UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report: February 21, 2023
(Date of earliest event reported: February 21, 2023 )
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Commission File Number
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Registrant; State of Incorporation;
Address and Telephone Number
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IRS Employer Identification No.
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Former Name or Former Address, if Changed Since Last Report: None
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) or 12(g) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on
which registered
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Revlon, Inc.
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Revlon Consumer Products Corporation
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Indicate by check mark whether each registrant is an “emerging growth company” as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter) in Rule 12b-2 of the Exchange Act.
* Revlon, Inc.’s Class A Common Stock began trading exclusively on the over-the-counter market on October 21, 2022 under the symbol REVRQ.
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Emerging Growth Company
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Revlon, Inc.
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Revlon Consumer Products Corporation
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If an emerging growth company, indicate by check mark if the registrants have elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item 1.01
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Entry into a Material Definitive Agreement.
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As previously disclosed, on June 15, 2022, Revlon, Inc. (“Revlon”)
and certain subsidiaries, including Revlon Consumer Products Corporation (“Products Corporation” and together with Revlon, the “Company”) (the Chapter 11 filing entities collectively, the “Debtors”), filed voluntary petitions
for reorganization under Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”). The cases (the “Chapter 11 Cases”)
are being administered under the caption In re Revlon, Inc., et al. (Case No. 22-10760 (DSJ)). The Debtors continue to operate their businesses as “debtors-in-possession”
under the jurisdiction of the Bankruptcy Court and in accordance with the applicable
provisions of the Bankruptcy Code and orders of the Bankruptcy Court.
Also, as previously disclosed, on December 19, 2022, Revlon, Products
Corporation, and certain of Revlon’s other direct and indirect subsidiaries (the “Company Parties”) entered into a Restructuring Support Agreement (the “Original RSA”) with certain of the Company’s prepetition lenders under the
previously disclosed 2020 BrandCo Credit Agreement and the Official Committee of Unsecured Creditors in the Debtors’ Chapter 11 Cases (together, the “Original Consenting Creditor Parties”) regarding restructuring transactions (such
transactions, collectively, the “Restructuring”) pursuant to a Chapter 11 plan of reorganization on the terms and conditions set forth in the RSA.
Also, as previously disclosed, on December 23, 2022, the Debtors filed
the Joint Plan of Reorganization of Revlon, Inc. and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 1253] (the “Original Plan”).
Also, as previously disclosed, on January 17, 2023, the Debtors entered
into an agreement (the “Original Backstop Commitment Agreement”) with certain of the Consenting BrandCo Lenders under the RSA (the “Original Equity Commitment Parties”), pursuant to which each of the Original Equity Commitment Parties
thereunder had agreed to backstop, severally and not jointly and subject to the terms and conditions in the Backstop Commitment Agreement, the Aggregate Rights Offering Amount (as defined in the Original Backstop Commitment Agreement).
Also, as previously disclosed, on January 17, 2023, as
contemplated by the Restructuring Support Agreement, the Debtors entered into the Debt Commitment Letter with the Debt Commitment Parties, pursuant to which the Debt Commitment Parties committed to fund up to $200 million in net cash proceeds to the
Debtors in connection with a new senior secured first lien term loan facility (the “Incremental New Money Facility”) upon emergence from Chapter 11. As consideration for
entering into the Debt Commitment Letter, the Debt Commitment Parties will receive a premium of 3.00% on their $200 million funding commitment payable in-kind in the form of additional loans added under the Incremental New Money Facility (the “Debt Commitment Premium”). If the Debt Commitment Letter is terminated, then under certain conditions set forth in the Debt Commitment Letter, the Debt Commitment Parties are
entitled to receive a termination premium of $6 million (3.00% of the $200 million commitment amount) in lieu of the Debt Commitment Premium.
Amended and Restated Restructuring Support Agreement
On February 21, 2023, the Company Parties entered into the Amended and Restated Restructuring Support Agreement (the “Amended RSA”) with the Original Consenting Creditor Parties and certain of the Company’s prepetition lenders under the previously disclosed 2016 Credit Agreement (as defined herein) (together with the
Original Consenting Creditor Parties, the “Consenting Creditor Parties,” and together with the Original Consenting Creditor Parties and the Company Parties, the “RSA Parties”). Capitalized terms not otherwise defined in this “Amended and Restated Restructuring Support Agreement” section of this Current Report on Form 8-K have the
meanings given to them in the Amended RSA which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
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Under the Amended RSA, the Consenting Creditor Parties have agreed, subject to certain terms and conditions, to support the First Amended Joint Plan
of Reorganization attached to, and incorporated into, the Amended RSA (the “Amended Plan”). Certain
holders of Claims will receive different treatment under the Amended Plan as compared to the Original Plan, as follows:
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OpCo Term Loan Claims. Each holder of OpCo Term Loan Claims (2016 Term
Loan Claims and 2020 Term B-3 Loan Claims against the OpCo Debtors) shall receive (a) its pro rata share of cash in the amount of $56 million or (b) if such holder makes or is deemed to make the Class 4 Equity Election, such holder’s pro rata
share of 18% of (i) the New Common Stock issued on the effective date of the Amended Plan (the “Effective Date”), subject to dilution by any New Common Stock issued in connection with the Equity Rights Offering (as defined below), including,
for the avoidance of doubt, any New Common Stock issued pursuant to the Backstop Commitment Agreement, in connection with any MIP Awards (as defined in the Amended Plan), and/or upon the exercise of the New Warrants (as defined in the Amended
Plan), and (ii) the Equity Subscription Rights; provided that holders of no more than $334 million of OpCo Term Loan Claims are permitted to elect to
receive cash;
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2020 Term B-1 Loan Claims. Each holder of 2020 Term B-1 Loan Claims shall
receive, either (a) a principal amount of Take-Back Term Loans equal to such holder’s Allowed 2020 Term B-1 Loan Claim or (b) an amount of cash equal to the principal amount of Take-Back Term Loans that otherwise would have been distributable
to such holder under clause (a);
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2020 Term B-2 Loan Claims. Each holder of 2020 Term B-2 Loan Claims shall
receive its pro rata share of 82% of (a) the New Common Stock issued on the Effective Date, subject to dilution by any New Common Stock issued in connection with the Equity Rights Offering, including, for the avoidance of doubt, any New
Common Stock issued pursuant to the Backstop Commitment Agreement, in connection with any MIP Awards, and/or upon the exercise of the New Warrants, and (b) the Equity Subscription Rights; and
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Other Claims. Except as indicated above, there have been no changes to
the treatment of other Claims under the Original Plan, including BrandCo Third Lien Guaranty Claims, Unsecured Notes Claims, General Unsecured Claims, Qualified Pension Claims, or Interests in Revlon.
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As previously disclosed, the Company Parties will conduct an Equity Rights Offering available to eligible holders of certain claims. Under the
Amended Plan, the Equity Rights Offering will be available to holders of OpCo Term Loan Claims and 2020 Term B-2 Loan Claims to raise up to $670 million in cash from the offer and sale of New Common Stock. The New Common Stock issued in the Equity
Rights Offering will dilute the New Common Stock distributed to holders of OpCo Term Loan Claims and 2020 Term B-2 Loan Claims on account of such Claims. The Equity Rights Offering will be fully backstopped by the Equity Commitment Parties (as
defined below), and a portion of the Equity Rights Offering will be reserved for the Equity Commitment Parties.
Pursuant to the Amended RSA and Amended Plan, the Company Parties will not pursue an Acceptable Alternative Transaction in the form of a sale of the
Company’s assets.
The Amended RSA provides that the Debtors shall achieve certain future milestones (unless extended or waived in writing), including:
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No later than February 21, 2023, the Debtors shall file with the Bankruptcy Court: (i) the Amended Plan; and (ii) an amended Disclosure Statement reflecting the Amended Plan;
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No later than February 22, 2023, the Bankruptcy Court shall have entered an order approving (i) the amended Disclosure Statement and (ii) the amended Backstop Motion;
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No later than February 28, 2023, the Debtors shall have commenced the solicitation of votes to accept or reject the Amended Plan;
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No later than April 4, 2023, the Bankruptcy Court shall have entered an order confirming the Amended Plan; and
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No later than April 18, 2023, the effective date of the Amended Plan shall have occurred.
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The commitments of the RSA Parties under the Amended RSA are substantially identical to the obligations under the Original RSA, as previously
disclosed. Each of the RSA Parties may terminate the Amended RSA (and thereby their support for the associated plan of reorganization) under certain circumstances, substantially consistent with the Original RSA.
The foregoing description of the Amended RSA is a summary only and is qualified in its entirety by reference to the full text of the
Amended RSA which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein. The representations, warranties and covenants contained in the Amended RSA have been made solely for the purpose of such agreement
and as of specific dates, for the benefit of the parties thereto. In addition, such representations, warranties and covenants (i) may have been qualified by confidential disclosures exchanged between the parties, (ii) are subject to materiality
qualifications contained in the agreements which may differ from what may be viewed as material by investors, and (iii) have been included in the agreements for the purpose of allocating risk between the contracting parties rather than establishing
matters of fact. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of actual facts or circumstances, and the subject matter of representations and warranties may change after
the date as of which such representations or warranties were made. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the agreements, which subsequent information may or
may not be fully reflected in the Company’s public disclosures. The Amended RSA is subject to approval by the Bankruptcy Court.
Amended and Restated Backstop Commitment Agreement
On February 21, 2023, as contemplated by the Amended RSA, the Company Parties entered into the amended and restated backstop commitment agreement
(the “Amended BCA”) with the Original Equity Commitment Parties and certain of the Consenting 2016 Lenders under the Amended RSA (together with the Original Equity
Commitment Parties, the “Equity Commitment Parties”), pursuant to which each of the Equity Commitment Parties has agreed to backstop, severally and not jointly and subject
to the terms and conditions in the Backstop Commitment Agreement, the upsized $670 million Equity Rights Offering (the “Upsized Aggregate Rights Offering Amount”), subject
to the Excess Liquidity Cutback (as defined below). Capitalized terms not otherwise defined in this “Amended and Restated Backstop Commitment Agreement” section of this Current Report on Form 8-K have the meanings given to them in the Amended Plan
and/or the Backstop Commitment Agreement, which are attached hereto as Exhibits 99.1 and 10.2, respectively, and are incorporated herein by reference.
The Amended BCA provides that (i) each of the Equity Commitment Parties will, subject to the terms and conditions in the Amended BCA, purchase its
agreed percentage (the “Backstop Commitment Percentage”) of the New Common Stock (as defined in the Amended Plan) representing the unsubscribed portion of the Subscription
Amount, (ii) each of the Equity Commitment Parties will, subject to the terms and conditions in the Backstop Commitment Agreement, purchase its agreed percentage of the New Common Stock representing the Direct Allocation Amount, and (iii) each of the
Equity Commitment Parties will, subject to the terms and conditions in the Amended BCA, subscribe for, and at the closing purchase, the New Common Stock offered to such Equity Commitment Party in connection with the Equity Rights Offering. As
consideration for entering into the Backstop Commitment Agreement, each Equity Commitment Party will receive, upon the closing of the Equity Rights Offering, its Backstop Commitment Percentage of a 12.5% equity commitment premium on the $670 million
aggregate amount of the initial funding commitments, which amount shall be payable in the form of New Common Stock at a price per share calculated at a 30% discount to Plan Equity Value. If the Amended BCA is terminated, then under certain conditions
set forth in the Amended BCA, the Equity Commitment Parties are entitled to receive an equity termination premium of $83.75 million in cash (representing 12.5% of the $670 million Revised Aggregate Rights Offering Amount).
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The shares of New Common Stock that will be issued to the Equity Commitment Parties under the Amended BCA (other than the shares of New Common Stock
issued in payment of commitment premiums and, for the avoidance of doubt, the shares of New Common Stock issued in respect of an Equity Commitment Party’s purchase of the New Common Stock offered to it in connection with the Equity Rights Offering)
will be issued in a private placement exempt from registration under Section 5 of the Securities Act pursuant to Section 4(a)(2) and/or Regulation D thereunder and will constitute “restricted securities” for purposes of the Securities Act.
To the extent that, as of the Closing Date (as defined under the Amended BCA), the sum of (i) unrestricted cash and cash equivalents of the loan
parties under the First Lien Exit Facilities and (ii) undrawn availability under the Exit ABL Facility (excluding the effect of any temporarily increased advance rates under the Exit ABL Facility that will not remain in effect through the maturity
date of such facility), exceeds $285.0 million (such excess, “Excess Liquidity”), then such Excess Liquidity will be applied, on a dollar for dollar basis, first, to reduce
the aggregate amount of the Equity Rights Offering on a dollar for dollar basis to not less than $650 million; second, in an amount of up to $12.0 million to pay the Debt Commitment Premium and Funding Discount (on a ratable basis) in cash; third, to
further reduce the aggregate amount of the Equity Rights Offering on a dollar for dollar basis to not less than $625 million; fourth, to reduce the amount of the Incremental New Money Facility on a dollar for dollar basis to the extent that the
aggregate amount of the First Lien Exit Facilities is no less than $1.275 billion; and fifth, 50% of any remaining Excess Liquidity to further reduce the amount of the Incremental New Money Facility and 50% of any remaining Excess Liquidity to
further reduce the amount of the Equity Rights Offering (collectively, the “Excess Liquidity Cutback”).
Additionally, certain amendments were made under the Amended BCA with respect to the circumstances under which the Equity Commitment Parties would be
entitled to receive the 12.5% termination premium.
The foregoing description of the Amended BCA is a summary only and is
qualified in its entirety by reference to the full text of the Amended Plan and Amended BCA, which are attached hereto as Exhibits 99.1 and 10.2, respectively, to this Current Report on Form 8-K and incorporated by reference herein.
DIP Plan Milestone Extension
In connection with the Chapter 11 Cases, Revlon, Products Corporation and certain of Revlon’s direct and indirect subsidiaries
entered into (i) the Super-Priority Senior Secured Debtor-in-Possession Asset-Based Credit Agreement, dated June 30, 2022, by and among Products Corporation, as the Borrower, Revlon, as Holdings, the lenders party thereto and MidCap Funding IV
Trust, as Administrative Agent and Collateral Agent (the “DIP ABL Credit Agreement”) and (ii) the Super-Priority Senior Secured Debtor-in-Possession Credit Agreement,
dated as of June 17, 2022, by and among Products Corporation, as the Borrower, Revlon, as Holdings, the lenders party thereto and Jefferies Finance LLC, as Administrative Agent and Collateral Agent (the “DIP Term Loan Credit Agreement” and together with the DIP ABL Credit Agreement, the “DIP Credit Agreements”).
On February 21, 2023, the Debtors amended (i) Section 6.20(g) of the DIP ABL Credit Agreement and (ii) Section 6.17(g) of the
DIP Term Loan Credit Agreement to extend the required milestone date (such milestone date, the “DIP Confirmation Milestone Date”) for the entry of an Acceptable
Confirmation Order (as defined in the DIP ABL Credit Agreement and the DIP Term Loan Credit Agreement) from April 1, 2023 to April 4, 2023.
On February 21, 2023, the Debtors amended (i) Section 6.20(h) of the DIP ABL Credit Agreement and (ii) Section 6.17(h) of the
DIP Term Loan Credit Agreement to extend the required milestone date (such milestone date, the “DIP Emergence Milestone Date”) for occurrence of the Plan Effective
Date (as defined in the DIP ABL Credit Agreement and the DIP Term Loan Credit Agreement) from April 15, 2023 to April 18, 2023.
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Item 7.01
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Regulation FD Disclosure.
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First Amended Plan and Amended Disclosure Statement
As previously disclosed, on December 23, 2022, the Debtors filed the
Original Plan and a related proposed form of Disclosure Statement (the “Original Disclosure Statement”) with the Bankruptcy Court. On February 21, 2023, the Debtors filed the Amended Plan and a related amended Disclosure Statement (the “Amended
Disclosure Statement”). The Amended Plan is intended to implement the Restructuring contemplated by the Amended RSA. The Amended Plan and the related Amended Disclosure Statement describe, among other things, the Amended Plan; the
Restructuring contemplated by the Amended RSA; the events leading to the Chapter 11 Cases; certain events that have occurred or are anticipated to occur during the Chapter 11 Cases, including the anticipated solicitation of votes to approve the
Amended Plan from certain of the Debtors’ creditors and certain other aspects of the Restructuring. The Amended Plan and Amended Disclosure Statement, as well as other court filings and information about the Chapter 11 Cases, can be accessed free
of charge at a website maintained by the Debtors’ claims, noticing, and solicitation agent, Kroll, at https://cases.ra.kroll.com/revlon/, or call (855) 631-5341 (toll-free in the U.S.) or +1 (646) 795-6968 (from outside the U.S.).
Although the Debtors intend to pursue the Restructuring in accordance with the terms set forth in the Amended Plan and the Amended
RSA, there can be no assurance that the Amended Plan will be approved by the Bankruptcy Court or that the Debtors will be successful in consummating the Restructuring or any other similar transaction on the terms set forth in the Amended Plan, on
different terms or at all. Bankruptcy law does not permit solicitation of acceptances of a proposed Chapter 11 plan of reorganization until the Bankruptcy Court approves a disclosure statement relating to the Amended Plan. Accordingly, neither the
Debtors’ filing of the Amended Plan and Amended Disclosure Statement, nor this Current Report on Form 8-K, is a solicitation of votes to accept or reject the Amended Plan. Any such solicitation will be made pursuant to and in accordance with
applicable law, including orders of the Bankruptcy Court. The Amended Disclosure Statement is being submitted to the Bankruptcy Court for approval but has not been approved by the Bankruptcy Court to date.
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Information contained in the Amended Plan and the Amended Disclosure Statement is subject to change, whether as a result of
amendments or supplements to the Amended Plan or Amended Disclosure Statement, third-party actions, or otherwise, and should not be relied upon by any party. Such amendments and supplements will also be available for review and free of charge
online at https://cases.ra.kroll.com/Revlon/. Such amendments and supplements may be filed with the Bankruptcy Court without the filing of an accompanying Current Report on Form 8-K. The documents and other information available via website or
elsewhere are not part of this Current Report on Form 8-K and shall not be deemed incorporated herein.
Copies of the Amended Plan and the Proposed Disclosure Statement are attached as Exhibit 99.1 and 99.2, respectively, to this
Current Report on Form 8-K. The foregoing description of the Amended Plan and Amended Disclosure Statement is a summary only and is qualified in its entirety by reference to the full text of the Amended Plan and the
Amended Disclosure Statement.
The information in this Item 7.01, including Exhibits 99.1 and 99.2, shall not be deemed to be “filed” for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing under the
Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act.
Cautionary Statement Regarding Forward-Looking Information
Certain statements in this Current Report on Form 8-K are “forward-looking statements” made pursuant to the safe-harbor provisions of the Private
Securities Litigation Reform Act of 1995, as amended. The Company’s actual results may differ materially from those anticipated in these forward-looking statements as a result of certain risks and other factors, which could include the following:
risks and uncertainties relating to the bankruptcy petitions, including but not limited to, the Company’s ability to obtain Bankruptcy Court approval with respect to motions in the bankruptcy petitions, the effects of the bankruptcy petitions on the
Company and on the interests of various constituents, Bankruptcy Court rulings on the bankruptcy petitions and the outcome of the bankruptcy petitions in general, the length of time the Company will operate under the bankruptcy petitions, risks
associated with third-party motions in the bankruptcy petitions, the potential adverse effects of the bankruptcy petitions on the Company’s liquidity or results of operations and increased legal and other professional costs necessary to execute the
Company’s reorganization; the conditions to which the Company’s debtor-in-possession financing is subject and the risk that these conditions may not be satisfied for various reasons, including for reasons outside of the Company’s control; the
consequences of the acceleration of our debt obligations; trading price and volatility of the Company’s Class A common stock as well as other risk factors set forth in the Company’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q filed
with the Securities and Exchange Commission. The Company therefore cautions readers against relying on these forward-looking statements. All forward-looking statements attributable to the Company or persons acting on the Company’s behalf are
expressly qualified in their entirety by the foregoing cautionary statements. All such statements speak only as of the date made, and, except as required by law, the Company undertakes no obligation to update or revise publicly any forward-looking
statements, whether as a result of new information, future events or otherwise.
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Item 9.01.
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Financial Statements and Exhibits.
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(d)
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Exhibits:
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Exhibit
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Description
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Amended and Restated Restructuring Support Agreement, dated February 21, 2023, by and among the Debtors and the Consenting Creditor Parties.
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Amended and Restated Backstop Commitment Agreement, dated February 21, 2023, by and among the Company and the Equity Commitment Parties.
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First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, dated February 21, 2023.
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Disclosure Statement for First Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code, dated February 21, 2023.
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104
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Exhibit 104 Cover page from this Current Report on Form 8‑K, formatted in Inline XBRL (included as Exhibit 101).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date: February 21, 2023
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REVLON, INC.
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By:
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/s/ Andrew
Kidd
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Name: Andrew Kidd
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Title: Executive Vice President, General Counsel
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REVLON CONSUMER PRODUCTS CORPORATION
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By:
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/s/ Andrew
Kidd
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Name: Andrew Kidd
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Title: Executive Vice President, General Counsel
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Exhibit 10.1
EXECUTION VERSION
This AMENDED AND RESTATED CHAPTER 11 RESTRUCTURING SUPPORT AGREEMENT (including all exhibits, annexes, and schedules hereto in accordance with Section 15.02, in each case, as may be amended, supplemented, or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”) is made and entered into as of February 21, 2023 (the “Execution Date”), by and among the following parties (each of the following described in
clauses (a) through (e) of this preamble, collectively, the “Parties”):1
(a) Revlon, Inc. (“Revlon”), a company incorporated under the Laws of Delaware, and each of its direct
and indirect subsidiaries that are debtors and debtors in possession in the Chapter 11 Cases listed on Exhibit A to this Agreement that have executed and delivered counterpart signature pages to this Agreement to counsel to the Consenting Creditor Parties (collectively, the “Debtors”);
(b) the holders of, or investment advisors, sub-advisors, or managers of discretionary accounts that hold, 2020 Term B-1 Loan Claims that have executed and delivered counterpart signature pages to the Original RSA, this Agreement, a Joinder, or a Transfer Agreement to counsel to the Debtors and
counsel to the Consenting Creditor Parties (collectively, the “Consenting 2020 B-1
Lenders”);
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Capitalized terms used but not defined in the preamble and recitals to this Agreement have the meanings ascribed to them in Section 1 or in the Plan attached hereto as Exhibit B.
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(c) the holders of, or investment advisors, sub-advisors, or managers of discretionary accounts that hold, 2020 Term B-2 Loan Claims that have executed and delivered counterpart signature pages to the Original RSA, this Agreement, a Joinder, or a Transfer Agreement to counsel to the Debtors and counsel to the Consenting Creditor Parties
(collectively, the “Consenting 2020 B-2 Lenders” and, together with the Consenting 2020 B-1 Lenders, the “Consenting BrandCo Lenders”);
(d) the holders of, or investment advisors, sub-advisors, or managers of discretionary accounts that hold, 2016 Term Loan Claims that have executed and delivered counterpart signature pages to the Original RSA,
this Agreement, a Joinder, or a Transfer Agreement to counsel to the Debtors and counsel to the Consenting Creditor Parties (collectively, the “Consenting 2016 Lenders” and, together with the Consenting BrandCo Lenders, the “Consenting
Lenders”); and
(e) the Official Committee of Unsecured Creditors appointed in the Chapter 11
Cases (the “Creditors’ Committee” and, together with the Consenting Lenders, the “Consenting
Creditor Parties”). For the avoidance of doubt, the Parties acknowledge that each individual member of the Creditors’ Committee is not a Party or a Consenting Creditor Party by reason of its membership or participation on the Creditors’
Committee and expressly reserves all rights and remedies with respect to its General Unsecured Claims or Unsecured Notes Claims and the Unsecured Notes Indenture, as applicable, without limitation hereby.
