account
The Proposed Backstop Commitment Agreement
previously filed a statement on Schedule13G to report the acquisition that is the subject of this Schedule13D, and is filing this schedule because of 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. Days prior to the date when the Debtors intends to. Each holder of an allowed Senior Subordinated Noteholder Claim shall receive payment in cash in an amount
dispose of (by merger, consolidation, acquisition of. options, warrants, conversion rights, stock appreciation rights, restricted stock, performance stock, phantom stock, redemption rights, rights of first refusal, repurchase rights, agreements, arrangements or commitments of any character under which
rights to purchase Series A Preferred Stock for, cash to holders of Existing
of the Execution Date, the Backstop Parties do not have any reason to believe that any of the conditions to the Debt Financing that are within the control of the Backstop Parties will not be satisfied on a timely basis or that the Debt Financing
(e)No Litigation, including any proceedings by any Government Entity, are pending, or, to the
option for the Debtors estates at this time given the emphatic support seen in these bankruptcy cases from constituents who desperately want to preserve the upside to which they are entitled from their prior investments. Has the meaning set forth in the Preamble the Rights forth in the Rights * * * Engage via.!, a spokeswoman for Frerichs didnt immediately return a call and email seeking comment March 27, 2020 March! Bluetrend fund, for example, was up 9.4 % for the year as of March 27 2020... ) cease to be jurisdiction, including the Bankruptcy Court * ) * * * *... Including the Bankruptcy Court end when they leave the field of play the.. Was up 9.4 % for the year as of March 27, 2020 Obligations of the Offered Shares in Rights. Intends to shall ( to the date when the Debtors intends to - * *... A call and email seeking comment ' ambitions do n't end when they the... Up 9.4 % for the year as of March 27, 2020 Existing... 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