RECITALS
WHEREAS, on June 15, 2022 (the “Petition Date”),
each of the Debtors commenced a case (collectively, the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy
Court”);
WHEREAS, on December 19, 2022, the Debtors, certain of the Consenting BrandCo Lenders, and the
Creditors’ Committee entered into that certain Chapter 11 Restructuring Support Agreement (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Original RSA”), pursuant to which such
parties agreed to take certain actions to implement certain restructuring transactions with respect to the Debtors on the terms and conditions set forth therein;
WHEREAS, the Debtors, the Consenting BrandCo Lenders, the Consenting 2016 Lenders, and the
Creditors’ Committee have in good faith and at arm’s length negotiated certain modifications to the restructuring transactions with respect to the Debtors and settlements in respect of disputes among the
Parties on the terms set forth in this Agreement and as specified in the First Amended Joint Plan of Reorganization of
Revlon, Inc. and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code attached as Exhibit B hereto (as may be amended, supplemented, or otherwise modified from time to time pursuant to this Agreement, including all exhibits, schedules, supplements, appendices, annexes, and attachments thereto, the “Plan”);
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WHEREAS, Section 14(a) of the Original RSA provides that the Original RSA may be modified,
amended, or supplemented in accordance with its terms and subject to the consent rights set forth therein;
WHEREAS, pursuant to Section 14(a) of the Original RSA, the Debtors, the Required Consenting
BrandCo Lenders, and the Creditors’ Committee desire to amend, restate and replace in its entirety the Original RSA with this Agreement, and the Consenting 2016 Lenders desire to join this Agreement, in each case effective as of the Amendment
Effective Date; and
WHEREAS, the Consenting BrandCo Lenders party to the Original RSA shall remain and be bound by
this Agreement in all respects.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound, hereby agrees as follows:
1.01 Definitions. The following terms shall have the following definitions:
“Adversary Proceeding” means the adversary proceeding captioned AIMCO CLO 10 LTD, et al. v. Revlon, Incl., et al., Adv. Pro. No. 22-01167 (DSJ)
(Bankr. S.D.N.Y. Oct. 31, 2022).
“Adversary Stay and Dismissal Order” has the meaning set forth in Section 7.01(k) of this Agreement.
“Agreement” has the meaning set forth in the preamble hereof and,
for the avoidance of doubt, includes all the exhibits, annexes, and schedules hereto in accordance with Section 15.02 (including the Plan).
“Agreement Effective Period” means, with respect to a Party, the period from the Amendment Effective Date to the Termination Date
applicable to that Party.
“Alternative Restructuring Counterproposal Notice” has the meaning set forth in Section 9.02 of
this Agreement.
“Alternative Restructuring Proposal” means any inquiry, proposal, offer, bid, term sheet, discussion, or agreement with respect to a sale, disposition, new-money investment, restructuring, reorganization, merger, amalgamation, acquisition, consolidation, dissolution, debt investment, equity investment (including
any equity commitment or investment for which the Debtors have not received the prior written consent of the Required Consenting BrandCo Lenders),
liquidation, tender offer, recapitalization, plan of reorganization, share exchange, business combination, capital structure inconsistent with the Plan, or similar transaction involving any one or more Debtors,
or any material portion of any of their assets, in each case in whole or in part, or the debt, equity, or other interests in any one or more Debtors other than in accordance with or in furtherance of one or
more of the Restructuring Transactions.
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“Amendment Effective Date” means the date on which each of the conditions set forth in Section 2 has been satisfied
or waived by the appropriate Party or Parties in accordance with this Agreement.
“Breach Notice” means a written notice which shall (a) be delivered in connection with a purported breach of this
Agreement in accordance with this Agreement and (b) set forth the provision(s) under this Agreement pursuant to
which the purported breach has occurred and the purported grounds for the delivery of such notice.
“Business Day” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York.
“Canadian Recognition Proceeding” means the proceeding commenced before the Ontario Superior Court of Justice (Commercial List) pursuant to the Companies’ Creditors Arrangement Act to recognize the Chapter 11 Cases in Canada.
“Cash-Out Backstop Lenders” means, collectively, the Specified Cash-Out Backstop Lenders
and the Consenting 2016 Lenders managed or advised by (a) Angelo, Gordon & Co. L.P., (b) Glendon Capital Management L.P., (c) King Street Capital Management, L.P., (d) Nut Tree Capital Management, LP, or (e) Oak Hill Advisors, L.P..
“Confidentiality Agreement” means an executed
confidentiality agreement, including with respect to the issuance of a “cleansing letter” or other public disclosure of material non-public information, in connection with any proposed Restructuring Transactions.
“Consenting 2016 Lenders” has the meaning set forth in the preamble to this Agreement.
“Consenting 2016 Lenders Termination Events” has the meaning set forth in Section 13.02.
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“Consenting BrandCo Lenders Termination Events” has the meaning set forth in Section 13.01.
“Consenting Lenders” has the meaning set forth in the preamble to this Agreement.
“Deferred B-1 Adequate Protection Payment” has the meaning set forth in Section 5.04(c).
“Definitive Documents” shall mean the documents set forth in Section 3.01, including all exhibits, annexes, schedules, amendments, and supplements relating to such documents.
“First Lien Exit Facilities Term Sheet” means the term sheet which sets forth the material terms of the First Lien Exit Facilities, which is attached as Exhibit
C hereto.
“Independent Investigation” means the internal investigation of potential claims, if any, that certain Debtors may hold against insiders and affiliates being conducted by the investigation
committee of the board of directors of Holdings.
“Interim Compensation Order” means the Order Authorizing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals entered by
the Bankruptcy court on July 21, 2022 [Docket No. 259].
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“Law” means any federal, state, provincial, local, or foreign law (including common law), statute, code, ordinance, rule,
regulation, order, ruling, or judgment, in each case, that is validly adopted, promulgated, issued, or entered by a governmental authority of competent jurisdiction (including the Bankruptcy Court).
“Original RSA” has the meaning set forth in the recitals to this Agreement.
“Permitted Transferee” means each transferee of any Company Claims/Interests that meets the requirements of Section 10.01.
“Qualified Marketmaker” means an Entity that (a) holds itself out to the public or the applicable private markets as standing ready in the
ordinary course of its business to purchase from customers and sell to customers Company Claims/Interests (including debt securities, other debt, or interests) or enter into with customers long
and short positions in Company Claims/Interests (including debt securities, other debt, or interests), in its capacity as a dealer or market maker in such Company Claims/Interests, and (b) is, in fact, regularly in the business of making a market in Claims against, or Interests
in, issuers or borrowers (including debt securities, other debt, or interests).
“Required Consenting 2016 Lenders” means, as of the relevant date, Consenting 2016 Lenders holding a majority of the aggregate principal amount of the 2016 Term Loan Claims held by Consenting
2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders as of such date.
“Required Consenting 2020 B-1 Lenders” means, as of the relevant date, Consenting 2020 B-1 Lenders holding a majority of the aggregate principal amount of the 2020 Term B-1 Loans held by the
Ad Hoc Group of BrandCo Lenders as of such date.
“Required Consenting 2020 B-2 Lenders” means, as of the relevant date, Consenting 2020 B-2 Lenders holding a majority of the aggregate principal amount of the 2020 Term B-2 Loans held by the
Ad Hoc Group of BrandCo Lenders as of such date.
“Required Consenting BrandCo Lenders” means, as of the relevant date, the Required Consenting B-1 Lenders and the Required Consenting
B-2 Lenders.
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“Specified Cash-Out Backstop Lenders” means, collectively, the Consenting 2016 Lenders
that are or are managed or advised by (a) Sunrise Partners Limited Partnership, (b) HPS Investment Partners, (c) New Generation Advisors, LLC, (d) Benefit Street Partners, (e) Cedar Funding V CLO, Ltd, or (f) Ellington CLO Management LLC.
“Termination Date” means, with respect to a Party, the date on which
termination of this Agreement as to such Party is effective in accordance with Section 13.01, 13.02, 13.03,
13.04, 13.05, or 13.06, as applicable.
“Termination Notice” means a written notice which shall (a) be delivered in connection with a Termination
Event in accordance with this Agreement and (b) set forth the provision(s) under this Agreement pursuant to which the Termination Event has occurred and the
purported grounds for such termination.
“Transfer” means, as the context requires, (a) to sell, resell, reallocate, use, pledge, assign, transfer,
hypothecate, participate, donate, or otherwise encumber or dispose of, directly or indirectly (including through derivatives, options, swaps, pledges, forward sales, or other transactions), or (b) a transaction effectuating any of the foregoing.
“Transfer Agreement”
means an executed form of transfer agreement (a) providing, among other things, that a transferee of Company Claims/Interests is bound by the terms of this Agreement to the same extent as the transferor of such Company Claims/Interests, including,
with respect to any transferee of 2016 Term Loan Claims Transferred by a Cash-Out Backstop Lender, the obligations set forth in Section 5.01(a)(x) and (b) substantially
in the form attached hereto as Exhibit E.
“UCC BrandCo Challenge” means any Challenge by the Creditors’ Committee to the Prepetition BrandCo Credit Facilities, the Prepetition BrandCo Credit Facility Debt, the Prepetition BrandCo
Liens, or the Prepetition BrandCo Secured Parties (in each case, as defined in the Final DIP Order).
“UCC BrandCo Challenge Deadline” means the last day of the Challenge Period (as defined in the Final
DIP Order) with respect to the UCC BrandCo Challenges.
(a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine,
or neuter gender shall include the masculine, feminine, and neuter gender;
(b) capitalized terms defined only in the plural or singular form shall nonetheless have their defined meanings when used in the opposite form;
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(c) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit shall mean such document, schedule, or exhibit, as it may have been or may be
amended, restated, supplemented, or otherwise modified from time to time; provided that any capitalized terms herein which are defined with reference to another agreement,
are defined with reference to such other agreement as of the date of this Agreement,
without giving effect to any termination of such other agreement or amendments to such capitalized terms in any such other agreement following the date hereof;
(d) unless otherwise specified, all references herein to “Sections” are references to Sections of this Agreement;
(e) the words “herein,” “hereof,” and “hereto” refer to this Agreement
in its entirety, including all exhibits, annexes, and schedules attached hereto in accordance with Section 15.02, rather than to any particular portion of this Agreement;
(f) captions and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Agreement;
(g) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable limited liability company Laws;
(i) the phrase “counsel to the Consenting Creditor Parties” refers in this Agreement to each counsel specified in Section 15.10 other than counsel to the Debtors.
Section 2. Effectiveness of this Agreement. This Agreement shall become effective and binding upon each of the Parties at 12:00 a.m., prevailing Eastern Standard Time, on the Amendment Effective Date, which is the date on which all of the following conditions have been satisfied or waived in accordance with this Agreement:
(a) each of the Debtors shall have executed and delivered counterpart signature pages of this Agreement to counsel to each of the Parties;
(b) the Required Consenting BrandCo Lenders shall have executed and delivered counterpart signature pages to this Agreement in accordance with Section 15.07;
(c) holders (or investment advisors,
sub-advisors, or managers of discretionary accounts of holders) of at least two-thirds of the combined aggregate amount of (i) Allowed 2016 Term Loan Claims (inclusive of validly executed but unsettled trades) and (ii) Allowed 2020 Term B‑3
Loan Claims shall have executed and delivered counterpart signature pages to this Agreement in accordance with Section 15.07;
(d) an authorized representative of the Creditors’ Committee shall have executed and delivered a counterpart signature page to this Agreement to counsel to each of the Parties; and
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(e) counsel to the Debtors shall have given notice to counsel to the Consenting
Creditor Parties in the manner set forth in Section 15.10 hereof (by email or otherwise) that the conditions to the Amendment Effective Date set
forth in this Section 2 have occurred.
3.01 The Definitive Documents governing the Restructuring
Transactions shall include the following, which shall, in each case, be in form and substance consistent with this Agreement,
including Section 3.02:
(a) the Plan (including, for the avoidance of doubt, all exhibits, annexes, exhibits, schedules, and supplements related thereto, including the Plan Supplement);
(f) the Equity Rights Offering Documents, including the Backstop Commitment Agreement, the Backstop Order, and the Equity Rights Offering Procedures;
(l) the documentation setting the distribution record date and means of distribution under the Plan and the procedures for designating the
recipients of distributions under the Plan;
(m) any materials relating to (a) through (l) above or (n) below, that are filed in the Canadian Recognition Proceeding or any other foreign proceeding
commenced by any Debtor in connection with the Restructuring Transactions; and
(n) all other documents, motions, pleadings, briefs, applications, orders, agreements, supplements, and other filings, including any summaries or term sheets in respect
thereof, that are directly related to any of the foregoing or as may be reasonably necessary or advisable to implement the Restructuring Transactions.
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3.02 The Definitive Documents not executed or in a form attached to this Agreement as of the Execution Date remain subject to negotiation and completion. The Definitive Documents, including all amendments and modifications thereto and including all forms thereof filed with the Bankruptcy Court, shall contain
terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement, as they may be
modified, amended, or supplemented in accordance with Section 14 and be in form and substance reasonably acceptable to the Debtors and the Required Consenting BrandCo Lenders; provided that (i) the Definitive Documents identified in Section 3.01(a)-(c), and (e) shall be in form and substance acceptable to the Debtors and the Required Consenting BrandCo Lenders, other than the Third-Party New Money Exit Facility, which shall be in form and substance acceptable
solely to the Debtors and the Required Consenting 2020 B-2 Lenders, (ii) the Definitive Documents identified in Section 3.01(f) and (k) shall be in form
and substance acceptable solely to the Debtors and the Required Consenting 2020 B-2 Lenders; provided that any material reduction in the ERO Price Per Share shall also be reasonably acceptable to the Required
Consenting 2020 B-1 Lenders, (iii) the Definitive Documents identified in Section 3.01(i) and (j) shall be in form and substance reasonably acceptable
solely to the Debtors and the Required Consenting 2020 B-2 Lenders, and (iv) the Definitive Documents identified in Section 3.01(h) and the Reorganized Holdings Board shall
be determined by and acceptable to the Required Consenting 2020 B-2 Lenders in their sole discretion; provided further that, if any provision, or any amendment or modification of such provision, of the
Definitive Documents has the effect of causing the Plan treatment of holders of the 2020 Term B-1 Loan Claims or holders of the 2020 Term B-2 Loan Claims to be less favorable than that set forth in the Plan, only the affected group of the Required
Consenting 2020 B-1 Lenders and/or the Required Consenting 2020 B-2 Lenders, as applicable, receiving the less favorable treatment may exercise the consent rights as set forth in this Section 3, solely
with respect to such provision, or any amendment or modification of such provision. In addition and not in limitation of the foregoing, (w) the provisions of the Definitive Documents providing for
or impacting treatment of General Unsecured Claims and/or Unsecured Notes Claims shall also be in form and substance reasonably acceptable to the
Creditors’ Committee, (x) the New Warrant Agreement shall also be in form and substance reasonably acceptable to the Creditors’ Committee, (y) any
provision, or any amendment or modification of such provision, of the Definitive Documents that has a material, disproportionate and adverse effect on the treatment or economic recovery of the OpCo Term Loan Claims (including that otherwise
disproportionately and materially adversely affects OpCo Term Loan Claims as a class as compared to 2020 Term B-2 Loan Claims as a class) shall also be in form and substance reasonably acceptable to the Required Consenting 2016 Lenders, and (z) the
New Organizational Documents shall have minority protections consistent with the Article IV.G of the Plan or otherwise reasonably acceptable to the Required Consenting 2016 Lenders. For the avoidance of doubt, the terms of this Agreement (including the exhibits attached hereto) have been agreed by all the Parties.
4.01 The Debtors shall implement the Restructuring
Transactions in accordance with the following milestones (the “Milestones”):
(a) no later than February 21, 2023, the Debtors shall file with the Bankruptcy Court: (i) the Plan; and (ii) an amended Disclosure Statement reflecting the Plan;
(b) no later than February 22, 2023, the Bankruptcy Court shall have entered the Disclosure Statement Order;
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(c) no later than February 22, 2023, the Bankruptcy Court shall have entered the Backstop Order;
(d) no later than February 28, 2023, the Debtors shall have commenced the solicitation of votes to accept or reject the Plan;
(e) no later than April 4, 2023, the Bankruptcy Court shall have entered the Confirmation Order; and
4.02 A Milestone may only be extended or waived with the prior written consent of the Debtors and the Required Consenting BrandCo Lenders (email being sufficient).
5.01 Affirmative Commitments.
(a) During the Agreement Effective Period as to each Consenting
Creditor Party, such Consenting Creditor Party agrees, (in the case of each Consenting Creditor Party, in respect of all of its Company Claims/Interests presently owned and hereafter acquired (for so long as it remains the beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial
holders thereof)), to:
(iii) negotiate in good faith and use commercially reasonable efforts to execute and implement the Definitive Documents to which it
is required to be a party;
(iv) with respect to each Consenting Lender,
prior to the date by which the Consenting Lender shall be required to vote on the Plan, vote each of its Company Claims/Interests (including, with respect
to any unsettled trades by using commercially reasonable efforts to exercise all rights it has under the related trade confirmation to cause and direct the applicable holder of such Company Claims/Interests to vote) to accept the Plan by delivering its duly executed and completed ballot accepting the Plan in accordance with the Solicitation
Materials;
(v) with respect to each Consenting Lender, to the extent it is permitted to opt out of the releases set forth in the Plan, elect not to opt out
of the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(vi) with respect to each Consenting Lender, to the extent that it is permitted to opt in to the releases set forth in the Plan, elect to opt in to
the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
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(vii) with respect to each Consenting Lender, not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any vote or election referred to in clause (ii), (iv), (v), or (vi) above;
(viii) support, and not directly or indirectly object to, delay, impede, or take any other action to interfere with, Confirmation or consummation of the Plan;
(ix) support, and not directly or indirectly object to, delay, impede, or take any other action to interfere with, any motion or other pleading or document filed by a Debtor in the Bankruptcy Court or any other court that is consistent in all respects with this Agreement and the Restructuring Transactions;
(x) with respect to each Cash-Out Backstop
Lender, not make the Class 4 Equity Election in respect of the treatment under the Plan for such Consenting 2016 Lender’s 2016 Term Loan Claims; provided that the Cash-Out
Backstop Lenders, other than the Specified Cash-Out Backstop Lenders, may be deemed to make the Class 4 Equity Election in accordance with the Plan in the event the Class 4 Equity Election is made for less than $543 million of Allowed OpCo Term
Loan Claims in the aggregate;
(xi) with respect to the Consenting Lenders, if reasonably requested by counsel to the Ad Hoc Group of BrandCo Lenders, execute and deliver any documentation reasonably requested by counsel to the Ad Hoc Group of
BrandCo Lenders necessary to evidence such Consenting Lender’s election under section 1111(b)(2) of the Bankruptcy Code for such Consenting Lender’s 2020 Term B-1 Loan Claims, 2020 Term B-2 Loan Claims, and/or OpCo Term Loan Claims, as applicable; and
(b) In addition to the commitments set forth in Section 5.01(a),
during the Agreement Effective Period as to the Creditors’ Committee, the Creditors’
Committee agrees to:
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(i) upon the written request of the Debtors, timely file a formal objection, or joinder to any such
objection, to any motion, application, or other pleading filed with the Bankruptcy Court or any other court seeking the entry of an order for relief that: (A) is inconsistent with this Agreement in any material respect; or (B) would, or would be reasonably expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring
Transactions;
(ii) provide, for inclusion in the Solicitation Materials, a letter recommending that all holders of General
Unsecured Claims and Unsecured Notes Claims vote in favor of the Plan and grant the releases contained in the Plan; and
(iii) upon the written request of the Debtors, timely file a formal objection or opposition to any motion, application, or adversary proceeding
or other action or proceeding asserting any Settled Litigation.
(a) During the Agreement Effective Period as to each Consenting Creditor Party, such Consenting Creditor Party agrees (in the case of each Consenting Lender, in respect of all of its Company Claims/Interests presently owned
(as detailed on the signature pages attached hereto) and hereafter acquired, in each case, for so long as it remains the beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial holders thereof) that it shall
not directly or indirectly, and it shall not direct any other Entity to:
(i) object to, delay, impede, or take any other action to interfere with, delay, or impede the acceptance, consummation, or implementation of the Plan or the Restructuring Transactions;
(ii) seek, solicit, propose, file, support, vote in favor of, assist, engage in negotiations in connection with, or participate in the formulation, preparation, filing, or prosecution of any Alternative Restructuring Proposal;
(iii) file any motion, pleading, or other document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or
in part, is materially inconsistent with this Agreement or the Restructuring
Transactions;
(iv) initiate, or have initiated on its behalf, any litigation or proceeding of any kind that is inconsistent with this Agreement or the Restructuring Transactions against the Debtors or the other Parties (it being understood, for the avoidance of doubt, that any litigation or proceeding to enforce this Agreement or any Definitive Document or that is otherwise permitted under this Agreement shall not be construed to be inconsistent with this Agreement or the Restructuring Transactions);
(v) exercise, or direct any other Person to exercise, any right or remedy for the enforcement, collection, or recovery of any Company Claims/Interests in a
manner that is inconsistent with this Agreement; or
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(vi) object to, delay, impede, or take any other action to interfere with the Debtors’ ownership and possession of their assets, wherever
located, or interfere with the automatic stay arising under section 362 of the Bankruptcy Code or any stay in the Canadian Recognition Proceeding, other than as permitted by
this Agreement.
(a) be construed to prohibit any Consenting Creditor Party from appearing as a party
in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of delaying, interfering, or impeding, directly or indirectly, the Restructuring Transactions;
(b) affect the ability of any Consenting Creditor Party to consult with any other Consenting
Creditor Party, the Debtors, or any other party in interest in the Chapter 11 Cases (including the United States Trustee), so as long as such consultation and any communications in connection therewith are not inconsistent with this Agreement or any applicable confidentiality agreement, and are not for the purpose of delaying, interfering,
or impeding, directly or indirectly, the Restructuring Transactions;
(c) impair or waive the rights of any Consenting Creditor Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions;
(d) prevent any Consenting Creditor Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement;
(e) be construed to prohibit any Consenting Lender from, either itself or through any representatives or agents, soliciting, initiating, negotiating, facilitating, proposing,
continuing, or responding to any proposal to purchase or sell Company Claims/Interests, so long as such Consenting Lender complies with Section 10;
or
(f) obligate a Consenting Lender to deliver a vote to support the Plan or prohibit a Consenting Lender from changing such vote, in each case from and after the Termination Date as to such Consenting Lender (other than pursuant to Section 13.06). For the avoidance of doubt, upon the Termination Date as to a Consenting Lender (other than pursuant to Section 13.06), such Consenting
Lender’s vote shall automatically be deemed void ab initio and such Consenting Lender shall have a reasonable opportunity to cast a vote; or
(g) prohibit any Consenting Creditor Party from taking any other action that is not inconsistent with this Agreement, the Restructuring Transactions, or any Definitive
Document.
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(a) with respect to Consenting BrandCo Lenders that are DIP Lenders, which collectively constitute Required
DIP Lenders (as defined in the Final DIP Order), consent to the payment by the Debtors of the fees and expenses incurred by the professionals retained by the Creditors’ Committee in connection with or relating to the investigation and/or prosecution of any Challenge (as defined in the Final DIP Order) through December 19, 2022 notwithstanding the application of any Investigation Cap (as such term is defined by the Final DIP Order) immediately upon execution of this Agreement and approval
and/or authorization to pay such fees and expenses in accordance with the Interim Compensation Order and other such orders of the Bankruptcy Court, so long as the Creditors’ Committee remains bound to this Agreement and not in breach of
any of their respective obligations hereunder;
(b) negotiate in good faith and use commercial best efforts to reach an agreement with the Debtors on the outstanding terms of the Global Bonus Program in accordance with the terms of the Restructuring Term Sheet
attached as Exhibit B to the Original RSA by March 2, 2023;
(c) with respect to Consenting B-1 Lenders, which constitute the Majority Facility Lenders (as defined in the BrandCo Credit Agreement) with respect to the 2020 Term B-1 Loans, consent to the deferral of an
amount equal to $20,000,000 of the BrandCo B-1 Payment (as defined in the Final DIP Order) due on March 8, 2023 to the Holders of the 2020 Term B-1 Loan Claims pursuant to the Final DIP Order (the “Deferred B-1 Adequate Protection Payment”)
until the earliest of the termination of this Agreement as to the Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders, the termination of this Agreement as to the Consenting BrandCo Lenders and the Plan Effective
Date. The Parties agree that such Deferred B-1 Adequate Protection Payment shall bear interest, payable quarterly at the non-default interest rate applicable to the 2020 Term B-1 Loans under the BrandCo Credit Agreement; and
(d) with respect to Consenting BrandCo Lenders that are Debt Commitment Parties and
that have delivered a signature page to this Agreement, negotiate in good faith an amendment to the Debt Commitment Letter to reflect the increase of the Aggregate Rights Offering Amount from $650 million to $670 million and to provide in a
manner consistent with the changes that were made to the Backstop Commitment Agreement in connection with the execution of this Agreement that the Backstop Commitment Cash Premium (as defined in the Debt Commitment Letter) shall not be payable if
the Backstop Commitment Letter is terminated by any party thereto as a result of (i) the entry of Confirmation Order or the Backstop Order being denied, or any of such orders being reversed, vacated, reconsidered or otherwise ceasing to
constitute a final order, (ii) any ruling in the Adversary Proceeding that would render confirmation of the Plan impractical or impossible, or (iii) any applicable law or order of any governmental unit shall prevent or prohibit the confirmation
of the Plan or the consummation of a material portion of the transactions contemplated by the Debt Commitment Letter or the other First Lien Exit Facilities Documents (as defined in the Debt Commitment Letter).
5.05 Additional Commitments of the Consenting 2016 Lenders.
During the Agreement Effective Period, each Consenting 2016 Lender that is a member of the Ad Hoc Group of 2016 Term Loan Lenders agrees to:
(a) (i) consent to and cooperate with the
Debtors and the Required Consenting BrandCo Lenders in causing the entry of the Adversary Stay and Dismissal Order, (ii) at the hearing on the Disclosure Statement, cause counsel for the Ad Hoc Group of 2016 Term Loan Lenders to make an oral
request for entry of the Adversary Stay and Dismissal Order, and (iii) support the entry of the Adversary Stay and Dismissal Order by the Bankruptcy Court and deliver all consents necessary thereto;
(b) prior to or at the hearing on the
Disclosure Statement, take all actions necessary to cause all objections filed by the Ad Hoc Group of 2016 Term Loan Lenders pending in the Chapter 11 Cases as of the Amendment Effective Date to be withdrawn, including (i) the Objection of Ad Hoc Group of 2016 Term Loan Lenders to the Debtors’ Disclosure Statement [Docket No. 1389], (ii) the Objection of Ad Hoc Group of 2016 Term Loan Lenders to Motion of Debtors for the Entry of an Order (I) Authorizing the (A) Debtors’ Entry Into the Backstop Commitment Agreement, (B) Debtors’ Entry Into the Debt Commitment Letter, (C)
Debtors to Perform all Obligations Under the Backstop Commitment Agreement and the Debt Commitment Letter, and (D) Incurrence, Payment, and Allowance of Related Premiums, Fees, Costs, and Expenses as Administrative Expense Claims, (II)
Approving the Rights Offering Procedures and Related Forms, and (III) Granting Related Relief [Docket No. 1391] and (iii) the Objection of Ad Hoc Group of 2016 Term
Loan Lenders to Debtors’ Second Motion to Extend the Debtors’ Exclusive Periods to File a Chapter 11 Plan and Solicit Acceptances Thereof Pursuant to Section 1121 of the Bankruptcy Code [Docket No. 1396];
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(c) not, directly or indirectly, and not direct any other Entity to (i) investigate, assert, prosecute, or support, directly or indirectly, including by
filing any document in support of, propounding discovery in support of, advocating to the Bankruptcy Court in favor of, or transferring material work product (whether in writing or orally) in furtherance of another’s support of, any Settled
Litigation or any other litigation or objection inconsistent in any way with the Consummation of the Plan; or (ii) seek payment from the Debtors or the Reorganized Debtors for any fees relating to any of the foregoing, other than as expressly
permitted by this Agreement; and
(d) support inclusion in the Confirmation Order of (i) findings
of fact and conclusions of law acceptable to the Required Consenting BrandCo Lenders that all claims and causes of action asserted in the Adversary Proceeding are Estate Causes of Action and released under the Plan, (ii) an injunction acceptable
to the Required Consenting BrandCo Lenders barring any Person from pursuing any such claims or causes of action or any other claims arising out of or related to the facts and circumstances alleged in the Adversary Proceeding, and (iii) a bar
order prohibiting the assertion by any party that is not a Released Party of any claim for indemnity or contribution against any Released Party arising out of or reasonably flowing from the claims or allegations in any claim that is released as
against the Released Parties under the Plan, in each case to be binding and final solely from and after the Plan Effective Date; provided that the Parties agree the
Consenting 2016 Lenders shall not be prejudiced in any manner by such provisions in the Confirmation Order in the event the Plan Effective Date does not occur and no Party shall be permitted to rely on or assert the effectiveness of any such
provision against such Consenting 2016 Lenders in the absence of the occurrence of the Plan Effective Date.
(a) Upon the Amendment Effective Date and continuing until the BrandCo Settlement Termination Date,
each Consenting BrandCo Lender agrees to:
(i) use its commercially reasonable best efforts to cause the Plan and any Alternative
Restructuring Proposal sought, solicited, proposed, filed, supported, voted in favor of, negotiated, formulated, prepared, or otherwise prosecuted by the Required Consenting BrandCo Lenders
provides for treatment of each class of General Unsecured Claims, Unsecured Note Claims, and Qualified
Pension Plans (collectively, “Creditors’ Committee Constituent Claims”) that is not economically less favorable to the holders of such class than the treatment of such class contemplated
under the reorganization transaction contemplated under the Plan (such treatment, “Equivalent GUC Treatment”); and
(ii) without the Creditors’ Committee’s consent, not amend the Plan in any manner, or seek, solicit, propose, file, support,
or participate in the formulation, preparation, filing, or prosecution of any Alternative Restructuring Proposal, that would offer or likely result in treatment of any class of Creditors’ Committee Constituent Claims that is less favorable to the holders of such class than the Equivalent GUC Treatment of such class
contemplated under the Plan.
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(b) Upon the Amendment Effective Date and continuing until the UCC Settlement Termination Date, the Creditors’ Committee agrees that it shall not directly or indirectly, and shall not direct any other Entity to:
(i) object to, delay, impede, or take any other action to interfere with, delay, or impede the acceptance, consummation, or implementation of any Alternative
Restructuring Proposal sought, solicited, filed, supported, voted in favor of, negotiated, formulated, prepared or otherwise prosecuted by the Required Consenting BrandCo Lenders that provides
for Equivalent GUC Treatment; or
(ii) (A) investigate, assert, prosecute, or
support, directly or indirectly, including by filing any document in support of, propounding discovery in support of, advocating to the Bankruptcy Court in favor of, or transferring material work
product (whether in writing or orally) in furtherance of another’s support of (except but solely to the extent the Creditors’ Committee is required by applicable Law
to disclose any such work product that is not entitled to protection from discovery), (I) any challenge to the amount, validity, perfection, enforceability, priority, or extent of, or seek avoidance, disallowance, subordination, or
recharacterization of, any portion of any Claim of, or security interest or continuing lien granted to or for the benefit of, the 2016 Agent, any Holder of a 2020 Term Loan Claim or BrandCo Agent; (II) any action for preferences, fraudulent transfers or conveyances, other avoidance power claims or any other claims, counterclaims or causes of action,
objections, contests, or defenses against the 2016 Agent, any Holder of a 2020 Term Loan Claim, BrandCo Agent or BrandCo Entity; (III) any other Challenge
(as defined in the Final DIP Order) against the 2016 Agent, any Holder of a 2020 Term Loan Claim or
BrandCo Agent or any Claims or liens thereof; or (IV) any other Financing Transactions Litigation Claims (collectively, “Settled Litigation”); or (B) seek payment for any fees relating to any of the foregoing, other than as expressly permitted by this Agreement.
(a) The Consenting BrandCo Lenders’ obligations under Section 6.01(a) shall
automatically terminate upon the occurrence of any of the following events (the date of such termination, the “BrandCo Settlement Termination Date”):
(i) the termination of this Agreement, in each case
solely, as to the Creditors’ Committee, by (A) the Required Consenting BrandCo Lenders pursuant to Section
13.01(a), (e), or (k), (B) the Creditors’ Committee, other than pursuant to pursuant to
Section 13.03(a) as a result of a breach by the Required Consenting BrandCo Lenders of their obligations under Section
6.01(a), or (C) by the Debtors pursuant to Section 13.04(c);
(ii) the delivery of a notice by the Required Consenting BrandCo Lenders to counsel to the Creditors’ Committee upon the breach by the Creditors’ Committee of its obligations under Section 6.01(b),
which breach remains uncured (to the extent curable) for ten (10) Business Days after the Required Consenting BrandCo Lenders transmit a Breach Notice to counsel to the Creditors’ Committee hereof detailing any such breach; or
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(b) The Creditors’ Committee agrees that, upon the occurrence of a BrandCo Settlement Termination Date
occurring pursuant to any of the events described in Section 6.02(a)(i) or (ii)
(such date, the “UCC Settlement Waiver Date”), (i) the Creditors’ Committee’s obligations under Section
6.01(b) shall survive; (ii) the UCC BrandCo Challenge Deadline shall immediately and automatically be deemed to have
expired; and (iii) the Creditors’ Committee shall be deemed to have waived any and all rights to assert any Settled Litigation or objections to
Confirmation of the Plan on any basis other than an objection on behalf of Holders of General Unsecured Claims and/or Unsecured Notes Claims to Confirmation based upon a valid Alternative Restructuring Proposal for an Acceptable Alternative Transaction (as
defined in the restructuring term sheet attached as Exhibit B to the Original RSA) received by the Debtors.
(c) In the event of a breach by the Required Consenting BrandCo Lenders of their obligations under Section 6.01(a), which breach remains uncured for ten (10) Business Days after the Creditors’ Committee transmits a Breach Notice to counsel to the Ad Hoc Group of BrandCo Lenders detailing such breach, the Creditors’ Committee may elect to either (i) terminate the Creditors’ Committee’s obligations under Section 6.01(b) by delivering a notice to counsel to the Ad Hoc Group of BrandCo Lenders (the date of such
termination, the “UCC Settlement Termination Date”) or (ii) seek specific performance of the Consenting BrandCo Lenders’
obligations under Section 6.01(a); provided that, for the avoidance of doubt, the Creditors’ Committee shall
not be permitted to seek specific performance of Section 6.01(a) at any time after the UCC Settlement Waiver Date. Upon the UCC Settlement Termination Date, (x) the Creditors’ Committee shall be permitted to seek standing and, if granted standing, to prosecute a UCC BrandCo Challenge in respect to the Settled Litigation and (y) the UCC BrandCo Challenge
Deadline shall be deemed to occur on the date that is five (5) days after the UCC Settlement Termination Date; provided that, if the breach by the
Required Consenting BrandCo Lenders is subsequently cured, the Creditors’ Committee shall immediately withdraw such UCC BrandCo Challenge and any notice of a UCC Settlement Termination Date shall be deemed rescinded. For the avoidance of doubt, at
any time prior to the UCC Settlement Termination Date, the Required Consenting BrandCo Lenders may seek specific performance of the Creditors’ Committee’s obligations under Section 6.01(b). For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, the
provisions of Section 6 hereof shall survive termination of this Agreement.
7.01 Affirmative Commitments. Except as expressly permitted in Section 9.02, during the Agreement Effective Period, each of the Debtors agrees to, and agrees to cause each of its direct and indirect subsidiaries to:
(a) support and take all steps reasonably necessary and desirable to consummate the Restructuring Transactions in accordance
with this Agreement and the Milestones;
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(b) to the extent any legal or structural impediment arises that would prevent, hinder, impede, or delay the consummation of the Restructuring
Transactions, take all steps reasonably necessary and desirable to address any such impediment, and negotiate in good faith any appropriate additional or alternative provisions or agreements to address any
such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
(d) negotiate in good faith and use commercially reasonable efforts to take all steps reasonably necessary to (i) consummate the Restructuring Transactions
and (ii) execute and implement the Definitive Documents;
(e) not file or seek authority to file any pleading inconsistent with this Agreement,
including the consent rights set forth in Section 3, or the Restructuring Transactions;
(f) timely file a formal objection to any motion, application, or pleading filed with the Bankruptcy Court seeking the entry of an order for relief that: (i) is
materially inconsistent with this Agreement or any Definitive
Document; or (ii) would, or would be reasonably expected to, frustrate the purposes of this Agreement or any Definitive Document, including by preventing the consummation of the Restructuring Transactions;
(g) timely file a formal objection or opposition to any motion, application, or adversary proceeding or other action or proceeding asserting any Settled Litigation;
(h) oppose and object to any motion, application, adversary proceeding, or cause of action filed with the Bankruptcy Court by any party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; (iii)
dismissing the Chapter 11 Cases; or (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as
applicable;
(i) oppose any objections filed with the Bankruptcy Court to the Plan, any other Definitive Document, or the Restructuring Transactions;
(j) support inclusion in the Confirmation Order of (i) findings of fact and conclusions of law acceptable to the Required Consenting BrandCo Lenders that all claims and causes of action asserted in the Adversary
Proceeding are Estate Causes of Action and released under the Plan, (ii) an injunction acceptable to the Required Consenting BrandCo Lenders barring any Person from pursuing any such claims or causes of action or any other claims arising out of or
related to the facts and circumstances alleged in the Adversary Proceeding, and (iii) a bar order prohibiting the assertion by any party that is not a Released Party of any claim for indemnity or contribution against any Released Party arising out of
or reasonably flowing from the claims or allegations in any claim that is released as against the Released Parties under the Plan, in each case to be binding and final from and after the Plan Effective Date;
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(k) (i) prior to
the hearing on the Disclosure Statement, take all actions necessary to cause an order acceptable to the Required Consenting BrandCo Lenders, the Debtors and the Required Consenting 2016 Lenders staying the Adversary Proceeding and holding such
litigation in abeyance as to all parties to the Adversary Proceeding pending confirmation of the Plan and providing for the automatic dismissal of the Adversary Proceeding with prejudice as to all parties to the Adversary Proceeding upon the
occurrence of the Plan Effective Date (the “Adversary Stay and Dismissal Order”) to be submitted to the Bankruptcy Court, (ii) make a request at the hearing on the Disclosure Statement
for the Adversary Stay and Dismissal Order to be entered by the Bankruptcy Court, and (iii) support the entry of the Adversary Stay and Dismissal Order by the Bankruptcy Court and deliver all consents necessary thereto;
(l) inform counsel to the Ad Hoc Group of
BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, and the Creditors’ Committee within two (2) Business Days after becoming aware of (i) any
matter or circumstance, that they know or believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ii) a breach of this Agreement (including a breach by any Debtor); or (iii) any representation or
statement made or deemed to be made by any Debtor under this Agreement which
is or proves to have been incorrect or misleading in any material respect when made or deemed to be made;
(m) upon reasonable request of any Consenting Creditor Party, reasonably and promptly inform counsel to such party of: (i) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of
obtaining any necessary authorizations (including any consents) from each Consenting Creditor Party, any competent judicial body, governmental authority, banking, taxation, supervisory,
regulatory body, or any stock exchange. For the avoidance of doubt, the Debtors shall continue to provide financial data to stakeholders, including the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of
2016 Term Loan Lenders, and the Creditors’ Committee, as required by the Final DIP Order; and
(n) negotiate in good faith an amendment to
the Debt Commitment Letter to reflect the increase of the Aggregate Rights Offering Amount from $650 million to $670 million and to provide in a manner consistent with the changes that were made to the Backstop Commitment Agreement in connection
with the execution of this Agreement that the Backstop Commitment Cash Premium (as defined in the Debt Commitment Letter) shall not be payable if the Backstop Commitment Letter is terminated by any party thereto as a result of (i) the entry of
Confirmation Order or the Backstop Order being denied, or any of such orders being reversed, vacated, reconsidered or otherwise ceasing to constitute a final order, (ii) any ruling in the Adversary Proceeding that would render confirmation of the
Plan impractical or impossible, or (iii) any applicable law or order of any governmental unit shall prevent or prohibit the confirmation of the Plan or the consummation of a material portion of the transactions contemplated by the Debt Commitment
Letter or the other First Lien Exit Facilities Documents (as defined in the Debt Commitment Letter).
7.02 Negative Commitments. Except as expressly permitted in Section 9.02, during the Agreement Effective Period, each of the Debtors shall not, and shall cause each of its direct and indirect subsidiaries to not, directly or indirectly:
(a) without the reasonable consent of the Required Consenting BrandCo Lenders, object to, delay, impede, or take any other action or inaction that is
reasonably avoidable and would interfere with, delay, or impede the acceptance, implementation, or consummation of the Plan or the Restructuring
Transactions;
(b) take any action or inaction that is inconsistent in any material respect with, or is intended or could reasonably be expected to frustrate or impede approval, implementation, and consummation of the Restructuring Transactions or this Agreement;
(c) file any motion or pleading, with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is
inconsistent with this Agreement, including the consent rights set forth in Section 3,
or the Restructuring Transactions;
(d) execute or file any Definitive Document with the Bankruptcy Court (including
any modifications or amendments thereto) that, in whole or in part, is inconsistent with this Agreement, including the
consent rights set forth in Section 3, or the Restructuring Transactions;
(e) take any other action or inaction in contravention of this Agreement or any Definitive Document, or to the material detriment of the Restructuring
Transactions;
(f) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Consenting BrandCo Lenders, transfer any asset or right of any Debtor or any material asset or right used in the business of the Debtors to any Entity
outside the ordinary course of business;
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(g) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Consenting BrandCo Lenders, take any action or inaction
that would cause a change to the tax status of any Debtor; or
(h) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Consenting BrandCo Lenders, engage in any merger,
consolidation, material disposition, material acquisition, investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business other than the Restructuring
Transactions.
8.01 Cooperation and Support. The Debtors shall provide draft copies of all material pleadings and documents that any Debtor intends to file with or submit to the Bankruptcy Court or any governmental authority (including any regulatory authority), as applicable, and draft copies
of all press releases that any Debtor intends to issue regarding this Agreement or
the Restructuring Transactions, to Davis Polk & Wardwell LLP, as counsel to the Ad Hoc Group of BrandCo Lenders, Akin Gump Strauss Hauer & Feld LLP, as counsel to the Ad Hoc Group of
2016 Term Loan Lenders, and Brown Rudnick LLP, as counsel to the Creditors’ Committee, at least two (2) Business Days prior to the date when such Debtor intends to file, submit or issue such document to the extent reasonably practicable, but in all events at least one (1) day prior to such date. Counsel to the respective Parties shall consult in good faith regarding the form and substance of any such proposed filing with or submission to the Bankruptcy Court. The Debtors shall provide the advisors to the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, and the Creditors’
Committee with, in each case, upon a minimum of two (2) Business Days’ advance written notice to counsel to the Debtors, (a) reasonable access (without any material
disruption to the conduct of the Debtors’ businesses) during normal business hours to the Debtors’ books and records, (b) reasonable access to the management and
advisors of the Debtors for the purposes of evaluating the Debtors’ assets, liabilities, operations, businesses, finances, strategies, prospects, and affairs, and (c)
timely and reasonable responses to all reasonable diligence requests; provided that all rights provided for in this Section 8.01 shall be subject to the terms
of any agreements between the Debtors and third parties that may be affected by the exercise of the foregoing rights.
Further, the Debtors shall reasonably consult with counsel to the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, and the Creditors’
Committee regarding any regulatory or other third-party approvals necessary to implement the Restructuring Transactions and share copies of any documents
filed or submitted to any regulatory or other governmental authority in connection with obtaining any regulatory or other third-party approvals.
9.01 Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require (a) any Debtor or the board of directors, board of managers, or similar governing body of any Debtor, or (b) the Creditors’
Committee or any member thereof (the aforementioned parties collectively as to the Debtors and the Creditors’
Committee, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under
applicable Law, including based on the results of the Independent Investigation; provided that counsel to the Debtors or the Creditors’ Committee, as applicable, shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to each other Party to this Agreement following a determination made in accordance with this Section 9.01 to take or not take action, in each case in a manner that would result in a breach
of this Agreement. This Section 9.01 shall not be deemed to amend,
supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this Agreement pursuant to Section 13 or 9.02 of this Agreement that may arise as a result of any such action or inaction.
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(a) Each Debtor and its respective board of directors (or committees thereof, but not any individual director), officers, employees, investment bankers, attorneys,
accountants, consultants, and other advisors or representatives, each acting in their capacity as such, shall have the right, consistent with their fiduciary duties, to continue to conclusion any ongoing
discussions with interested parties and to respond to any inbound indications of interest, but will no longer solicit Alternative Restructuring
Proposals (or inquiries or indications of interest with respect thereto).
(b) If any Debtor or the board of directors of any of the Debtors determines, in the exercise of its fiduciary duties, to accept or pursue an Alternative Restructuring Proposal, including by making any written or oral proposal or counterproposal with
respect thereto, the Debtors shall notify (with email being sufficient) counsel to the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, and the Creditors’ Committee within two (2) Business Days following such determination and/or proposal or counterproposal (with respect to a notice in respect of an
Alternative Restructuring Proposal, an “Alternative Restructuring Counterproposal Notice”). Upon receipt of such Alternative Restructuring Counterproposal Notice, the Required Consenting BrandCo Lenders shall have the right to terminate this Agreement pursuant to Section 13.01(e) of this Agreement; provided that any such Termination
Notice must notify the Debtors that the Required Consenting BrandCo Lenders do not support the applicable Alternative Restructuring Proposal and would intend to credit bid their claims as an alternative to such Alternative Restructuring
Proposal.
(c) The Debtors’ advisors shall provide the advisors to the Ad Hoc Group of BrandCo Lenders, the Ad Hoc Group of 2016 Term Loan Lenders, the Creditors’ Committee, and any other party determined by the Debtors, with (x) regular updates as to the status and
progress of any Alternative Restructuring Proposals and (y) reasonable responses to any reasonable information requests related to any Alternative
Restructuring Proposals or the Debtors’ actions taken pursuant to this Section 9.02.
(d) Nothing in this Agreement shall: (a) impair or waive the rights of any Debtor to assert or raise any objection permitted under this Agreement in
connection with the Restructuring Transactions, or (b) prevent any Debtor from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement. Notwithstanding anything to the contrary in this Agreement, the sole remedy available to any Party upon termination of this Agreement resulting from the Debtors’ exercise of their rights under this Section 9 shall be to terminate this Agreement and no other remedy in equity or in Law, including specific performance or
actual or expectation damages, shall be available.
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10.01 During the Agreement Effective Period, no Consenting Lender shall Transfer any ownership (including any beneficial ownership as defined in the Rule 13d-3 under the Securities Exchange Act of 1934, as amended) in any Company
Claims/Interests to any affiliated or unaffiliated party, including any party in which it may hold a direct or indirect beneficial interest, unless (a “Permitted
Transfer”):
(a) the authorized transferee is (i) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (ii) a non-U.S. person in an offshore transaction as
defined under Regulation S under the Securities Act, (iii) an institutional accredited investor (as defined in rules 501(a)(1), (2), (3), and (7) of the Securities Act), or (iv) a Consenting Lender; and
(b) the transferee (i) executes and delivers to counsel to the Debtors and counsel to the Consenting Creditor Parties in accordance with Section 15.07, within two (2) Business Days of the Transfer, a fully executed Transfer Agreement, (ii) controls, is controlled by, or is under common control with such transferor
Consenting Lender or is an affiliate, affiliated fund, or affiliated entity with a common investment advisor therewith that is bound by this Agreement, or (iii) is a Consenting Lender (or controls, is controlled by, or is under common control with a
Consenting Lender or is an affiliate, affiliated fund, or affiliated entity with a common investment advisor therewith that is bound by this Agreement) unaffiliated with such transferor Consenting Lender,
and, in the case of (iii), the transferee provides notice of such Transfer and the identification of the Consenting Lender that is the transferee or affiliated therewith (including the amount and type of Company Claim/Interest transferred) to counsel to the Debtors and counsel to the Consenting Creditor Parties in accordance with Section 15.07, within two (2) Business Days of the Transfer.
10.02 Upon compliance with the requirements of Section 10.01, the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of the rights and obligations in respect of such transferred Company Claims/Interests. Any Transfer in violation of Section 10.01 shall be void ab initio. Any Consenting Lender that effectuates a Transfer in accordance with this Section 10 shall have no liability under this Agreement arising from or
related to the failure of the transferee to comply with the terms of this Agreement.
10.03 This Agreement
shall in no way be construed to preclude the Consenting Lenders from acquiring additional Company Claims/Interests; provided that (a) such additional Company Claims/Interests shall automatically and immediately upon acquisition by a Consenting Lender be deemed subject to the terms of this Agreement (regardless of when or whether notice of such acquisition is given to counsel to the Debtors or counsel to the Consenting Creditor Parties), and (b) such Consenting Lender must provide notice of such acquisition (including the amount and type of Company
Claim/Interest acquired) on a confidential basis to counsel to the Debtors within three (3) Business Days of such acquisition.
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10.04 This Section 10 shall not impose any obligation on any Debtor to issue any “cleansing letter” or otherwise publicly disclose information for the purpose of enabling a Consenting Lender to Transfer any of its Company Claims/Interests or acquire any Company Claims/Interests. Notwithstanding anything to the contrary herein, to the extent a Debtor and another Party have entered into a Confidentiality Agreement, the terms of such Confidentiality Agreement shall continue to apply and remain in full force and effect according to its terms, and this Agreement does not supersede any rights or obligations otherwise arising under such Confidentiality
Agreements.
10.05 Notwithstanding Section 10.01, a Qualified Marketmaker that acquires any Company Claims/Interests shall not (x) be required to be or
become a Consenting Lender to effect any Transfer of any Company Claims/Interests by a Consenting Lender to such Qualified Marketmaker or (y) be required to execute and deliver a Transfer Agreement in respect of such Company Claims/Interests if (a) such Qualified Marketmaker acquired such Company
Claims/Interests with the purpose and intent of acting as a Qualified Marketmaker, (b) such Qualified Marketmaker subsequently Transfers such Company Claims/Interests (by purchase, sale assignment, participation, or otherwise) within ten (10) Business Days of its acquisition to a transferee that is an Entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor,
(c) such subsequent transferee otherwise is a Permitted Transferee under Section 10.01, and (d) such subsequent Transfer otherwise is a Permitted Transfer under Section 10.01. To the extent that a Consenting Lender is acting in its capacity as a Qualified Marketmaker, it may Transfer or
participate any right, title, or interest in any Company Claims/Interests that the Qualified Marketmaker acquires from a holder of Company Claims/Interests who is not a party hereto without the requirement that the transferee be a Permitted Transferee. For the avoidance of doubt, to the extent Section 10.01 is
applicable to such Transfer, the ultimate Permitted Transferee must deliver a properly executed Transfer
Agreement to the Debtors in accordance with Section 15.10 unless such Permitted Transferee is a Consenting Lender as of the date of the Transfer.
10.06 Notwithstanding anything to the contrary in this Section 10, the restrictions on Transfer set forth in this Section 10 shall not apply to the grant of any liens or encumbrances on any claims and interests in favor of a bank or broker-dealer holding custody of
such claims and interests in the ordinary course of business and which lien or encumbrance is released upon the Transfer of such claims and interests.
(a) Each Consenting Lender, severally, and not jointly, represents and warrants that, as of the date such Consenting Lender executes and delivers this Agreement:
(i) it is (except as indicated on such Consenting Lender’s signature page with respect to validly executed but unsettled trades), the beneficial or record owner of the face amount of
the Company Claims/Interests or is the nominee, investment manager, or advisor for beneficial holders of the Company Claims/Interests
reflected in, and, having made reasonable inquiry, is not the beneficial or record owner of any Company Claims/Interests other than those reflected in, such Consenting Lender’s signature page to this Agreement, a Transfer Agreement or a Joinder, as applicable (as may be updated pursuant to Section 10);
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(ii) the Company Claims/Interests held by it are free and clear of any pledge, lien, security interest, charge, claim, equity,
option, proxy, voting restriction, right of first refusal, or other limitation on disposition, Transfer, or encumbrances of any kind, that would adversely affect in any way such Consenting Lender’s ability to perform any of its obligations under this Agreement at the time such obligations are required to be performed; and
(iii) (A) with
respect to settled trades, it has the full power to vote and consent to matters concerning all of its Company Claims/Interests referable to it as contemplated by this Agreement subject to applicable Law; and (B) with respect to trades that are
not settled by the Voting Record Date (as defined in the Disclosure Statement), it shall use commercially reasonable efforts to exercise all rights it has under the related trade confirmation to cause and direct the applicable record holder to
vote and consent to matters concerning all of its Company Claims/Interests referable to it as contemplated by this Agreement subject to applicable Law; and
(iv) in connection with the Plan, it has the
full power to settle and release all Settled Claims arising out of or relating to such Consenting Lender’s Company Claims/Interests or such Consenting Lender’s capacity as a creditor of the Debtors, including, as applicable, as a lender under
the 2016 Credit Agreement or the BrandCo Credit Agreement, as applicable.
(b) In addition to the representations and warranties set forth in Section 11(a), each Consenting Lender, severally, and not jointly, represents and warrants that,
as of the date such Consenting Lender executes and delivers this Agreement:
(i) it is either (A) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (B) not a U.S. person (as defined in Regulation S of the Securities Act), or (C) an institutional accredited
investor (as defined in rules 501(a)(1), (2), (3), and (7) of the Securities Act), and
(ii) any securities acquired by the Consenting Lender in connection with the Restructuring Transactions will have been acquired for investment and not with a
view to distribution or resale in violation of the Securities Act.
Section 12. Mutual Representations, Warranties, and Covenants. Each of the Parties represents, warrants, and covenants to each other Party, as of the date such Party executes and delivers this Agreement and as of the Plan Effective Date:
(a) except as to the Creditors’ Committee, such Party is validly existing and in good standing under the Laws of the state of its organization, and this Agreement is a legal, valid, and
binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable Laws relating to or limiting
creditors’ rights generally or by equitable principles relating to enforceability;
(b) as to the Creditors’ Committee, it was duly appointed by the Office of the United States Trustee on or about June 24, 2022 (as reconstituted from time to time) and continues to exist as such pursuant to Section 1102 of the Bankruptcy
Code;
(c) the entry into and performance by it of, and the transactions contemplated by, this Agreement do not, and will not, conflict in any material respect with any Law or regulation applicable to it or with any of its articles of
association, memorandum of association, or other constitutional documents;
(d) except as expressly provided in this Agreement, it has (or will have, at the
relevant time) all requisite corporate or other power and authority to enter into, execute, and deliver this Agreement
and to effectuate the Restructuring Transactions contemplated by, and perform its respective obligations under, this Agreement;
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(e) except as expressly provided by this Agreement,
it is not party to any restructuring or similar agreements or arrangements with the other Parties to this Agreement that have not been disclosed to all Parties to this Agreement; and
(f) it has been represented by legal counsel of its choosing in connection with this Agreement and the transactions contemplated by this Agreement, has had the
opportunity to review this Agreement with its legal counsel, and has not relied on any statements made by any other Party or its legal counsel as to the meaning of any term or condition contained herein or in deciding whether to enter into this Agreement or the transactions contemplated hereby.
13.01 Consenting BrandCo Lender Termination Events.
The Required Consenting BrandCo Lenders may terminate this Agreement
as to all Parties (except as otherwise provided below), by delivering a Termination Notice to counsel to the Debtors,
the Ad Hoc Group of 2016 Term Loan Lenders and the Creditors’ Committee in accordance with Section 15.10 hereof upon the occurrence of any of the following events, unless waived in writing by the Required Consenting BrandCo Lenders (such events, the “Consenting BrandCo Lender Termination Events”):
(a) the material breach by any Debtor, any Consenting 2016 Lender (or the Ad Hoc Group of 2016 Term Loan Lenders
acting at the direction of any Consenting 2016 Lender), or the Creditors’ Committee of any of the representations, warranties, or covenants of the Debtors,
the Consenting 2016 Lenders or the Creditors’ Committee, as applicable set forth in this Agreement that remains uncured (to the extent curable) for ten (10) Business Days after the Required
Consenting BrandCo Lenders transmit a Breach Notice in accordance with Section 15.10 hereof detailing any such breach; provided,
however, that (x) in the case of any breach according to the foregoing by the Creditors’ Committee, the Required
Consenting BrandCo Lenders may only terminate this Agreement as to the Creditors’
Committee and (y) in the case of any breach according to the foregoing by a Consenting 2016 Lender, the Required Consenting BrandCo Lenders may only terminate this Agreement as to such Consenting 2016 Lender; provided
that, in the case of any breach according to the foregoing by the Ad Hoc Group of 2016 Term Loan Lenders or by Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders that hold a majority of the aggregate principal
amount of the 2016 Term Loan Claims held by Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders, the Required Consenting BrandCo Lenders may terminate this Agreement as to all Consenting 2016 Lenders that are
members of the Ad Hoc Group of 2016 Term Loan Lenders;
(b) any of the Milestones set forth in Section 4 (as may be extended or waived in accordance with this Agreement) has not been achieved by the date specified for such Milestone, unless such failure is the result of any act,
omission, or delay on the part of the Required Consenting BrandCo Lenders in violation of their obligations under this Agreement;
(c) any Debtor files, amends, modifies, executes, or enters into, or files a pleading seeking authority to execute, enter into, amend or modify, any Definitive Document that is not in form or substance consistent with this Agreement,
including the consent rights of the Required Consenting BrandCo Lenders set forth in Section 3 of this Agreement, or publicly announces its intention to take any such
action;
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(d) the issuance by any governmental authority, including the Bankruptcy Court, any regulatory authority or court of competent jurisdiction, of any final,
non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions, or (ii) (A) would prevent the consummation of a material portion of the
Restructuring Transactions, and (B) remains in effect for ten (10) Business Days after such terminating Required Consenting BrandCo Lenders transmit a written notice in accordance with Section 15.10 detailing any such issuance; notwithstanding the
foregoing, this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(e) any Debtor or the Creditors’ Committee (i) provides a Fiduciary
Out Notice or Alternative Restructuring Counterproposal Notice to counsel to the Ad Hoc Group of BrandCo Lenders or (ii) publicly announces or executes a definitive agreement with respect to an Alternative Restructuring Proposal; provided, however
that in the case of any breach by the Creditors’ Committee according to the foregoing, the Required Consenting BrandCo Lenders may only
terminate this Agreement as to the Creditors’ Committee;
(f) any Debtor files any motion or application seeking authority to sell any material asset or right used in the business of the Debtors
to any Entity outside the ordinary course of business without the prior written consent of the Required Consenting BrandCo Lenders, or provides notice thereof to counsel to the Ad Hoc Group of
BrandCo Lenders;
(g) the entry of an order by the Bankruptcy Court or other court of competent jurisdiction, or the filing of a motion or application by any Debtor, any Consenting 2016 Lender, the Ad Hoc Group of 2016 Term Loan Lenders, or the Creditors’ Committee seeking an order (without the prior written consent
of the Required Consenting BrandCo Lenders):
(i) (A) converting one or more of the Chapter 11 Cases of a Debtor to a case under chapter 7 of the Bankruptcy Code; (B) appointing a trustee, receiver, or an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code in one or more of the Chapter 11 Cases of a Debtor; (C) dismissing the Chapter 11 Cases; or (D) terminating any of the Debtors’ exclusive right to file a plan pursuant to section 1121 of the Bankruptcy Code;
(ii) (A) approving the rejection of this Agreement or
the Backstop Commitment Agreement, or (B) denying approval of the Backstop Motion;
(iii) (A) denying confirmation of the Plan, or confirming the Plan pursuant to an order that is not in form
and substance consistent with this Agreement, including the consent rights set forth in Section 3, and such order remains in effect for (10) Business Days after entry thereof; (B) reversing or vacating the Confirmation Order; or (C) approving any plan, disclosure
statement, or Definitive Document, in any such case, that is not in form or substance consistent with this Agreement, including the consent rights set forth in Section 3; or
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(iv) granting relief from the automatic stay (as set forth in Section 362 of the Bankruptcy Code)
authorizing any party or Entity to proceed against any asset of a Debtor in excess of $25 million without the consent of the Required Consenting BrandCo Lenders;
provided that (x) upon any such filing by the Creditors’ Committee, the Required Consenting BrandCo Lenders may terminate this Agreement solely as to the Creditors’ Committee
and (y) upon any such filing by any Consenting 2016 Lender, the Required Consenting BrandCo Lenders may terminate this Agreement solely as to such Consenting 2016 Lender; provided that, upon any such filing
by the Ad Hoc Group of 2016 Term Loan Lenders or by Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders that hold a majority of the aggregate principal amount of the 2016 Term Loan Claims held by Consenting 2016
Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders, the Required Consenting BrandCo Lenders may terminate this Agreement as to all Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders.
(h) the Debtors take any action or inaction to receive or obtain debtor-in-possession financing, cash collateral usage, exit
financing, and/or financing arrangements, other than as expressly contemplated in this Agreement, the Final DIP Order, or with the consent of the Required Consenting BrandCo Lenders;
(i) [reserved];
(j) the occurrence and continuation of an event of default under, or the termination of, the Term DIP Credit Agreement (as defined in the Final DIP Order), ABL DIP Credit Agreement (as defined in the Final DIP Order), the Final DIP Order, the Backstop Commitment Agreement, or the Equity Rights Offering Documents;
(k) any Debtor, any Consenting 2016 Lender, the Ad Hoc Group of 2016 Term Loan Lenders, or the Creditors’ Committee
(i) investigates, asserts, prosecutes, or supports, directly or indirectly, including by filing any document in support of, propounding discovery in support of, advocating to the Bankruptcy Court in
favor of, or transfers material work product in furtherance of another’s support of (except to the extent the transferor in complying with applicable Law), any Settled Litigation or (ii) consents to the standing of any third party to bring a motion, application, adversary
proceeding, or other action or proceeding in respect of any Settled Litigation; provided that (x) upon any such action or consent by the Creditors’ Committee, the Required Consenting BrandCo Lenders may terminate this Agreement solely as to the Creditors’ Committee and (y) upon any such action or consent by any Consenting 2016
Lender, the Required Consenting BrandCo Lenders may terminate this Agreement solely as to such Consenting 2016 Lender; provided that, upon any such action or consent by the Ad Hoc Group of 2016 Term Loan
Lenders or by Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders that hold a majority of the aggregate principal amount of the 2016 Term Loan Claims held by Consenting 2016 Lenders that are members of the Ad Hoc
Group of 2016 Term Loan Lenders, the Required Consenting BrandCo Lenders may terminate this Agreement as to all Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders;
(l) the failure of the Debtors to promptly pay the reasonable fees and expenses of the Ad Hoc Group of BrandCo Lenders in accordance with this Agreement;
(m) any Debtor enters into any key employee incentive plan or key employee retention plan, any new or amended agreement regarding
executive compensation, or other compensation agreement, in each case, outside of the ordinary course of business without obtaining the prior written consent of the Required Consenting BrandCo Lenders;
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(n) the failure of the Consenting 2016 Lenders to constitute holders (or investment advisors, sub-advisors, or managers of discretionary accounts of holders) of, in the aggregate, at least two-thirds of the
aggregate outstanding principal amount of 2016 Term Loans (inclusive of validly executed but unsettled trades as to which such Consenting 2016 Lenders have the power to direct the vote and consent in respect of such 2016 Term Loans); provided that, in such event, the Required Consenting BrandCo Lenders may terminate this Agreement solely as to all Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders; or
(o) the Adversary Stay and Dismissal Order
shall not have been entered by the Bankruptcy Court on or before February 24, 2023, or shall have been vacated, withdrawn, terminated, amended or otherwise no longer in full force and effect with respect to any plaintiff to the Adversary
Proceeding; provided that, in such event, the Required Consenting BrandCo Lenders may terminate this Agreement solely as to all Consenting 2016 Lenders that are members
of the Ad Hoc Group of 2016 Term Loan Lenders.
13.02 Consenting 2016 Lender Termination Events. The Required Consenting 2016 Lenders may terminate this Agreement as to all
Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders by delivering a Termination Notice to counsel to the Debtors, the Ad Hoc Group of BrandCo Lenders, and the Creditors’ Committee in accordance with Section 15.10
hereof upon the occurrence of any of the following events, unless waived in writing by the Required Consenting 2016 Lenders (such events, the “Consenting 2016 Lender Termination Events”):
(a) the material breach by any Debtor, the Consenting BrandCo Lenders holding a majority of the 2020 Term B-1 Loan Claims and the 2020 Term B-2 Loan Claims held by the Ad Hoc Group of BrandCo Lenders, or the
Creditors’ Committee of any of the representations, warranties, or covenants of the Debtors, the Consenting BrandCo Lenders, or the Creditors’ Committee, as applicable, set forth in this Agreement that remains uncured (to the extent curable) for ten
(10) Business Days after the Required Consenting 2016 Lenders transmit a Breach Notice in accordance with Section 15.10 hereof detailing any such breach;
(b) this Agreement or the Plan is amended or
modified without the prior written consent of the Required Consenting 2016 Lenders in any manner that has a material, disproportionate and adverse effect on the treatment or economic recovery of the OpCo Term Loan Claims (including in a manner
that disproportionately and materially adversely affects OpCo Term Loan Claims as a class as compared to 2020 Term B-2 Loan Claims as a class);
(c) the termination of the Backstop
Commitment Agreement as to the 2016 Lender Equity Commitment Parties (as defined in the Backstop Commitment Agreement); or
(d) the Debtors (i) (A) provide a Fiduciary
Out Notice to counsel to the Ad Hoc Group of 2016 Term Lenders or (B) publicly announce or execute a definitive agreement with respect to an Alternative Restructuring Proposal, and (ii) publicly announce their intention to withdraw the Plan and
not support the Restructuring Transactions.
13.03 Creditors’ Committee Termination Events. The Creditors’ Committee may terminate this Agreement as to itself, by delivering a Termination Notice to counsel to
the Debtors, the Consenting BrandCo Lenders and the Consenting 2016 Lenders in accordance with Section 15.10
hereof upon the occurrence of any of the following events, unless waived (such events, the “Creditors’ Committee Termination Events” and, together with the Consenting BrandCo Lender Termination Events and the Consenting 2016 Lender Termination Events, the “Consenting Creditor Parties
Termination Events”):
(a) the material breach by a Debtor or the Required Consenting BrandCo Lenders of any of the representations,
warranties, or covenants of the Debtors or the Consenting BrandCo Lenders, as applicable, set forth in this Agreement that (i) adversely affects the rights, obligations, or interests of holders of General Unsecured
Claims and/or Unsecured Notes Claims and (ii) remains uncured (to the extent curable) for ten (10) Business Days after the Creditors’ Committee transmits a Breach Notice in accordance with Section 15.10 hereof detailing any such
breach; or
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(b) this Agreement or the Plan is amended or
modified without the prior written consent of the Creditors’ Committee in any manner that is adverse to the treatment of General Unsecured
Claims and/or Unsecured Notes Claims.
13.04 Debtor Termination Events. Any Debtor
may terminate this Agreement as to all Parties (except as otherwise provided
below) by delivering written notice to all Parties in accordance with Section 15.10 hereof upon the occurrence of any of the following events (such events, the “Debtor Termination Events” and, together with the Consenting Lender Termination Events, the “Termination Events”):
(a) the board of directors, board of managers, restructuring officer, or such similar governing body of any Debtor determines in good faith,
after consulting with counsel, (i) that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of its fiduciary
duties or its compliance with applicable Law, or (ii) in the exercise of its fiduciary duties, to pursue an Alternative
Restructuring Proposal;
(b) the issuance by any governmental authority, including the Bankruptcy Court, any regulatory authority or court of competent
jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions, and (ii) remains in effect for ten (10) Business Days after such terminating Debtor transmits a written notice in accordance with Section 15.10 hereof
detailing any such issuance; provided that this termination right shall not apply to or be exercised by any Debtor that sought or requested such ruling or order in
contravention of any obligation or restriction set out in this Agreement;
(c) the material breach by any Consenting Lender or the Creditors’ Committee of any of the representations, warranties, or covenants made thereby set forth in this Agreement that remains uncured for a period of ten (10) Business Days after the receipt by counsel to the Creditors’
Committee, the Ad Hoc Group of BrandCo Lenders, and the Ad Hoc Group of 2016 Term Loan Lenders of a Breach Notice; provided, however,
that (x) in the case of a breach by the Creditors’ Committee according to the foregoing, the Debtors may solely terminate this Agreement as to the Creditors’ Committee, (y) in the case of a breach by any Consenting BrandCo Lender according
to the foregoing, the Debtors may choose to terminate this Agreement solely as to such Consenting BrandCo Lender, and (z) in the case of a breach by any Consenting 2016 Lender according to the foregoing, the Debtors may solely terminate this
Agreement as to such Consenting 2016 Lender;
(d) the failure of the Consenting BrandCo Lenders to constitute holders (or investment advisors, sub-advisors, or managers of discretionary accounts of
holders) of, in the aggregate, at least two-thirds of the aggregate outstanding principal amount of 2020 Term B-1 Loans;
(e) the failure of the Consenting BrandCo Lenders to constitute holders (or investment advisors, sub-advisors, or managers of
discretionary accounts of holders) of, in the aggregate, at least two-thirds of the aggregate outstanding principal amount of 2020 Term B-2 Loans;
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(f) the failure of the Consenting 2016 Lenders
to constitute holders (or investment advisors, sub-advisors, or managers of discretionary accounts of holders) of, in the aggregate, at least two-thirds of the combined aggregate amount of (i) Allowed 2016 Term Loan Claims (inclusive of validly
executed but unsettled trades as to which such Consenting 2016 Lenders have the power to direct the vote and consent in respect of such 2016 Term Loans) and (ii) Allowed 2020 Term B-3 Loan Claims; provided that, in such event, the Debtors may terminate this Agreement solely as to all Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders.; or
(g) the failure of the Required Consenting BrandCo Lenders to, by March 2, 2023, reach an agreement with the Debtors on the
terms and conditions of the Global Bonus Program in a form and manner consistent with this Agreement, the Executive Employment Term Sheet and the Executive Severance Term Sheet (as applicable); provided that
so long as the Required Consenting BrandCo Lenders continue to negotiate such terms in good faith, the Debtors shall not terminate this Agreement.
13.05 Mutual Termination. This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual written agreement among all of the
following: (a) the Required Consenting BrandCo Lenders; (b) the Required Consenting 2016 Lenders; (c) the Creditors’ Committee; and (d) each
Debtor.
13.06 Automatic Termination. This Agreement shall terminate automatically without any further required action or notice immediately after the occurrence of the Plan Effective Date.
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13.07 Effect of
Termination. Upon the occurrence of a Termination Date as to a Party, except as provided in this section or Section 6 hereof, this Agreement shall be of no further force or effect as to such Party and each Party
subject to such termination shall be released from its commitments, undertakings, and agreements under or related to this Agreement and shall have the rights and remedies that it would have had, had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the Restructuring
Transactions or otherwise, that it would have been entitled to take had it not entered into this Agreement,
including with respect to any and all Claims or causes of action. Upon a termination of this Agreement solely as to the Creditors’ Committee or that arises from any breach of this Agreement by the Creditors’ Committee, the other Parties shall have
no further obligations to the Creditors’ Committee hereunder, or to any other Party with respect to the treatment of General Unsecured Claims and/or Unsecured Notes Claims under the Plan. Upon a termination of this
Agreement solely as to the Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders or that arises from any breach of this Agreement by the Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term
Loan Lenders, the other Parties shall have no further obligations to the Consenting 2016 Lenders that are members of the Ad Hoc Group of 2016 Term Loan Lenders with respect to the treatment of their OpCo Term Loan Claims under the Plan as
provided under this Agreement, and the treatment of the OpCo Term Loan Claims of such Consenting 2016 Lenders may be reverted to the treatment contemplated under the Original RSA; provided
that such terminated Consenting 2016 Lenders shall retain all rights to contest such treatment. Upon the occurrence of a Termination Date other than pursuant to Section 13.06, (x) any and all consents or ballots tendered prior to such Termination Date by the Parties
subject to such termination shall automatically be deemed, for all purposes, to be null and void from the first instance and shall not be considered or otherwise used in any manner by the Parties in
connection with the Plan, the Restructuring Transactions or otherwise; and (y) such ballots may be changed or resubmitted regardless of whether the
applicable voting deadline has passed (without the need to seek a court order or consent from the Debtors allowing such change or resubmission); provided, however, that any Consenting Lender withdrawing or changing its vote pursuant to this Section 13.07 shall promptly provide written notice of such withdrawal or change to each other Party to this Agreement. Nothing in this Agreement shall be construed as prohibiting any Party from contesting whether any such termination is in accordance with the terms of this Agreement or to seek enforcement of any rights under this Agreement that arose or existed before a Termination Date. Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict any right of any Party or the ability of any Party to protect and reserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any other Party. No purported termination of this Agreement shall be effective under this Section
13.07 or otherwise if the Party seeking to terminate this Agreement
is in material breach of this Agreement, with such material breach causing, or resulting in, the occurrence of one
or more Termination Events. Nothing in this Section 13.07 shall restrict any Debtor’s
right to terminate this Agreement in accordance with Section 13.04(a). Following the occurrence of a Termination Date, the following shall survive any such termination: (a) any claim for breach of this Agreement that occurs prior to such Termination Date, and all rights
and remedies with respect to such claims shall not be prejudiced in any way; (b) the Debtors’ obligations in Section 15.22
of this Agreement up to and including such Termination Date, and
after any such Termination Date arising under Section 13.06; and (c) Sections 1.02, 6.01, 6.02, 13.07, 15.01,
15.02, 15.04, 15.05,
15.06, 15.07, 15.08,
15.09, 15.10, 15.11,
15.13, 15.14, 15.15,
15.16, 15.17, 15.18,
and 15.19 hereof. The automatic stay applicable under section 362 of the Bankruptcy Code
shall not prohibit a Party from taking any action or delivering any notice necessary to effectuate the termination of this Agreement pursuant to and in accordance with the terms hereof. For the avoidance of doubt, in the event that any provision of this Section
13.07 conflicts with Section 6 hereof, Section 6 shall control.
(a) Except as otherwise set forth in this Section 14, this Agreement (including the
exhibits, annexes, and schedules hereto (including the Plan)) may not be modified, amended, or supplemented, and no condition or requirement of this Agreement may be waived, in any manner without the prior written consent of each of the Debtors and the Required
Consenting BrandCo Lenders; provided that (i) if the proposed modification, amendment, waiver, or supplement has a material, disproportionate, and adverse effect on the
rights of the holders of General Unsecured Claims and/or Unsecured Notes Claims, then the consent of the Creditors’ Committee shall also be required to effectuate such modification, amendment, waiver, or supplement; (ii) if the proposed modification, amendment, waiver, or supplement has a material,
disproportionate, and adverse effect on the treatment or economic recovery of the OpCo Term Loan Claims (including in a manner that disproportionately and materially adversely affects OpCo Term Loan Claims as a class as compared to 2020 Term B-2
Loan Claims as a class), then the consent of the Required Consenting 2016 Lenders shall also be required to effectuate such modification, amendment, waiver, or supplement; and (iii) if the proposed modification, amendment, waiver, or supplement
has a material, disproportionate, and adverse effect on the treatment or economic recovery of any of the Company Claims/Interests held by a Consenting Lender, then the consent of each such affected Consenting Lender shall also be required to
effectuate such modification, amendment, waiver, or supplement.
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(b) Any proposed modification, amendment, waiver, or supplement that does not comply with this Section 14 shall be ineffective and void ab initio.
(c) The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy under this Agreement
shall operate as a waiver of any such right, power, or remedy or any provision of this Agreement, nor shall any single
or partial exercise of such right, power, or remedy by such Party preclude any other or further exercise of such right, power, or remedy or the exercise of any other right, power, or remedy. All remedies
under this Agreement are cumulative and are not exclusive of any other remedies provided by Law.
(d) Any consent or waiver contemplated in this Section 14 may be provided by electronic mail from counsel to the relevant Party.
15.01 Acknowledgement. Notwithstanding any other provision herein, this Agreement is not and shall not be deemed to be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for
purposes of sections 1125 and 1126 of the Bankruptcy Code or otherwise. Any such offer or solicitation will be made only in compliance with all applicable securities Laws,
provisions of the Bankruptcy Code, and/or other applicable Law.
15.02 Exhibits Incorporated by Reference; Conflicts. Each of the exhibits, annexes, signatures pages,
and schedules attached hereto is expressly incorporated herein and made a part of this Agreement, and all references to
this Agreement shall include such exhibits, annexes, and schedules. In the event of any inconsistency between this Agreement (without reference to the exhibits, annexes, and schedules hereto) and the exhibits, annexes, and schedules
hereto (including the Plan), this Agreement (without reference to the exhibits, annexes, and schedules thereto) shall
govern.
15.03 Further Assurances. Subject to the other terms of this Agreement during the Agreement Effective Period, the Parties agree
to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, or as may be required by order of the Bankruptcy
Court, from time to time, to effectuate the Restructuring Transactions, as applicable.
15.04 Complete Agreement. Except as otherwise explicitly provided herein, this Agreement
constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements,
oral or written, among the Parties with respect thereto, other than any Confidentiality Agreement.
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15.05 GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF FORUM. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each Party hereto agrees that
it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the
extent possible, in the Bankruptcy Court, and solely in connection with claims arising under this Agreement: (a) irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court; (b) waives any objection to laying venue in any such action or
proceeding in the Bankruptcy Court; and (c) waives any objection that the Bankruptcy Court is an inconvenient forum or does not have jurisdiction over
any Party hereto.
15.06 TRIAL BY JURY WAIVER. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.07 Execution of Agreement. This Agreement may be executed and delivered in any number
of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement.
Except as expressly provided in this Agreement, each individual executing this Agreement on behalf of a Party has been duly authorized and empowered to execute and deliver this Agreement on behalf of said Party. No Party
or its advisors shall disclose to any Person or Entity (including, for the avoidance of doubt, any other Party) the holdings information of any Consenting Lender without such Consenting Lender’s prior written consent; provided that signature pages executed by Consenting Lenders shall be delivered to (a) all Consenting Lenders
in redacted form that removes the details of such Consenting Lenders’ holdings of the Company Claims/Interests listed thereon, (b) the Debtors in unredacted form (to be held by the Debtors on a professionals’ eyes-only basis), and (c) the Creditors’
Committee in redacted form that removes the details of Consenting Lenders’ holdings of the Company Claims/Interests listed thereon. Any
public filing of this Agreement, with the Bankruptcy Court or
otherwise, which includes executed signature pages to this Agreement shall include such signature pages only in redacted
form with respect to the holdings of each Consenting Lender, unless specifically required by the Bankruptcy Code.
15.08 Rules of Construction. This Agreement is the product of negotiations among the Debtors and the Consenting Creditor Parties, and in the
enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party
having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the
interpretation hereof. The Debtors and the Consenting Creditor Parties were each represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel.
15.09 Successors and Assigns; Third Parties. This Agreement is intended to bind and inure to the benefit of the Parties and their
respective successors and permitted assigns, as applicable. There are no third-party beneficiaries under this Agreement, and, except as set forth in Section 10, the rights or obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other Person or Entity.
15.10 Notices. All notices hereunder shall be deemed given if in writing and delivered, by electronic mail, courier, or registered or certified mail (return
receipt requested), to the following addresses (or at such other addresses as shall be specified by like notice):
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Revlon, Inc.
55 Water St., 43rd Floor
55 Water St., 43rd Floor
New York, NY 10041-0004
Attention: Andrew Kidd, EVP, General Counsel
Matthew Kvarda, Interim Chief Financial Officer
Email: Andrew.Kidd@revlon.com
Mkvarda@alvarezandmarsal.com
with copies to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Facsimile: (212) 757-3990
Attention: Paul M. Basta
Alice B. Eaton
Kyle J. Kimpler
Robert A. Britton
Brian Bolin
Sean A. Mitchell
Email: pbasta@paulweiss.com
Email: pbasta@paulweiss.com
aeaton@paulweiss.com
kkimpler@paulweiss.com
rbritton@paulweiss.com
bbolin@paulweiss.com
smitchell@paulweiss.com
To the address set forth on its signature page hereto or such Consenting BrandCo Lender’s Transfer Agreement or Joinder, as applicable
with copies to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Facsimile: (212) 701-5331
Attention: Eli J. Vonnegut
Angela M. Libby
with copies to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Facsimile: (212) 701-5331
Attention: Eli J. Vonnegut
Angela M. Libby
Stephanie Massman
Email: eli.vonnegut@davispolk.com
Email: eli.vonnegut@davispolk.com
angela.libby@davispolk.com
stephanie.massman@davispolk.com
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To the address set forth on such Consenting 2016 Lender’s Transfer Agreement or Joinder, as applicable
with copies to:
Akin Gump Strauss Hauer & Feld LLP
2001 K Street, N.W.
Washington, D.C. 20006
Facsimile: (202) 887-4288
Attention: James Savin
Kevin Zuzolo
Email: jsavin@akingump.com
kzuzolo@akingump.com
Brown Rudnick LLP
Seven Times Square
New York, New York 10036
Facsimile: (212) 209-4801
Attention: Robert J. Stark
Bennett S. Silverberg
Email: rstark@brownrudnick.com
Seven Times Square
New York, New York 10036
Facsimile: (212) 209-4801
Attention: Robert J. Stark
Bennett S. Silverberg
Email: rstark@brownrudnick.com
bsilverberg@brownrudnick.com
Any notice given by delivery, mail, or courier shall be effective when received.
15.11 Reservation of Rights; Waiver. If the Restructuring Transactions are
not consummated, or if this Agreement is terminated for any reason pursuant to Section
13 (other than pursuant to Section 13.06), the Parties each fully reserve any and all of their respective rights, remedies, claims, and interests,
subject to Sections 14 and Section 6 herein, in the case of any claim for breach of this Agreement. Further, nothing herein shall be construed to prohibit any Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as, during the Agreement
Effective Period, such appearance and the positions advocated in connection therewith are consistent with this Agreement
and any Definitive Document and are not for the purpose of, and could not reasonably be expected to have the effect of, hindering, delaying, or preventing the consummation of the Restructuring Transactions.
15.12 Independent Due Diligence and Decision-Making. Each Consenting
Creditor Party hereby confirms that its decision to execute this Agreement has been based upon its independent
investigation of the operations, businesses, financial, and other conditions, and prospects of the Debtors.
15.13 Settlement or Compromise. Pursuant to Federal Rule of Evidence 408 and
any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into
evidence in any proceeding other than a proceeding to enforce its terms, pursue the consummation of the Restructuring Transactions, or the payment of damages to which a Party may be entitled under this Agreement.
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15.14 Specific Performance. It is understood and agreed by the Parties that money damages
would be an insufficient remedy for any breach of this Agreement by any Party,
and, except as otherwise provided herein (including Section 6.02 hereof), each non-breaching Party shall be entitled to specific performance and injunctive or
other equitable relief (without the posting of any bond and without proof of actual damages) as a remedy of any such breach, including an order of the Bankruptcy Court or other court of competent
jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. Notwithstanding anything to the contrary in this Agreement, none of the Parties will be liable for, and none of the Parties shall
claim or seek to recover, any punitive, special, indirect, or consequential damages or damages for lost profits.
15.15 Several, Not Joint, Claims. Except where otherwise specified, the agreements,
representations, warranties, and obligations of the Consenting Creditor Parties under this Agreement are, in all respects, several and not joint.
15.16 Severability and Construction. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect if essential terms and conditions of this
Agreement for each Party remain valid, binding, and enforceable.
15.17 Remedies Cumulative. Except as otherwise provided herein (including Section 6.02
hereof), all rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at Law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later
exercise of any other such right, power, or remedy by such Party.
15.18 Capacities of Consenting Lenders. Each Consenting Lender has entered into this Agreement on account of all Company Claims/Interests that it holds (directly or through discretionary
accounts that it manages or advises) and, except where otherwise specified in this Agreement, shall take or refrain from
taking all actions that it is obligated to take or refrain from taking under this Agreement with respect to all such Company Claims/Interests.
15.19 Email Consents. Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated by this Agreement, pursuant to Section 3, Section 14, or otherwise, including a written approval by the Debtors, the Required Consenting BrandCo
Lenders, the Required Consenting 2016 Lenders, and the Creditors’ Committee, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if, by agreement between counsel to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed in writing (including electronic mail)
between each such counsel without representations or warranties of any kind on behalf of such counsel.
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15.20 Enforceability of Agreement.
Each of the Parties waives any right to assert that the exercise of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code, and expressly stipulates and consents hereunder to the prospective modification of
the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, to the extent the Bankruptcy Court determines that such relief is required.
(a) None of the Consenting Creditor Parties shall have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities in
any kind or form to each other, any Consenting Creditor Party, any Debtor, or any of the Debtor’s
respective creditors or other stakeholders, and there are no commitments among or between the Consenting Lenders as a result of this Agreement or the transactions contemplated herein or in the Plan,
in each case except as expressly set forth in this Agreement. Nothing contained in this Agreement, and no action taken by any Consenting Lender pursuant hereto is intended to constitute the Consenting Lenders as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that any Consenting Lender is in any way acting in concert or as a member of a “group” with any other Consenting Lender or Consenting Lenders within the meaning of Rule 13d-5
under the Securities Exchange Act of 1934, as amended. As of the date hereof and for so long as this Agreement remains in effect, the Parties have no agreement, arrangement or understanding with respect to acting together for the purpose of
acquiring, holding, voting or disposing of any securities of any of the Debtors and do not constitute a “group” within the meaning of Section 13(d)(3) of the Exchange Act or Rule 13d-5 promulgated thereunder.
(b) The Debtors acknowledge that the Consenting Lenders are engaged in a wide range of financial services and businesses, and, in furtherance of the foregoing, the Consenting Lenders and the Debtors acknowledge and agree that the obligations set forth in this Agreement
shall only apply to the trading desk(s) and/or business group(s) of the Consenting Lenders that principally manage and/or supervise such Consenting Lender’s investment in the Debtors, and shall not apply to any other trading desk or business group of such Consenting Lender so long as they are not acting at the direction or for the benefit of such Consenting Lender.
15.22 Fees and Expenses. The Debtors shall promptly pay or reimburse
when due all reasonable and documented fees and expenses of (a) the BrandCo Lender Group Advisors incurred prior to and during the Agreement Effective Period and after any termination pursuant
to Section 13.06, and (b) subject to the terms and conditions set forth herein or in the Final DIP Order and consistent with the orders and
procedures applicable to the payment of compensation to estate professionals, the Creditors’ Committee; provided that nothing herein shall alter or modify
the Debtors’ payment obligations under the Final DIP Order or any other order of the Bankruptcy Court governing
compensation of estate professionals. On the Plan Effective Date, subject to the terms and conditions set forth in the Plan and so long as this Agreement has not been terminated as to all of the Consenting 2016 Lenders that are members of the Ad Hoc
Group of 2016 Term Loan Lenders, the Debtors shall pay or reimburse all reasonable and documented fees and expenses of (x) the 2016 Term Loan Lender Group Advisors incurred prior to February 16, 2023, in an aggregate amount not to exceed $11 million
(excluding any fees and expenses paid to the 2016 Term Loan Lender Group Advisors prior to February 16, 2023) and (y) Akin Gump Strauss Hauer & Feld LLP, as counsel to the Ad Hoc Group of 2016 Term Loan Lenders, incurred after February 16, 2023
through the Plan Effective Date, in an aggregate amount not to exceed $350,000 per month (with such cap prorated for any partial months during such period); provided that such fees and expenses referenced in
this clause (y) shall be limited to amounts incurred in furtherance of the Restructuring Transactions and shall be subject to the limitations on the use of funds set forth in paragraph 28 of the Final DIP Order.
[Remainder of Page Intentionally Left Blank]
38
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first
above written.
REVLON, INC., and each of the Debtors
listed on Exhibit A to this Agreement
listed on Exhibit A to this Agreement
|
/s/ Robert M. Caruso
|
||
|
Name:
|
Robert M. Caruso
|
|
|
Title:
|
Authorized Signatory
|
[Debtor Signature Page to Amended and Restated Restructuring Support Agreement]
Consenting BrandCo Lender Signature Page to
the Amended and Restated Restructuring Support Agreement
the Amended and Restated Restructuring Support Agreement
[Consenting BrandCo Lender Signature Pages are on file with the Debtors]
[Consenting BrandCo Lender Signature Page to Amended and Restated Restructuring Support Agreement]
Consenting 2016 Lender Signature Page to
the Amended and Restated Restructuring Support Agreement
the Amended and Restated Restructuring Support Agreement
[Consenting 2016 Lender Signature Pages are on file with the Debtors]
[Consenting 2016 Lender Signature Page to Amended and Restated Restructuring Support Agreement]
Creditors’ Committee Signature Page to
the Amended and Restated Restructuring Support Agreement
the Amended and Restated Restructuring Support Agreement
[Creditors’ Committee Signature Page is on file with the Debtors]
[Creditors’ Committee Signature Page to Amended and Restated Restructuring Support Agreement]
Exhibit A
Debtors
|
Elizabeth Arden USC, LLC
BrandCo Almay 2020 LLC
Elizabeth Arden, Inc.
BrandCo Charlie 2020 LLC
FD Management, Inc.
BrandCo CND 2020 LLC
North America Revsale Inc.
OPP Products, Inc.
Almay, Inc.
BrandCo Curve 2020 LLC
RDEN Management, Inc.
BrandCo Elizabeth Arden 2020 LLC
Art & Science, Ltd.
Realistic Roux Professional Products Inc.
Roux Laboratories, Inc.
BrandCo Giorgio Beverly Hills 2020 LLC
Revlon Development Corp.
Roux Properties Jacksonville, LLC
BrandCo Halston 2020 LLC
Revlon Government Sales, Inc.
SinfulColors Inc.
BrandCo Jean Nate 2020 LLC
RML, LLC
Revlon International Corporation
Bari Cosmetics, Ltd.
PPI Two Corporation
Revlon Professional Holding Company LLC
BrandCo Mitchum 2020 LLC
Revlon (Puerto Rico) Inc.
Riros Corporation
BrandCo Multicultural Group 2020 LLC
Elizabeth Arden (UK) Ltd.
Riros Group Inc.
Beautyge Brands USA, Inc.
Elizabeth Arden (Canada) Limited
BrandCo PS 2020 LLC
BrandCo White Shoulders 2020 LLC
Revlon Canada Inc.
Beautyge USA, Inc.
|
Beautyge I
Charles Revson Inc.
Beautyge II, LLC
Creative Nail Design, Inc.
Cutex, Inc.
DF Enterprises, Inc.
Elizabeth Arden (Financing), Inc.
Elizabeth Arden Investments, LLC
Elizabeth Arden NM, LLC
Elizabeth Arden Travel Retail, Inc.
|
Plan
Exhibit C
[Joinder to Amended and Restated Restructuring Support Agreement]
Exhibit D
The undersigned (“Joinder Party”)
hereby acknowledges that it has read and understands the Amended and Restated Chapter 11 Restructuring Support Agreement, dated as of February 21, 2023 (the “Agreement”),1 by and
among Revlon and its affiliates and subsidiaries bound thereto and the Consenting Creditor Parties, and agrees to be bound by the terms and conditions
thereof, and shall be deemed a (a) “Consenting Creditor Party” and (b) “Consenting BrandCo Lender” or “Consenting 2016 Lender”, as
applicable, under the terms of the Agreement.
The Joinder Party specifically agrees to be bound by the terms and conditions of the Agreement and makes all representations and warranties contained in the Agreement applicable to a Consenting Creditor Party as of the date hereof and any further date specified in the Agreement, in each case, applicable to such class of Consenting Creditor Party.
Date Executed:
Name:
Title:
Address:
Email address(es):
|
Aggregate Principal Amounts Beneficially Owned or Managed on Account of:
|
|
|
ABL DIP Facility
|
|
|
Term DIP Facility
|
|
|
FILO ABL Claims
|
|
|
2020 Term B-1 Loan Claims
|
|
|
2020 Term B-2 Loan Claims
|
|
|
2020 Term B-3 Loan Claims
|
|
|
2016 Term Loan Claims
|
|
|
Unsecured Notes Claims
|
|
|
General Unsecured Claims
|
|
|
Interests
|
|
| 1 |
[Joinder to Amended and Restated Restructuring Support Agreement]
The undersigned (“Transferee”) hereby acknowledges that it has read and understands the Amended and Restated Chapter 11 Restructuring Support Agreement, dated as of February
21, 2023 (the “Agreement”),1
by and among the Debtors and the Consenting Creditor Parties, including the transferor to the Transferee of
any Company Claims/Interests (each such transferor, a “Transferor”), and agrees to be bound by the terms and conditions thereof to the extent the Transferor was thereby bound, and shall be deemed a (a) “Consenting Creditor Party” and (b) “Consenting BrandCo Lender” or “Consenting 2016 Lender”, as applicable, under the terms of the Agreement.
The Transferee specifically agrees to be bound by the terms and conditions of the Agreement and makes all representations and warranties contained in the Agreement applicable to a Consenting Creditor Party as of the date of the Transfer, including the agreement to be bound by the vote of (and release of claims and actions by) the Transferor if such
vote was cast (or release granted) before the effectiveness of the Transfer discussed herein.
Date Executed:
Name:
Title:
Address:
Email address(es):
|
Aggregate Principal Amounts Beneficially Owned or Managed on Account of:
|
|
|
ABL DIP Facility
|
|
|
Term DIP Facility
|
|
|
FILO ABL Claims
|
|
|
2020 Term B-1 Loan Claims
|
|
|
2020 Term B-2 Loan Claims
|
|
|
2020 Term B-3 Loan Claims
|
|
|
2016 Term Loan Claims
|
|
|
Unsecured Notes Claims
|
|
|
General Unsecured Claims
|
|
|
Interests
|
|
| 1 |
[Transfer Agreement to Amended and Restated Restructuring Support Agreement]
Exhibit 10.2
EXECUTION VERSION
AMONG
REVLON, INC.
REVLON CONSUMER PRODUCTS CORPORATION
EACH OF THE OTHER DEBTORS LISTED ON SCHEDULE 1 HERETO
AND
THE EQUITY COMMITMENT PARTIES PARTY HERETO
Dated as of February 21, 2023
TABLE OF CONTENTS
| Page |
||
|
ARTICLE I DEFINITIONS
|
2
|
|
|
Section 1.1
|
Definitions.
|
2
|
|
Section 1.2
|
Construction.
|
17
|
|
ARTICLE II BACKSTOP COMMITMENT
|
18
|
|
|
Section 2.1
|
The Equity Rights Offering.
|
18
|
|
Section 2.2
|
The Subscription Commitment; The Backstop Commitment.
|
18
|
|
Section 2.3
|
Equity Commitment Party Default.
|
19
|
|
Section 2.4
|
Subscription Escrow Account Funding.
|
20
|
|
Section 2.5
|
Closing.
|
21
|
|
Section 2.6
|
Transfer of Backstop Commitments.
|
21
|
|
Section 2.7
|
Designation Rights.
|
23
|
|
Section 2.8
|
[Reserved.]
|
24
|
|
Section 2.9
|
Notification of Aggregate Number of Exercised Subscription Rights.
|
24
|
|
ARTICLE III BACKSTOP COMMITMENT PREMIUM AND EXPENSE REIMBURSEMENT
|
24
|
|
|
Section 3.1
|
Premium Payable by the Debtors.
|
24
|
|
Section 3.2
|
Payment of Premium.
|
24
|
|
Section 3.3
|
Expense Reimbursement.
|
25
|
|
Section 3.4
|
Tax Treatment.
|
26
|
|
Section 3.5
|
Integration; Administrative Expense.
|
26
|
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE DEBTORS
|
26
|
|
|
Section 4.1
|
Organization and Qualification.
|
26
|
|
Section 4.2
|
Corporate Power and Authority.
|
27
|
|
Section 4.3
|
Execution and Delivery; Enforceability.
|
27
|
|
Section 4.4
|
Authorized and Issued Capital Shares.
|
28
|
|
Section 4.5
|
Issuance.
|
28
|
|
Section 4.6
|
Reserve Regulations.
|
28
|
|
Section 4.7
|
No Conflict.
|
29
|
|
Section 4.8
|
Consents and Approvals.
|
29
|
|
Section 4.9
|
Arm’s-Length.
|
30
|
|
Section 4.10
|
Financial Statements.
|
30
|
|
Section 4.11
|
Company SEC Documents and Disclosure Statements.
|
30
|
|
Section 4.12
|
Absence of Certain Changes.
|
30 |
|
Section 4.13
|
No Violation; Compliance with Laws.
|
30
|
|
Section 4.14
|
Legal Proceedings.
|
31
|
|
Section 4.15
|
Labor Relations.
|
31
|
|
Section 4.16
|
Intellectual Property.
|
31
|
|
Section 4.17
|
Title to Real and Personal Property.
|
31 |
|
Section 4.18
|
No Undisclosed Relationships.
|
32
|
i
TABLE OF CONTENTS
| Page | ||
|
Section 4.19
|
Licenses and Permits.
|
32
|
|
Section 4.20
|
Environmental.
|
32
|
|
Section 4.21
|
Tax Matters.
|
32 |
|
Section 4.22
|
Employee Benefit Plans.
|
33 |
|
Section 4.23
|
Internal Control Over Financial Reporting.
|
34
|
|
Section 4.24
|
Disclosure Controls and Procedures.
|
34
|
|
Section 4.25
|
Material Contracts.
|
34 |
|
Section 4.26
|
No Unlawful Payments.
|
35
|
|
Section 4.27
|
Compliance with Money Laundering Laws.
|
35
|
|
Section 4.28
|
Compliance with Sanctions Laws.
|
35
|
|
Section 4.29
|
No Broker’s Fees.
|
35
|
|
Section 4.30
|
Takeover Statutes.
|
36
|
|
Section 4.31
|
Investment Company Act.
|
36
|
|
Section 4.32
|
Insurance.
|
36
|
|
Section 4.33
|
No Undisclosed Material Liabilities.
|
36
|
|
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE EQUITY COMMITMENT PARTIES
|
37
|
|
|
Section 5.1
|
Incorporation.
|
37
|
|
Section 5.2
|
Corporate Power and Authority.
|
37
|
|
Section 5.3
|
Execution and Delivery.
|
37
|
|
Section 5.4
|
No Registration.
|
37
|
|
Section 5.5
|
Purchasing Intent.
|
37
|
|
Section 5.6
|
Sophistication; Evaluation.
|
38
|
|
Section 5.7
|
[Reserved.]
|
38
|
|
Section 5.8
|
[Reserved.]
|
38
|
|
Section 5.9
|
No Conflict.
|
38
|
|
Section 5.10
|
Consents and Approvals.
|
38
|
|
Section 5.11
|
Legal Proceedings.
|
39
|
|
Section 5.12
|
Sufficiency of Funds.
|
39
|
|
Section 5.13
|
No Broker’s Fees.
|
39
|
|
ARTICLE VI ADDITIONAL COVENANTS
|
39
|
|
|
Section 6.1
|
Approval Orders.
|
39
|
|
Section 6.2
|
Definitive Documents.
|
39
|
|
Section 6.3
|
Conduct of Business.
|
39 |
|
Section 6.4
|
Access to Information; Cleansing.
|
40
|
|
Section 6.5
|
Commitments of the Debtors and Equity Commitment Parties.
|
40
|
|
Section 6.6
|
Additional Commitments of the Debtors and the Equity Commitment Parties.
|
42 |
|
Section 6.7
|
Cooperation and Support.(a)
|
43
|
|
Section 6.8
|
[Reserved.]
|
43 |
|
Section 6.9
|
Blue Sky.
|
44
|
|
Section 6.10
|
No Integration; No General Solicitation.
|
44
|
|
Section 6.11
|
[Reserved.]
|
44
|
ii
TABLE OF CONTENTS
| Page |
||
|
Section 6.12
|
Use of Proceeds.
|
44
|
|
Section 6.13
|
Share Legend.
|
44
|
|
Section 6.14
|
Antitrust Approval.
|
45
|
|
Section 6.15
|
Equity Rights Offering.
|
47
|
|
ARTICLE VII ADDITIONAL PROVISIONS REGARDING FIDUCIARY OBLIGATIONS
|
47
|
|
|
Section 7.1
|
Fiduciary Out.
|
47
|
|
Section 7.2
|
Alternative Transactions.
|
47 |
|
ARTICLE VIII CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
|
48
|
|
|
Section 8.1
|
Conditions to the Obligations of the Equity Commitment Parties.
|
48
|
|
Section 8.2
|
Certificate of Incorporation.
|
50 |
|
Section 8.3
|
Waiver of Conditions to Obligations of Equity Commitment Parties.
|
50 |
|
Section 8.4
|
Conditions to the Obligations of the Debtors.
|
50 |
|
ARTICLE IX INDEMNIFICATION AND CONTRIBUTION
|
52
|
|
|
Section 9.1
|
Indemnification Obligations.
|
52
|
|
Section 9.2
|
Indemnification Procedure.
|
53
|
|
Section 9.3
|
Settlement of Indemnified Claims.
|
53 |
|
Section 9.4
|
Contribution.
|
54
|
|
Section 9.5
|
Treatment of Indemnification Payments.
|
54 |
|
Section 9.6
|
No Survival.
|
54 |
|
ARTICLE X TERMINATION
|
55
|
|
|
Section 10.1
|
Consensual Termination.
|
55
|
|
Section 10.2
|
[Reserved].
|
55
|
|
Section 10.3
|
Termination by the Debtors.
|
55
|
|
Section 10.4
|
Termination by the Required Equity Commitment Parties.
|
56
|
|
Section 10.5
|
Termination by the 2016 Lender Equity Commitment Parties; Termination by Equity Commitment Parties.
|
57 |
|
Section 10.6
|
Effect of Termination.
|
58 |
|
ARTICLE XI GENERAL PROVISIONS
|
60
|
|
|
Section 11.1
|
Notices.
|
60 |
|
Section 11.2
|
Assignment; Third-Party Beneficiaries.
|
62 |
|
Section 11.3
|
Prior Negotiations; Entire Agreement.
|
62 |
|
Section 11.4
|
Governing Law; Venue.
|
62 |
|
Section 11.5
|
Waiver of Jury Trial.
|
63
|
|
Section 11.6
|
Counterparts.
|
63
|
|
Section 11.7
|
Waivers and Amendments; Rights Cumulative; Consent.
|
63
|
|
Section 11.8
|
Headings.
|
64 |
iii
TABLE OF CONTENTS
| Page |
||
|
Section 11.9
|
Specific Performance.
|
64 |
|
Section 11.10
|
Damages.
|
64 |
|
Section 11.11
|
No Reliance.
|
65 |
|
Section 11.12
|
Settlement Discussions.
|
65 |
|
Section 11.13
|
No Recourse.
|
65 |
|
Section 11.14
|
Severability.
|
66 |
|
Section 11.15
|
Enforceability of Agreement.
|
66 |
iv
SCHEDULES
|
Schedule 1
|
Debtors
|
|
Schedule 2.1
|
Backstop Commitment Percentages and Direct Allocation Percentages of the
BrandCo Lender Equity Commitment Parties
|
|
Schedule 2.2
|
Backstop Commitment Percentages and Direct Allocation Percentages of the
2016 Lender Equity Commitment Parties
|
EXHIBITS
|
Exhibit A
|
Form of Joinder Agreement for Related Purchaser
|
|
Exhibit B-1
|
Form of Joinder Agreement for Existing Commitment Party Purchaser
|
|
Exhibit B-2
|
Form of Amendment for Existing Commitment Party Purchaser
|
|
Exhibit C
|
Form of Joinder Agreement for New Purchaser
|
v
THE AMENDED AND RESTATED BACKSTOP COMMITMENT AGREEMENT1
THIS AMENDED AND RESTATED BACKSTOP COMMITMENT AGREEMENT (this “Agreement”), dated as of February 21, 2023, is made by and among (i) Revlon, Inc.
(including as debtor in possession and as reorganized pursuant to the First Amended Plan, as applicable, “Holdings”), Revlon Consumer Products Corporation (“RCPC”),
and their directly- and indirectly-owned subsidiaries listed on Schedule 1 (each, a “Debtor” and, collectively with Holdings and RCPC, the “Debtors”),
on the one hand, and (ii) each of the Equity Commitment Parties, on the other hand. Each Debtor and each Equity Commitment Party is referred to herein, individually, as a “Party” and, collectively, as the
“Parties.”
RECITALS
WHEREAS, on June 15, 2022, (the “Petition Date”), each of the Debtors filed voluntary petitions for relief under chapter 11 of title 11 of the United
States Code, 11 U.S.C. §§ 101-1532 (as amended from time to time, the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy
Court”), initiating their respective cases (collectively, the “Chapter 11 Cases”), which are jointly administered and pending before the Bankruptcy Court;
WHEREAS, certain of the Parties entered into the Restructuring Support Agreement, dated as of December 19, 2022, by and among (i) the Debtors, (ii) the Consenting BrandCo Lenders, and (iii) the
Creditors’ Committee, which provided for the restructuring of the Debtors’ capital structure and financial obligations pursuant to the terms set forth therein;
WHEREAS, the Parties entered into or have delivered joinders to the Amended and Restated Restructuring Support Agreement, dated as of February 21,
2023, by and among (i) the Debtors, (ii) the Consenting BrandCo Lenders, (iii) the Consenting 2016 Lenders, and (iv) the Creditors’ Committee (such agreement, along with all exhibits thereto, including the First Amended Plan, as may be amended,
restated, supplemented or otherwise modified from time to time, the “RSA”);
WHEREAS, in connection with the Chapter 11 Cases, the Debtors have engaged in good faith, arm’s-length negotiations with certain parties in interest regarding the terms of the First Amended Plan;
WHEREAS, certain of the Parties entered into that certain Backstop Commitment Agreement, dated as of January 17, 2023, by and among (i) the Debtors and (ii) certain of the Consenting BrandCo Lenders
(including all exhibits, annexes, and schedules thereto) (the “Original Backstop Commitment Agreement”);
WHEREAS, subject to entry of the Backstop Order, pursuant to the First Amended Plan and this Agreement, Holdings will conduct a rights offering in accordance with the Equity Rights Offering Procedures,
whereby it shall (x) distribute Subscription Rights to purchase the Subscription Shares and (y) offer for purchase to the Equity Commitment Parties the Direct Allocation Shares, for an aggregate purchase price of $670 million (the “Aggregate Rights Offering Amount”) (or, if applicable, the Adjusted Aggregate Rights Offering Amount, which amount shall represent a reduction of the Aggregate Rights Offering Amount on account of Excess
Liquidity in accordance with the First Lien Exit Facilities Term Sheet), at a purchase price per Rights Offering Share calculated at a 30% discount to Plan Equity Value (the “Purchase Price”) (the
foregoing collectively, the “Equity Rights Offering”);
1 Capitalized terms used but not defined herein have the meanings ascribed to them in the First Amended Plan.
WHEREAS, subject to the terms and conditions contained in this Agreement, each Equity Commitment Party has agreed (on a several and not joint basis) to fully exercise (x) all Subscription Rights and (y) Direct Allocation Rights issued to it;
WHEREAS, subject to the terms and conditions contained in this Agreement, Holdings has agreed to sell to each Equity Commitment Party, and each Equity Commitment Party has agreed to purchase (on a
several and not joint basis), its Backstop Commitment Percentage of the Unsubscribed Shares, if any;
WHEREAS, as consideration for their respective Funding Commitments, the Debtors have agreed, subject to the terms, conditions and limitations set forth herein, to pay the Equity Commitment Parties the
Backstop Commitment Premium (or in the alternative, the Backstop Commitment Termination Premium (if applicable)) and the Expense Reimbursement, and provide the indemnification on the terms set forth herein;
WHEREAS, Section 6.2 and Section 11.7 of the Original Backstop Commitment Agreement provide that the Original Backstop Commitment Agreement may be amended, restated, modified, or changed in accordance
with its terms and subject to the consent rights set forth therein; and
WHEREAS, pursuant to Section 6.2 and Section 11.7 of the Original Backstop Commitment Agreement, the Parties desire to amend, restate and replace in its entirety the Original Backstop Commitment
Agreement with this Agreement, effective as of the date of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, agreements, representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, each of the Parties hereby agrees as follows:
Section 1.1 Definitions. Except
as otherwise expressly provided in this Agreement, whenever used in this Agreement (including any Exhibits and Schedules hereto), the following terms shall have the respective meanings specified therefor below:
“2016 Lender Equity Commitment Party” means each Equity Commitment Party under this Agreement identified on Schedule 2.2.
2
“2016 Term Loan Lender Group Advisors” has the meaning set forth in the First Amended Plan.
“2020 Term B-1 Loan Claim” has the meaning set forth in the First Amended Plan.
“2020 Term B-2 Loan Claim” has the meaning set forth in the First Amended Plan.
“Ad Hoc Group of 2016 Term Loan Lenders” has the meaning set forth in the First Amended Plan.
“Ad Hoc Group of BrandCo Lenders” has the meaning set forth in the First Amended Plan.
“Adjusted Aggregate Rights Offering Amount” has the meaning set forth in the First Amended Plan.
“Administrative Claim” has the meaning set forth in the First Amended Plan.
“Adversary Proceeding” means the adversary proceeding captioned AIMCO CLO 10 LTD, et al. v. Revlon, Incl., et al.,
Adv. Pro. No. 22-01167 (DSJ) (Bankr. S.D.N.Y. Oct. 31, 2022).
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such
Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made (including any Related Funds of such Person); provided that for purposes of this
Agreement, no Equity Commitment Party shall be deemed an Affiliate of the Debtors or any of their Subsidiaries. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “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 securities, by Contract
or otherwise.
“Aggregate Rights Offering Amount” has the meaning set forth in the Recitals.
“Agreement” has the meaning set forth in the Preamble.
“Allowed” has the meaning set forth in the First Amended Plan.
“Alternative Restructuring Counterproposal Notice” has the meaning set forth in Section 7.1.
3
“Alternative Restructuring Proposal” has the meaning set forth in the First Amended Plan.
“Anti-Corruption Law” means the United States Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any applicable law or
regulation implementing the OECD Convention on Combatting Bribery of Foreign Public Officials.
“Antitrust Approvals” means any notification, authorization, approval, consent, filing, application, nonobjection, expiration or termination of applicable
waiting period (including any extension thereof), exemption, determination of lack of jurisdiction, waiver, variance, filing, permission, qualification, registration or notification required or, if agreed between the Debtors and the Required Equity
Commitment Parties (in each case, acting reasonably) advisable, under any Antitrust Laws.
“Antitrust Authorities” means the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the attorneys
general of the several states of the United States and any other Governmental Authority having jurisdiction pursuant to the Antitrust Laws, and “Antitrust Authority” means any one of them.
“Antitrust Laws” mean the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, each, as amended, and any other Law governing
agreements in restraint of trade, monopolization, pre-merger notification, the lessening of competition through merger or acquisition or anti-competitive conduct, and any foreign investment Laws.
“Applicable Consent” has the meaning set forth in Section 4.8.
“Available Shares” means, collectively, the (x) Unsubscribed Shares and (y) Direct Allocation Shares that any Equity Commitment Party
fails to purchase in accordance with the terms of this Agreement.
“Backstop Amount” has the meaning set forth in Section 2.4(a)(v).
“Backstop Commitment” has the meaning set forth in Section 2.2(b).
“Backstop Commitment Percentage” means, with respect to any Equity Commitment Party, such Equity Commitment Party’s percentage of the
Backstop Commitment as set forth opposite such Equity Commitment Party’s name under the column titled “Backstop Commitment Percentage” on Schedule 2.1 or Schedule 2.2 (as such schedule may
be amended, supplemented or otherwise modified from time to time in accordance with this Agreement), as applicable. Any reference to “Backstop Commitment Percentage” in this Agreement means the Backstop Commitment Percentage in effect at the time of
the relevant determination.
“Backstop Commitment Premium Share Amount” means, with respect to an Equity Commitment Party, the number of shares of
New Common Stock equal to the product of (i) such Equity Commitment Party’s Backstop Commitment Percentage and (ii) the number of shares of New Common Stock issued on account of the Backstop Commitment Premium pursuant to Section 3.2 hereof.
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“Backstop Commitment Termination Premium” means a nonrefundable aggregate premium in an amount equal to 100% of the dollar value of the Backstop
Commitment Premium.
“Backstop Order” means the order entered by the Bankruptcy Court approving and authorizing the Debtors’ entry into this Agreement and the other Equity
Rights Offering Documents, including the Debtors’ obligation to pay the Backstop Commitment Premium, or in the alternative, the Backstop Commitment Termination Premium, which shall be in form and substance acceptable to the Debtors and the Required
Equity Commitment Parties.
“Bankruptcy Code” has the meaning set forth in the Recitals.
“Bankruptcy Court” has the meaning set forth in the Recitals.
“Bankruptcy Rules” has the meaning set forth in the First Amended Plan.
“BrandCo Lender Equity Commitment Party” means each Equity Commitment Party under this Agreement identified on Schedule 2.1.
“Breach Notice” has the meaning set forth in the First Amended Plan.
“Business Day” has the meaning set forth in the First Amended Plan.
“Bylaws” means the amended and restated bylaws of Holdings as of the Closing Date, which shall be consistent with the terms set forth in the RSA and
otherwise be in form and substance satisfactory to the Required Equity Commitment Parties.
“Canadian Defined Benefit Pension Plan” means a Canadian Pension Plan which contains a “defined benefit provision,” as defined in subsection 147.1(1) of
the Income Tax Act (Canada).
“Canadian Pension Plans” means (i) a “registered pension plan,” as that term is defined in subsection 248(1) of the Income Tax Act (Canada), or (ii) a
pension plan under other Canadian applicable law, in each case which is or was sponsored, administered or contributed to, or required to be contributed to by, any Debtor or under which any Debtor has any actual or potential liability.
“Cash” has the meaning set forth in the First Amended Plan.
“Certificate of Incorporation” means the amended and restated certificate of incorporation of Holdings as of the Closing Date, which shall be consistent
with the terms set forth in the RSA and otherwise be in form and substance satisfactory to the Required Equity Commitment Parties.
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“Chapter 11 Cases” has the meaning set forth in the Recitals.
“Claim” has the meaning set forth in the First Amended Plan.
“Closing” has the meaning set forth in Section 2.5(a).
“Closing Date” has the meaning set forth in Section 2.5(a).
“Company Disclosure Schedules” means the disclosure schedules delivered by the Debtors to the Equity Commitment Parties on the date of this Agreement.
“Company Plan” means any employee benefit plan, as defined in Section 3(3) of ERISA and in respect of which any Debtor or any ERISA Affiliate is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA or has any liability, including a Multiemployer Plan.
“Company SEC Documents” has the meaning set forth in Section 4.11.
“Complete Business Day” means on any Business Day, the time from 12:00 a.m. to 11:59 p.m. (inclusive) on such Business Day.
“Confirmation Order” has the meaning set forth in the First Amended Plan, which shall also be in form and substance acceptable to the Required Equity
Commitment Parties and the Debtors.
“Consenting 2016 Lenders” has the meaning set forth in the RSA.
“Consenting 2016 Lender Significant Terms” means, collectively, (i) the
definition of “Required Consenting 2016 Lenders”, (ii) the aggregate Backstop Commitment Percentage and Direct Allocation Percentage of the 2016 Lender Commitment Parties and (iii) the terms of Section
3.1, Section 10.6 and Section 11.7.
“Consenting BrandCo Lenders” has the meaning set forth in the RSA.
“Consummation” has the meaning set forth in the First Amended Plan.
“Contract” means any legally binding agreement, contract or instrument, including any loan, note, bond, mortgage, indenture, guarantee, deed of trust,
license, franchise, commitment, lease, franchise agreement, letter of intent, memorandum of understanding or other obligation, and any amendments thereto, whether written or oral, but excluding the First Amended Plan.
“Contracted Related Parties” means any Related Party that is a party to this Agreement or the RSA.
“Creditors’ Committee” has the meaning set forth in the First Amended Plan.
“Debtor” has the meaning set forth in the Preamble.
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“Defaulting Equity Commitment Party” means in respect of an Equity Commitment Party Default that is continuing, the applicable defaulting Equity
Commitment Party.
“Defined Period” means a period beginning on January 1, 2018.
“Definitive Documents” has the meaning set forth in the First Amended Plan.
“DIP Credit Agreement” means any of the Term DIP Facility Credit Agreement and the ABL DIP Facility Credit Agreement, as applicable.
“Direct Allocation Amount” has the meaning set forth in Section 2.4(a)(iii).
“Direct Allocation Commitment” has the meaning set forth in Section 2.2(c).
“Direct Allocation Percentages” means, with respect to any Equity Commitment Party, such Equity Commitment Party’s percentage of the Direct Allocation
Commitment as set forth opposite such Equity Commitment Party’s name under the column titled “Direct Allocation Percentage” on Schedule 2.1 or Schedule 2.2 (as such schedule may be amended,
supplemented or otherwise modified from time to time in accordance with this Agreement), as applicable. Any reference to “Direct Allocation Percentage” in this Agreement means the Direct Allocation Percentage in effect at the time of the relevant
determination.
“Direct Allocation Right” has the meaning set forth in Section 2.1.
“Direct Allocation Shares” means the New Common Stock issued in connection with the Direct Allocation Right.
“Disclosure Statement” has the meaning set forth in the First Amended Plan, which shall also be in form and substance reasonably acceptable to the
Required Equity Commitment Parties and the Debtors.
“Disclosure Statement Order” has the meaning set forth in the First Amended Plan, which shall also be in form and substance acceptable to the Required
Equity Commitment Parties and the Debtors.
“Effective Date” has the meaning set forth in the First Amended Plan.
“Entity” has the meaning set forth in the First Amended Plan.
“Environmental Laws” means all applicable laws (including common law), rules, regulations, codes, ordinances, orders in council, Orders, decrees,
treaties, directives, judgments or legally binding agreements promulgated or entered into by or with any Governmental Unit, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management,
transportation, storage, use, Release or threatened Release of, or exposure to, any Hazardous Material or to health and safety matters.
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“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise, resulting from or based upon (a)
any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials or
(d) the Release or threatened Release of any Hazardous Materials.
“Equity Commitment Party” means each Entity that holds a Funding Commitment pursuant to this Agreement, including without limitation, any holder of a
Funding Commitment that is a Related Purchaser, Existing Commitment Party Purchaser or a New Purchaser that has joined this Agreement pursuant to a joinder or amendment entered into pursuant to Section 2.6(b), Section 2.6(c), or Section
2.6(d), respectively.
“Equity Commitment Party Default” means a breach of this Agreement arising if any Equity Commitment Party (x) fails to (i) fully exercise its Subscription
Rights and Direct Allocation Right pursuant to and in accordance with Section 2.2(a), Section 2.2(c) and Section 2.4 of this Agreement and to pay the applicable aggregate Purchase Price for such Subscription Shares
and Direct Allocation Shares and/or (ii) deliver and pay the applicable aggregate Purchase Price for such Equity Commitment Party’s Backstop Commitment Percentage of any Unsubscribed Shares by the Subscription Escrow Funding Date in accordance with Section
2.4, and/or (y) denies or disaffirms such Equity Commitment Party’s obligations pursuant to this Agreement.
“Equity Commitment Party Replacement” has the meaning set forth in Section 2.3(a).
“Equity Commitment Party Replacement Period” has the meaning set forth in Section 2.3(a).
“Equity Rights Offering” has the meaning set forth in the Recitals.
“Equity Rights Offering Documents” has the meaning set forth in the First Amended Plan, which, in each case, shall also be in form and substance
acceptable to the Required Equity Commitment Parties.
“Equity Rights Offering Expiration Time” means the time and the date on which the applicable rights
offering subscription form must be duly delivered to the Equity Rights Offering Subscription Agent in accordance with the Equity Rights Offering Procedures.
“Equity Rights Offering Participants” means those Persons who duly subscribe for Subscription Shares in accordance with the Equity Rights Offering
Procedures.
“Equity Rights Offering Procedures” has the meaning set forth in the First Amended Plan, which shall also be in form and substance acceptable to the
Required Equity Commitment Parties and the Debtors, as may be amended or modified in a manner that is acceptable to the Debtors and the Required Equity Commitment Parties.
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“Equity Rights Offering Record Date” has the meaning set forth in the Equity Rights Offering
Procedures.
“Equity Rights Offering Subscription Agent” means Kroll Restructuring Administration LLC or another subscription agent appointed by the Debtors and
reasonably satisfactory to the Required Equity Commitment Parties.
“ERISA” has the meaning set forth in the First Amended Plan.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Debtors, is treated as a single employer under Section
414(b) or (c) of the IRC, or, solely for purposes of Section 302 of ERISA and Section 412 of the IRC, is treated as a single employer under Section 414 of the IRC.
“Event” means any event, development, occurrence, circumstance, effect, condition, result, state of facts or change.
“Excess Liquidity” has the meaning set forth in the First Amended Plan.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Commitment Party Purchaser” has the meaning set forth in Section 2.6(c).
“Exit Facilities” has the meaning set forth in the First Amended Plan.
“Exit Facilities Documents” has the meaning set forth in the First Amended Plan.
“Expense Reimbursement” has the meaning set forth in Section 3.3.
“Fiduciaries” has the meaning set forth in Section 7.1.
“Fiduciary Out Notice” has the meaning set forth in Section 7.1.
“Filing Party” has the meaning set forth in Section 6.14(a).
“Final DIP Order” means the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Financing and (B) Use
Cash Collateral, (II) Granting Liens and Providing Superpriority Administrative Expense Status, (III) Granting Adequate Protection to the Prepetition Secured Parties, (IV) Modifying the Automatic Stay, and (V) Granting Related Relief entered
by the Bankruptcy Court on August 2, 2022 [Docket No. 330].
“Final Order” has the meaning set forth in the First Amended Plan.
“Final Outside Date” means June 17, 2023.
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“First Amended Plan” means the First Amended Plan that was filed by the Debtors with the Bankruptcy Court on February 21, 2023 [Docket No. 1499] (without
reference to any modifications, amendments, or supplements to such Plan).
“First Lien Exit Facilities Term Sheet” has the meaning set forth in the First Amended Plan.
“Funding Amount” has the meaning set forth in Section 2.4(a)(v).
“Funding Commitment” has the meaning set forth in Section 2.2(c).
“Funding Notice” has the meaning set forth in Section 2.4(a).
“GAAP” has the meaning set forth in Section 4.10.
“Governmental Authority” means any transnational, domestic or foreign federal, state, provincial or local, governmental authority, quasi-governmental,
regulatory or administrative agency, self-regulatory authority, department, court, commission, board, bureau, agency or official, including any political subdivision thereof.
“Governmental Unit” has the meaning set forth in the First Amended Plan.
“Hazardous Materials” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, exposure to which or release of which
can pose a hazard to human health or the environment or are listed, regulated or defined as hazardous, toxic, pollutants or contaminants under any Environmental Laws, including materials defined as “hazardous substances” under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., and any radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, per- and polyfluoroalkyl substances,
polychlorinated biphenyls or radon gas.
“Holder” has the meaning set forth in the First Amended Plan.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Indemnified Claim” has the meaning set forth in Section 9.2.
“Indemnified Person” has the meaning set forth in Section 9.1.
“Indemnifying Party” has the meaning set forth in Section 9.1.
“Initial Equity Commitment Parties” means each Equity Commitment Party that was a party to the Original Backstop Commitment Agreement as of the date of
execution thereof.
“Initial Equity Commitment Parties Advisors” means (i) Davis Polk & Wardwell LLP and Centerview Partners LLC in their
capacities as legal and financial advisors, respectively, to the Ad Hoc Group of BrandCo Lenders, certain members of which are Initial Equity Commitment Parties, and (ii) any other professionals retained by the Ad Hoc Group of BrandCo Lenders in
connection with the Equity Rights Offering.
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“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under
United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, domain names, trade secrets, patents, patent licenses, trademarks, trademark licenses, trade names, technology, know-how and processes, and all rights
to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intended Tax Treatment” has the meaning set forth in Section 3.4.
“IRC” has the meaning set forth in the First Amended Plan.
“Joint Filing Party” has the meaning set forth in Section 6.14(b).
“Knowledge” means the actual knowledge, after reasonable inquiry of their direct reports, of the chief executive officer, interim chief financial officer,
chief operating officer and general counsel of such Person. As used herein, “actual knowledge” means information that is personally known by the listed individual(s).
“Law” means any law (statutory or common), statute, regulation, rule, code or ordinance enacted, adopted, issued or promulgated by any Governmental Unit.
“Legal Proceedings” has the meaning set forth in Section 4.14.
“Legend” has the meaning set forth in Section 6.13.
“Lien” has the meaning set forth in the First Amended Plan.
“Losses” has the meaning set forth in Section 9.1.
“Management Incentive Plan” has the meaning set forth in the First Amended Plan.
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“Material Adverse Effect” means any Event after September 30, 2022 which individually, or together with all other Events, has
had or would reasonably be expected to have a material and adverse effect on (a) the business, assets, liabilities, finances, properties, results of operations or condition (financial or otherwise) of the Debtors, taken as a whole, or (b) the ability
of the Debtors, taken as a whole, to perform their respective obligations under, or to consummate the transactions contemplated by, this Agreement, the RSA, or the other Definitive Documents, including the Equity Rights Offering, in each case, except
to the extent such Event results from, arises out of, or is attributable to, the following (either alone or in combination): (i) any change after the date hereof in global, national or regional political conditions (including acts of war, terrorism or
natural disasters) or in the general business, market, financial or economic conditions affecting the industries, regions and markets in which the Debtors operate; (ii) any changes after the date hereof in applicable Law or GAAP, or in the
interpretation or enforcement thereof; (iii) the execution, announcement or performance of this Agreement, the RSA, or the other Definitive Documents or the transactions contemplated hereby or thereby, including, without limitation, the Restructuring
Transactions; (iv) changes in the market price or trading volume of the claims or equity or debt securities of the Debtors (but not the underlying facts giving rise to such changes unless such facts are otherwise excluded pursuant to the clauses
contained in this definition); (v) the filing or pendency of the Chapter 11 Cases; (vi) acts of God, including any natural (including weather-related) or man-made event or disaster, epidemic, pandemic or disease outbreak (including the COVID-19 virus
or any strain, mutation or variation thereof); (vii) any action taken at the express written request of the Equity Commitment Parties or taken by the Equity Commitment Parties, including any breach of this Agreement by the Equity Commitment Parties; or
(viii) any failure by the Debtors to meet any internal or published projection for any period (but not the underlying facts giving rise to such failure unless such facts are otherwise excluded pursuant to other clauses contained in this definition); or
(ix) any objections in the Bankruptcy Court to (A) this Agreement, the other Definitive Documents or the transactions contemplated hereby or thereby or (B) the reorganization of the Debtors, the First Amended Plan or the Disclosure Statement; provided that the exceptions set forth in clauses (i), (ii) and (vi) of this definition shall apply to the extent that such Event is disproportionately adverse to the Debtors, taken as a
whole, as compared to other companies comparable in size and scale to the Debtors operating in the industries in which the Debtors operate, but in each case, solely to the extent of such disproportionate impact.
“Material Contracts” means (a) all “plans of acquisition, reorganization, arrangement, liquidation or succession” and “material contracts” (as such terms
are defined in Items 601(b)(2) and 601(b)(10) of Regulation S-K under the Exchange Act or required to be discussed on a current report on Form 8-K) to which any Debtor is a party and (b) any Contracts to which any Debtor is a party that is likely to
reasonably involve consideration of more than $20 million, in the aggregate, over a 12 month period.
“MIP Award” has the meaning set forth in the First Amended Plan.
“MNPI” means material nonpublic information.
“Money Laundering Laws” has the meaning set forth in Section 4.27.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Debtors are making or accruing an obligation to
make contributions, have within any of the preceding six plan years made or accrued an obligation to make contributions, or otherwise have any actual or contingent liability or obligation, including on account of an ERISA Affiliate.
“New Common Stock” has the meaning set forth in the First Amended Plan.
“New Organizational Documents” has the meaning set forth in the First Amended Plan, which, in each case, shall also be in form and substance acceptable to
the Required Equity Commitment Parties.
“New Purchaser” has the meaning set forth in Section 2.6(d).
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“New Warrants” has the meaning set forth in the First Amended Plan.
“OpCo Term Loan Claim” has the meaning set forth in the First Amended Plan.
“Order” means any judgment, order, award, injunction, writ, permit, license or decree of any Governmental Unit or arbitrator of applicable jurisdiction.
“Original Backstop Commitment Agreement” has the meaning set forth in the Recitals.
“Outside Date” has the meaning set forth in Section 10.4(e).
“Party” has the meaning set forth in the Preamble.
“Paul, Weiss” means Paul, Weiss, Rifkind, Wharton & Garrison LLP.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Permitted Liens” means (a) Liens for Taxes that (i) are not yet due and payable or (ii) are being contested in good faith by appropriate proceedings and
for which adequate reserves have been made with respect thereto; (b) mechanics’ Liens and similar Liens for labor, materials or supplies provided with respect to any Real Property or personal property incurred in the ordinary course of business
consistent with past practice and do not materially detract from the value of, or materially impair the use of, any of the Real Property or personal property of the Debtors; (c) zoning, building codes and other land use Laws regulating the use or
occupancy of any Real Property or the activities conducted thereon that are imposed by any Governmental Unit having jurisdiction over such Real Property; provided that no such zoning, building codes and other
land use Laws prohibit the use or occupancy of such Real Property; (d) easements, covenants, conditions, restrictions and other similar matters adversely affecting title to any Real Property and other title defects that do not or would not materially
impair the use or occupancy of such Real Property or the operation of the Debtors’ business; (e) any interest or title of a lessor under any leases or subleases entered into by any of the Debtors in the ordinary course of business and any financing
statement filed in connection with any such lease; (f) from and after the occurrence of the Effective Date, Liens granted in connection with the Exit Facilities; (g) Liens listed in the Company Disclosure Schedules; and (h) Liens listed on Schedule
7.3(f) to the DIP Credit Agreements; and (i) Liens that, pursuant to the Confirmation Order, will not survive beyond the Effective Date.
“Person” means a person as such term is defined in Section 101(41) of the Bankruptcy Code.
“Petition Date” means June 15, 2022.
“Plan” has the meaning set forth in the First Amended Plan, which shall be consistent with the terms set forth in the RSA, and which shall also be in form
and substance acceptable to the Debtors and the Required Equity Commitment Parties.
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“Pre-Closing Period” has the meaning set forth in Section 6.3.
“Purchase Price” has the meaning set forth in the Recitals.
“Real Property” means, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned in fee simple or
leased by the Debtors, together with all easements, hereditaments and appurtenances relating thereto, and all improvements and appurtenant fixtures incidental to the ownership or lease thereof.
“Registration Rights Agreement” has the meaning set forth in Section 8.1(e).
“Related Fund” means, with respect to an Equity Commitment Party, any Affiliates (including at the institutional level) of such Equity Commitment Party or
any fund, account (including any separately managed accounts) or investment vehicle that is controlled, managed, advised or sub-advised by such Equity Commitment Party, an Affiliate of such Equity Commitment Party or by the same investment manager,
advisor or subadvisor as such Equity Commitment Party or an Affiliate of such Equity Commitment Party.
“Related Party” means, with respect to any Person, (i) any former, current or future director, officer, agent, Representative, Affiliate, employee,
general or limited partner, member, controlling persons, manager or stockholder of such Person and (ii) any former, current or future director, officer, agent, Representative, Affiliate, employee, general or limited partner, member, controlling
persons, manager or stockholder of any of the foregoing, in each case solely in their respective capacity as such.
“Related Purchaser” has the meaning set forth in Section 2.6(b).
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, emanating or migrating in, into, onto or through the environment.
“Reorganized Debtors” has the meaning set forth in the First Amended Plan.
“Replacement Equity Commitment Parties” has the meaning set forth in Section 2.3(a).
“Reportable Event” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to
which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Company Plan (other than a Company Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the IRC).
“Representatives” means, with respect to any Person, such Person’s directors, officers, members, partners, managers, employees, agents, investment
bankers, attorneys, accountants, advisors and other representatives.
“Required Consenting 2016 Lenders” has the meaning set forth in the
RSA.
“Required Consenting BrandCo Lenders” has the meaning set forth in the RSA.
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“Required Equity Commitment Parties” means, as of the date of determination, the BrandCo Lender Equity Commitment Parties holding a majority of the
aggregate amount of Backstop Commitments of all BrandCo Lender Equity Commitment Parties (excluding any Defaulting Equity Commitment Parties and their corresponding Backstop Commitments).
“Restructuring Transactions” has the meaning set forth in the First Amended Plan.
“Rights Offering Shares” means, collectively, (x) the Subscription Shares (including all Unsubscribed Shares) issued by Holdings pursuant to and in
accordance with the Equity Rights Offering Procedures (and, in the case of the Unsubscribed Shares, this Agreement), and (y) the Direct Allocation Shares issued pursuant to this Agreement. For the avoidance of doubt, the product of (i) the number of
Rights Offering Shares multiplied by (ii) the Purchase Price shall equal the Aggregate Rights Offering Amount (or the Adjusted Aggregate Rights Offering Amount, if applicable).
“RSA” has the meaning set forth in the Recitals.
“Sanctioned Jurisdiction” has the meaning set forth in Section 4.28.
“Sanctions” has the meaning set forth in Section 4.28.
“SEC” has the meaning set forth in the First Amended Plan.
“Securities Act” has the meaning set forth in the First Amended Plan.
“Settled Litigation” has the meaning set forth in the First Amended Plan.
“Significant Terms” means, collectively, (i) the definitions of
“Adjusted Aggregate Rights Offering Amount”, “Aggregate Rights Offering Amount”, “Final Outside Date”, “Purchase Price”, “Required Equity Commitment Parties” and “Significant Terms” and (ii) the terms of Section 10.5 and Section 11.7.
“Single Employer Plan” means any Company Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the IRC
or Section 302 of ERISA and in respect of which any Debtor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA or has any liability.
“Specified Debtor RSA Termination Rights” has the meaning set forth in Section 10.6(b).
“Specified Lender RSA Termination Rights” has the meaning set forth in Section 10.6(b).
“Specified RSA Termination Rights” has the meaning set forth in Section 10.6(b).
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“Subscription Amount” has the meaning set forth in Section 2.4(a)(ii).
“Subscription Commitment” has the meaning set forth in Section 2.2(a).
“Subscription Escrow Account” has the meaning set forth in Section 2.4(a)(vi).
“Subscription Escrow Funding Date” has the meaning set forth in Section 2.4(b).
“Subscription Rights” means those certain rights to purchase the Subscription Shares at the applicable Purchase Price in accordance with the Equity Rights
Offering Procedures, which Holdings will issue to the Holders of OpCo Term Loan Claims and 2020 Term B-2 Loan Claims on account of such claims as set forth in the First Amended Plan.
“Subscription Shares” means the shares of New Common Stock (including all Unsubscribed Shares) issued by Holdings in connection with the Subscription
Rights pursuant to and in accordance with the Equity Rights Offering Procedures.
“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture or other legal entity as to which such Person (either alone or
through or together with any other subsidiary or Affiliate), (a) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests, (b) has the power to elect a majority of the board of directors or similar governing
body thereof or (c) has the power to direct, or otherwise control, the business and policies thereof.
“Subsidiary Interests” has the meaning set forth in Section 4.1.
“Supermajority Equity Commitment Parties” means, as of the date of determination, the Equity Commitment Parties holding at least two-thirds of the
aggregate amount of Backstop Commitments of all Equity Commitment Parties (excluding any Defaulting Equity Commitment Parties and their corresponding Backstop Commitments).
“Takeover Statute” means any restrictions contained in any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other
similar anti-takeover statute or regulation.
“Taxes” means all taxes, assessments, duties, levies or other similar mandatory governmental charges paid to a Governmental Unit in the nature of a tax,
including all federal, state, local, foreign and other income, franchise, profits, gross receipts, capital gains, capital stock, transfer, property, sales, use, value-added, occupation, excise, severance, windfall profits, stamp, payroll, social
security, withholding and other taxes, assessments, duties, levies or other similar mandatory governmental charges of any kind whatsoever paid to a Governmental Unit (whether payable directly or by withholding and whether or not requiring the filing of
a return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest thereon.
“Term DIP Facility Credit Agreement” has the meaning set forth in the First Amended Plan.
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“Total Outstanding Shares” means the total number of shares of Holdings’ New Common Stock outstanding immediately following the Closing, as provided in
the First Amended Plan, (including those issued as payment of the Backstop Commitment Premium) but excluding any shares of New Common Stock reserved to be issued pursuant to the Management Incentive Plan and any shares of New Common Stock issuable upon
the exercise of the New Warrants.
“Transfer” means sell, transfer, assign, pledge, hypothecate, participate, donate or otherwise encumber or dispose of, directly or indirectly (including
through derivatives, options, swaps, pledges, forward sales or other transactions in which any Person receives the right to own or acquire any current or future interest in) a Funding Commitment, a Subscription Right, an OpCo Term Loan Claim, 2020 Term
B-2 Loan Claim, New Warrants or New Common Stock or the act of any of the aforementioned actions.
“Unsubscribed Shares” means the Subscription Shares that have not been duly and timely subscribed for by the Equity Rights Offering Participants in
accordance with the Equity Rights Offering Procedures and the First Amended Plan.
“willful or intentional breach” has the meaning set forth in Section 10.3(d).
Section 1.2 Construction. In this Agreement, unless the
context otherwise requires:references to Articles, Sections, Exhibits and Schedules are references to the articles and sections or subsections of, and the exhibits and schedules attached to, this Agreement;
(b) references in this Agreement to “writing” or comparable expressions include a reference to a written document transmitted by means of electronic mail, in portable document format
(pdf), facsimile transmission or comparable means of communication;
(c) words expressed in the singular number shall include the plural and vice versa; words expressed in the masculine shall include the feminine and neuter gender and vice versa;
(d) the words “hereof,” “herein,” “hereto” and “hereunder,” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, including all Exhibits and Schedules attached to this
Agreement, and not to any provision of this Agreement;
(e) the term this “Agreement” shall be construed as a reference to this Agreement as the same may have been, or may from time to time be, amended, modified, varied, novated or supplemented;
(f) “include,” “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words;
(g) references to “day” or “days” are to calendar days;
(h) references to “the date hereof” means the date of this Agreement;
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(i) unless otherwise specified, references to a statute mean such statute as amended from time to time and include any successor legislation thereto and any rules or regulations promulgated thereunder in effect
from time to time; and
(j) references to “dollars” or “$” refer to the currency of the United States of America, unless otherwise expressly provided.
Section 2.1 The Equity Rights
Offering. On and subject to the terms and conditions hereof, including entry of the Backstop Order, the Debtors shall conduct the Equity Rights Offering pursuant to, and in accordance with, the Equity Rights Offering Procedures, this Agreement,
and the Plan. Thirty percent (30%) of the New Common Stock to be issued pursuant to the Equity Rights Offering shall be reserved for the Equity Commitment Parties pro rata based on
the Equity Commitment Parties’ Direct Allocation Percentages (the “Direct Allocation Right”).
Section 2.2 The
Subscription Commitment; The Backstop Commitment. (a) On and subject to the terms and conditions hereof, each Equity Commitment Party agrees, severally and not jointly, to fully
and timely exercise, in accordance with Section 2.4, and to cause its Related Funds to fully and timely exercise, in accordance with Section 2.4, all
Subscription Rights that are properly issued to it based on its OpCo Term Loan Claims or 2020 Term B-2 Loan Claims, as applicable, and to duly purchase, and to cause its Related Funds to duly purchase, on the Effective Date for the applicable aggregate
Purchase Price all Subscription Shares issuable to it in connection with such Subscription Rights (the “Subscription Commitment”).
(b) On and subject to the terms and conditions hereof, each Equity Commitment Party agrees, severally and not jointly, to purchase, and Holdings agrees to
sell to such Equity Commitment Party, on the Effective Date for the applicable aggregate Purchase Price, the number of Unsubscribed Shares equal to (i) such Equity Commitment Party’s Backstop Commitment Percentage multiplied by (ii) the aggregate
number of Unsubscribed Shares (rounded to the nearest whole share among the Equity Commitment Parties solely to avoid fractional shares of New Common Stock as the Required Equity Commitment Parties may determine in their sole discretion) (the “Backstop Commitment”).
(c) On and subject to the terms and conditions hereof, each Equity Commitment Party agrees, severally and not jointly, to purchase, and Holdings agrees to sell to such Equity
Commitment Party, on the Effective Date for the applicable aggregate Purchase Price, the number of Direct Allocation Shares equal to (i) such Equity Commitment Party’s Direct Allocation Percentage multiplied by (ii) the aggregate number of Direct
Allocation Shares (rounded to the nearest whole share among the Equity Commitment Parties solely to avoid fractional shares of New Common Stock as the Required Equity Commitment Parties may determine in their sole discretion) (the “Direct Allocation Commitment” and, together with the Subscription Commitment and the Backstop Commitment, the “Funding Commitment”).
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Section 2.3 Equity Commitment Party Default. (a) Within five (5) Business Days after receipt of written notice from the Debtors to all Equity Commitment Parties of an Equity Commitment Party Default, which notice shall be given promptly to all Equity Commitment
Parties substantially concurrently following the occurrence of such Equity Commitment Party Default (such five (5) Business Day period, which may be extended with the consent of the Required Equity Commitment Parties and the Debtors, the “Equity Commitment Party Replacement Period”), (x) if such Equity Commitment Party Default is by a 2016 Lender Equity Commitment Party, for two (2) Business Days, the
Required Consenting 2016 Lenders and their respective Related Funds (other than any Defaulting Equity Commitment Party) shall have the right, but not the obligation, to make arrangements for one or more of the 2016 Lender Equity Commitment Parties
(other than any Defaulting Equity Commitment Party) to purchase all or any portion of the Available Shares (such purchase, an “Equity Commitment Party Replacement”) on
the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by all of the 2016 Lender Equity Commitment Parties electing to purchase all or any portion of the Available Shares, or, if no such
agreement is reached, based upon the applicable Backstop Commitment Percentage of any such 2016 Lender Equity Commitment Parties and their respective Related Purchasers (other than any Defaulting Equity Commitment Party) and (y) if such Equity
Commitment Party Default is not by a 2016 Lender Equity Commitment Party (or if no arrangements are made under the foregoing clause (x) within two (2) Business Days), for the remaining Business Days of the Equity Commitment Party Replacement
Period, the Required Equity Commitment Parties and their respective Related Funds (other than any Defaulting Equity Commitment Party) shall have the right, but not the obligation, to make arrangements for one or more of the Equity Commitment
Parties (other than any Defaulting Equity Commitment Party) to purchase an Equity Commitment Party Replacement on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by all of the
Replacement Equity Commitment Parties electing to purchase all or any portion of the Available Shares, or, if no such agreement is reached, based upon the applicable Backstop Commitment Percentage of any such Equity Commitment Parties and their
respective Related Purchasers (other than any Defaulting Equity Commitment Party) (such replacement Equity Commitment Parties under this Section 2.3, the “Replacement Equity
Commitment Parties”). Any such Available Shares purchased by a Replacement Equity Commitment Party shall be included, among other things, in the determination of (x) the Unsubscribed Shares to be purchased by such Replacement Equity
Commitment Party for all purposes hereunder, (y) the Backstop Commitment Percentage of such Replacement Equity Commitment Party for all purposes hereunder and (z) the Backstop Commitment of such Replacement Equity Commitment Party for purposes of
the definition of the “Required Equity Commitment Parties.” If an Equity Commitment Party Default occurs, (i) the Outside Date shall be delayed and (ii) each Equity Commitment Party shall support an extension of the Milestones (as defined in the
RSA), in each case only to the extent necessary to allow for the Equity Commitment Party Replacement to be completed within the Equity Commitment Party Replacement Period.
(b) In the event that this Agreement is terminated as to one or more 2016 Lender Equity Commitment Parties pursuant to Section
10.5(a), subject to the terms of this Section 2.3, within five (5) Business Days after written notice of such termination is provided pursuant to Section 10.5(a) (which five (5) Business Day period may be extended with the consent of the Required Equity Commitment Parties and the Debtors), the Required Equity Commitment Parties shall have the right but not
the obligation, to make arrangements for one or more of the Equity Commitment Parties to purchase all or any portion of the Available Shares resulting from such termination; provided that, solely to the extent such termination results from a
termination of the RSA as to such 2016 Lender Equity Commitment Parties pursuant to Section 13.02 of the RSA, the non-terminating 2016 Lender Equity Commitment Parties shall have the right, but not the obligation, to make arrangements for one or more
of the non-terminating 2016 Lender Equity Commitment Parties to purchase all or any portion of the Available Shares resulting from such termination; provided that if none of the non-terminating 2016 Lender Equity Commitment Parties decide to purchase
any portion of the Available Shares resulting from such termination, the BrandCo Lender Equity Commitment Parties shall then have the right, but not the obligation, to make arrangements for one or more of the Equity Commitment Parties to purchase all
or any portion of the remaining Available Shares resulting from such termination.
(c) Notwithstanding anything in this Agreement to the contrary, if an Equity Commitment Party is a Defaulting Equity Commitment Party, (x) it shall not be entitled to any of the Backstop Commitment Premium,
Backstop Commitment Termination Premium, or any expense reimbursement applicable solely to such Defaulting Equity Commitment Party (including the Expense Reimbursement) provided, or to be provided, under or in connection
with this Agreement, and (y) it and its Affiliates, equity holders, members, partners, general partners, managers and its and their respective Representatives and controlling persons shall not be entitled to any indemnification pursuant to Article
IX hereof. All distributions of New Common Stock distributable to a Defaulting Equity Commitment Party on account of the Backstop Commitment Premium or payments of cash in respect of the Backstop Commitment
Termination Premium, as applicable, (i) shall be re-allocated contractually and turned over as liquidated damages to those non-Defaulting Equity Commitment Parties that have elected to subscribe for their full adjusted Backstop Commitment Percentage,
or (ii) if Available Shares are not purchased by the non-Defaulting Equity Commitment Parties, forfeited and retained by the Debtors, as applicable.
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(d) Nothing in this Agreement shall be deemed to require an Equity Commitment Party to purchase more than its Backstop Commitment Percentage of the Unsubscribed Shares or its Direct Allocation Percentage of the
Direct Allocation Shares.
(e) For the avoidance of doubt, notwithstanding anything to the contrary set forth in Section 10.6, but subject to Section 11.10, no provision of this
Agreement shall relieve any Defaulting Equity Commitment Party from any liability hereunder, or limit the availability of the remedies set forth in Section 11.9, in connection with any such Defaulting Equity Commitment Party’s Equity Commitment
Party Default under this Article II or otherwise.
Section 2.4 Subscription Escrow Account Funding. (a) Promptly, and in any event no later than the third (3rd) Business Day following the Equity Rights Offering Expiration Time (or sooner, as directed by the Required Equity Commitment Parties and the Debtors to the Equity Rights Offering Subscription Agent), the Equity Rights
Offering Subscription Agent shall deliver to each Equity Commitment Party a written notice (the “Funding Notice”) of:
(i) the number of Subscription Shares elected to be purchased by the Equity Rights Offering Participants in the Equity Rights Offering and the aggregate Purchase Price
therefor;
(ii) the number of Subscription Shares to be issued and sold by Holdings to such Equity Commitment Party on account of the Subscription
Commitment and the aggregate Purchase Price therefor (as it relates to each Equity Commitment Party, such Equity Commitment Party’s “Subscription Amount”);
(iii) the number of Direct Allocation Shares (based upon such Equity Commitment Party’s Direct Allocation Percentage) to be issued and sold
by Holdings to such Equity Commitment Party on account of the Direct Allocation Commitment and the aggregate Purchase Price therefor (as it relates to each Equity Commitment Party, such Equity Commitment Party’s “Direct
Allocation Amount”);
(iv) the aggregate number of Unsubscribed Shares, if any, and the aggregate Purchase Price required for the purchase thereof;
(v) the number of Unsubscribed Shares (based upon such Equity Commitment Party’s Backstop Commitment Percentage) to be issued and sold by
Holdings to such Equity Commitment Party and the aggregate Purchase Price therefor (as it relates to each Equity Commitment Party, such Equity Commitment Party’s “Backstop Amount”, and, together with
such Equity Commitment Party’s Subscription Amount and Direct Allocation Amount, the “Funding Amount”); and
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(vi) the account information (including wiring instructions) for the escrow account to which such Equity Commitment Party shall deliver and
pay its Funding Amount (the “Subscription Escrow Account”).
(b) No later than three (3) Business Days prior to the expected Effective Date (such date, the “Subscription Escrow Funding Date”), each Equity Commitment Party shall deliver and pay its Funding Amount by wire transfer (for the avoidance of doubt, Equity Commitment
Parties that are Affiliates may pay their Funding Amount together by way of one or more wire transfers) in immediately available funds in U.S. dollars into the Subscription Escrow Account in satisfaction of such Equity Commitment Party’s Funding
Commitment. The Subscription Escrow Account shall be established with an escrow agent reasonably satisfactory to the Required Equity Commitment Parties and the Debtors pursuant to an escrow agreement (a) in form and substance reasonably satisfactory
to the Required Equity Commitment Parties and the Debtors and (b) any provisions in the escrow agreement related to the 2016 Lender Equity Commitment Parties shall be in form and substance reasonably satisfactory to the Required Consenting 2016
Lenders. If this Agreement is terminated in accordance with its terms, the funds held in the Subscription Escrow Account shall be released, and each Equity Commitment Party shall receive from the Subscription Escrow Account the Cash amount actually
funded to the Subscription Escrow Account by such Equity Commitment Party, without any interest, promptly following such termination but in any event within seven (7) Business Days following such termination. The Debtors shall promptly direct the Equity Rights Offering Subscription Agent to provide any written backup, information and documentation relating to the information contained in the Funding Notice as
any Equity Commitment Party may reasonably request.
Section 2.5 Closing. (a)
Subject to Article VIII, unless otherwise mutually agreed in writing between the Debtors and the Required Equity Commitment Parties, the closing of the Equity Rights Offering, including the Backstop Commitments and the Direct Allocation Commitments
(the “Closing”), shall take place at the offices of Paul, Weiss, located at 1285 Avenue of the Americas, New York, NY 10019, at 9:00 a.m., New York City time, on the Effective Date (provided that all of
the conditions set forth in Article VIII shall have been satisfied or waived in accordance with this Agreement (other than conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such
conditions)). The date on which the Closing actually occurs shall be referred to herein as the “Closing Date.”
(b) At the Closing, the funds held in the Subscription Escrow Account shall be released to Holdings and utilized as set forth in, and in accordance with, the Plan and the Confirmation Order.
(c) At the Closing, the issuance of the Rights Offering Shares will be made by Holdings to each Equity Commitment Party (or to its designee in accordance with Section 2.7) against payment of such Equity
Commitment Party’s Funding Amount, in satisfaction of such Equity Commitment Party’s Funding Commitment.
Section 2.6 Transfer of Backstop Commitments. (a)(i) No Equity Commitment
Party (or any permitted transferee thereof) may Transfer all or any portion of its Backstop Commitment and/or Direct Allocation Commitment to any Debtor or any of the Debtors’ Affiliates; and (ii) notwithstanding
any other provision of this Agreement, the Backstop Commitment and/or Direct Allocation Commitment may not be Transferred later than the earlier of (x) the third (3rd)
Business Day following the Equity Rights Offering Expiration Time and (y) the date on which the Debtors have caused the Equity Rights Offering Subscription Agent to send the Funding Notice. For the avoidance of doubt, Subscription Rights may (subject
to applicable contractual limitations) be designated in accordance with the Equity Rights Offering Procedures.
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(b) Each Equity Commitment Party may Transfer all or any portion of its Backstop Commitment and/or Direct Allocation Commitment to any Related Fund (each,
a “Related Purchaser”), provided that such Equity Commitment Party shall deliver to the Debtors, counsel to the Initial Equity Commitment Parties, and the Equity
Rights Offering Subscription Agent a joinder to this Agreement, substantially in the form attached hereto as Exhibit A, executed by such Related Fund, and a joinder to the RSA, in a form reasonably acceptable to the
Debtors and the Required Consenting BrandCo Lenders, executed by such Related Fund. A Transfer of Backstop Commitment and/or Direct Allocation Commitment made pursuant to
this Section 2.6(b) shall relieve such transferring Equity Commitment Party from its obligations under this Agreement with respect to such Transfer.
(c) Each Equity Commitment Party may Transfer all or any portion of its Backstop Commitment and/or Direct Allocation
Commitment to any other Equity Commitment Party or such other Equity Commitment Party’s Related Fund (each, an “Existing Commitment Party Purchaser”), provided
that (A) to the extent such Existing Commitment Party Purchaser is not an Equity Commitment Party hereunder, prior to or concurrently with such Transfer such Equity Commitment Party shall deliver to the Debtors, counsel to the Initial Equity Commitment
Parties, and the Equity Rights Offering Subscription Agent a joinder to this Agreement, substantially in the form attached hereto as Exhibit B-1, executed by such Existing Equity Commitment Party Purchaser, and a joinder to the RSA, in a form
reasonably acceptable to the Debtors and the Required Consenting BrandCo Lenders, executed by such Existing Equity Commitment Party Purchaser, and (B) to the extent such Existing Commitment Party Purchaser is already an Equity Commitment Party
hereunder, such Equity Commitment Party shall deliver to the Debtors, counsel to the Initial Equity Commitment Parties, and the Equity Rights Offering Subscription Agent (x) an amendment to this Agreement, substantially in the form attached hereto as Exhibit
B-2, executed by such Equity Commitment Party and such Existing Commitment Party Purchaser, and (y) to the extent it is not already a party thereto, a joinder to the RSA, in a form reasonably acceptable to the Debtors and the Required Consenting
BrandCo Lenders, executed by such Existing Equity Commitment Party Purchaser. A Transfer of Backstop Commitment and/or Direct Allocation Commitment made pursuant to this Section 2.6(c) shall relieve such transferring Equity Commitment Party
from its obligations under this Agreement with respect to such Transfer.
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(d) Subject to Section 2.6(e), each Equity Commitment Party shall have the right to Transfer all or any portion of its
Backstop Commitment and/or Direct Allocation Commitment to any Person that is not an Existing Commitment Party Purchaser or a Related Fund (each of the Persons to whom such a Transfer is made, a “New Purchaser”),
provided that (i) such Transfer shall be subject to the reasonable consent of the Required Equity Commitment Parties (such consent shall be deemed to have been given after three (3) Complete Business Days
following notification in writing to counsel to the Initial Equity Commitment Parties of a proposed Transfer by such Equity Commitment Party); (ii) such Transfer shall be subject to the reasonable written consent of the Debtors (such consent shall be
deemed to have been given after three (3) Complete Business Days following written notification of a proposed Transfer by such Equity Commitment Party to the Debtors, unless any written objection is provided by the Debtors to such Equity Commitment
Party during such three (3) Complete Business Day period; provided that if the Debtors, within such three (3) Complete Business Day period, request customary financial information regarding the creditworthiness
of the New Purchaser from the New Purchaser, such consent shall be deemed to have been given after five (5) Complete Business Days following the Debtors receiving customary financial information regarding the creditworthiness of the New Purchaser from
the New Purchaser, unless any written objection is provided by the Debtors to such Equity Commitment Party during such five (5) Complete Business Day period; and (iii) prior to and in connection with such Transfer such Equity Commitment Party shall
deliver to the Debtors, counsel to the Initial Equity Commitment Parties, and the Equity Rights Offering Subscription Agent a joinder to this Agreement, substantially in the form attached hereto as Exhibit C, executed by such New Purchaser, and
a joinder to the RSA, in a form reasonably acceptable to the Debtors and the Required Consenting BrandCo Lenders, executed by such New Purchaser; provided that the Debtors shall be deemed to have consented to
such proposed Transfer to the extent such New Purchaser deposits in the Subscription Escrow Account on or before the date of such Transfer a Funding Amount sufficient to satisfy such transferring Equity Commitment Party’s obligations under this
Agreement.
(e) Any Transfer of Backstop Commitment and/or Direct Allocation Commitment made (or attempted to be made) in violation of this Agreement shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Parties or any Equity Commitment Party, and shall not create (or be deemed to create) any obligation or liability of any other
Equity Commitment Party or any Debtor to the purported transferee or limit, alter or impair any agreements, covenants, or obligations of the proposed transferor under this Agreement. Any Transfer of any Backstop Commitment and/or Direct Allocation
Commitment made pursuant to this Agreement shall be made in compliance with applicable securities laws. After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability of any Equity Commitment Party (or any permitted
transferee thereof) to Transfer any of the New Common Stock or any interest therein.
Section 2.7 Designation Rights. Each Equity Commitment Party shall have the right to designate by written notice to the Debtors, counsel to the Initial Equity Commitment Parties and the Equity Rights Offering Subscription Agent
no later than five (5) Business Days prior to the Closing Date that some or all of the Rights Offering Shares or the Backstop Commitment Premium that it is obligated to purchase or has the right to receive hereunder be issued in the name of, and
delivered to a Related Fund of such Equity Commitment Party upon receipt by Holdings of payment therefor in accordance with the terms hereof (it being understood that payment by either the Related Fund or the Equity Commitment Party shall satisfy the
applicable payment obligations of the Equity Commitment Party), which notice of designation shall (a) be addressed to the Equity Rights Offering Subscription Agent and signed by such Equity Commitment Party and each such Related Fund, (b) specify the
number of Rights Offering Shares or shares of New Common Stock issuable on account of the Backstop Commitment Premium, as applicable, to be delivered to or issued in the name of such Related Fund and (c) contain a confirmation by each such Related Fund
of the accuracy of the representations set forth in Sections 5.4 through 5.6 as applied to such Related Fund; provided that no such designation pursuant to this Section 2.7 shall relieve
such Equity Commitment Party from its obligations under this Agreement.
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Section 2.9 Notification of Aggregate Number of Exercised Subscription Rights. Upon
request from counsel to the Initial Equity Commitment Parties or counsel to the 2016 Lender Equity Commitment Parties from time to time prior to the Equity Rights Offering Expiration Time (and any permitted extensions thereto), the Debtors shall
promptly notify, or cause the Equity Rights Offering Subscription Agent to promptly notify, the Equity Commitment Parties of the aggregate number of Subscription Rights known by the Debtors or the Equity Rights Offering Subscription Agent to have been
exercised pursuant to the Equity Rights Offering as of the most recent practicable time before such request.
Section 3.1 Premium Payable by the
Debtors. Subject to Section 3.2, as consideration for the Funding Commitment and the other agreements of the Equity Commitment Parties in this Agreement, Holdings shall pay or cause to be paid a nonrefundable aggregate premium of 12.5%
of the Aggregate Rights Offering Amount (the “Backstop Commitment Premium”), payable in New Common Stock, to the Equity Commitment Parties on the Effective Date, calculated based on the Purchase Price. The
Backstop Commitment Premium shall be payable, in accordance with Section 3.2, to the Equity Commitment Parties (including any Replacement Equity Commitment Party, but excluding any Defaulting Equity Commitment Party) or their designees in
proportion to their respective Backstop Commitment Percentages at the time the payment of the Backstop Commitment Premium is made. Under no circumstances shall a reduction in the Aggregate Rights Offering Amount result in a reduction of the Backstop
Commitment Premium, including to the extent the Adjusted Aggregate Rights Offering Amount is applicable.
Section 3.2 Payment of Premium. The Backstop Commitment Premium shall be fully earned by the Equity Commitment
Parties upon execution of this Agreement, nonrefundable and non-avoidable upon entry of the Backstop Order and shall be paid by Holdings, free and clear of any withholding or deduction for any applicable Taxes, on the Effective Date as set forth above.
For the avoidance of doubt, to the extent payable in accordance with the terms of this Agreement, the Backstop Commitment Premium will be payable regardless of the amount of Unsubscribed Shares (if any) actually purchased; provided that subject to Section 2.3, the Backstop Commitment Premium shall not be payable in respect of the Funding Commitments of any Defaulting Equity Commitment Party. Holdings shall satisfy its obligation to pay the
Backstop Commitment Premium on the Effective Date by issuing the number of additional shares of New Common Stock (in each case rounded to the nearest whole share among the Equity Commitment Parties solely to avoid fractional shares of New Common Stock
as the Required Equity Commitment Parties may determine in their sole discretion) to each Equity Commitment Party (or its designee pursuant to Section 2.7) equal to such Equity Commitment Party’s Backstop Commitment Premium Share Amount; provided that if the Closing does not occur, the Backstop Commitment Termination Premium shall be payable (in lieu of the Backstop Commitment Premium) in Cash, to the extent provided in (and in accordance with) Section
10.6. For the avoidance of doubt, in no event shall both the Backstop Commitment Premium and the Backstop Commitment Termination Premium be payable by the Debtors.
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Section 3.3 Expense Reimbursement. (a) Whether or not the transactions
contemplated hereunder are consummated, the Debtors agree to pay all of the reasonable and documented out of pocket fees and expenses incurred by the Initial Equity Commitment Parties before, on or after the date hereof until the termination of this
Agreement in accordance with its terms that have not otherwise been paid pursuant to the RSA, the Final DIP Order or in connection with the Chapter 11 Cases, including: (A) the
reasonable and documented fees and expenses (including reasonable travel costs and expenses) of the Initial Equity Commitment Parties Advisors in connection with the transactions contemplated by this Agreement and the RSA; (B) all filing fees or other costs or fees associated with the matters contemplated by Section 5.10 and Section 6.14 (including, without limitation, all filing fees, if any, required by the HSR Act or
any other Antitrust Law) in connection with the transactions contemplated by this Agreement and all reasonable and documented out-of-pocket expenses of the Equity Commitment Parties related thereto; and (C) all reasonable and documented out-of-pocket fees and expenses incurred in connection with any required regulatory filings in connection with the transactions contemplated by this Agreement (including, without
limitation, filings done on Schedule 13D, Schedule 13G, Form 3 or Form 4, in each case, promulgated under the Exchange Act), in each case, that have been paid or are payable by the Equity Commitment Parties (such payment obligations set forth in clauses
(A), (B), and (C) above, collectively, the “Expense Reimbursement”). The Expense Reimbursement shall, pursuant to the Backstop Order, constitute allowed administrative expenses of the
Debtors’ estates under Sections 503(b) and 507 of the Bankruptcy Code, which, for the avoidance of doubt, shall be pari passu with all other administrative expenses of the Debtors’ estates; provided that nothing herein shall alter or modify the Debtors’ payment obligations under the Final DIP Order. Notwithstanding anything to the contrary in this Agreement, this Section 3.3 shall survive the
termination of this Agreement.
(b) The Expense Reimbursement as described in this Section 3.3 shall be paid in Cash in accordance with the terms herein. The Expense Reimbursement accrued through the date on which the Backstop Order is
entered shall be paid when due (for the avoidance of doubt, (x) in no event shall such invoices be due earlier than ten days after receipt thereof and (y) the invoices that shall set forth such Expense Reimbursements shall not include time details).
The Expense Reimbursement accrued thereafter shall be payable by the Debtors promptly when due. Unless otherwise ordered by the Bankruptcy Court, no recipient of any payment hereunder shall be required to file with respect thereto any interim or final
fee application with the Bankruptcy Court with respect to such payment.
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(c) For the avoidance of doubt, nothing herein shall alter or modify the Debtors’ payment obligations under the Final DIP Order or the RSA.
Section 3.4 Tax Treatment. The parties hereto agree that, for U.S. federal income tax
purposes, the Backstop Commitment Premium and the Backstop Commitment Termination Premium shall be treated as a “put premium” paid to the Equity Commitment Parties (the “Intended Tax Treatment”). Each
party shall file all tax returns consistent with, and take no position inconsistent with such treatment (whether in audits, tax returns or otherwise) unless required to do so pursuant to a “determination” within the meaning of Section 1313(a) of the
IRC.
Section 3.5 Integration; Administrative Expense. The provisions for the payment of the Backstop Commitment Premium, the Backstop Commitment Termination Premium and Expense
Reimbursement, and the indemnification provided herein, are an integral part of the transactions contemplated by this Agreement and without these provisions the Equity Commitment Parties would not have entered into this Agreement. The Backstop Order
and the Plan shall provide that the Backstop Commitment Premium, the Backstop Commitment Termination Premium, the Expense Reimbursement, and any indemnification provided herein shall constitute Allowed Administrative Claims of the Debtors’ estates
under Sections 503(b) and 507 of the Bankruptcy Code. In addition and as a result thereof, the Plan contemplates, and the proposed Confirmation Order that will be filed by the Debtors will contemplate, that any New Common Stock issued as payment of the
Backstop Commitment Premium shall be issuable under Section 1145 of the Bankruptcy Code.
Except as (a) set forth in the corresponding section of the Company Disclosure
Schedules, or (b) as disclosed in the Company SEC Documents and publicly available on the SEC’s Electronic Data-Gathering, Analysis and Retrieval system prior to the date hereof, each of the Debtors, jointly and severally, hereby represent and warrant
to the Equity Commitment Parties as set forth below. Except for representations, warranties and agreements that are expressly limited as to their date, each representation, warranty and agreement is made as of the date hereof.
Section 4.1 Organization and
Qualification. Each Debtor (a) is a duly organized and validly existing corporation, limited liability company or limited partnership, as the case may be, and, if applicable, in good standing (or the
equivalent thereof) under the Laws of the jurisdiction of its incorporation or organization (except where the failure to be in good standing (or the equivalent) would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect), (b) has the requisite corporate or other applicable power and authority to own, lease and operate its property and assets and to transact the business in which it is currently engaged and
presently proposes to engage in all material respects and (c) is duly qualified and is authorized to do business and is in good standing (or the equivalent thereof) in each jurisdiction in which it owns or leases
property or in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing has not had, and would not reasonably be
expected to result in, individually or in the aggregate, a Material Adverse Effect. Each Debtor is the record and beneficial owner of and has good and valid title to all of the issued and outstanding equity ownership interest of each of its respective
Subsidiaries (the “Subsidiary Interests”) free and clear of all Liens (other than Permitted Liens or Liens permitted under the Final DIP Order) or Liens in connection with the Allowed Claims, and free of
any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subsidiary Interests other than transfer restrictions imposed by applicable Law). All of the issued and outstanding Subsidiary
Interests are duly authorized, validly issued, fully paid and nonassessable (if such concepts apply). There are no: (i) outstanding securities convertible or exchangeable into Subsidiary Interests; (ii) options, warrants, phantom equity rights,
notional interests, profits interests, calls, equity equivalents, restricted equity, performance equity, profit participation rights, stock appreciation rights, redemption rights or subscriptions or other rights, agreements or commitments obligating
any subsidiary to issue, transfer or sell any Subsidiary Interests; (iii) voting trusts or other agreements or understandings to which any Subsidiary is a party or by which any Subsidiary is bound with respect to the voting, transfer or other
disposition of Subsidiary Interests; or (iv) outstanding obligations of any Debtor to repurchase, redeem or otherwise acquire any Subsidiary Interests.
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Section 4.2 Corporate Power and Authority. Each Debtor has
the requisite corporate power and authority (a) to enter into, execute and deliver this Agreement and any other agreements contemplated herein or in the First Amended Plan and (b)
subject to entry of the Backstop Order, to perform their obligations hereunder and (c) subject to entry of the Backstop Order and the Confirmation Order, to consummate the transactions contemplated herein and in
the First Amended Plan, to enter into, execute and deliver each of the Definitive Documents and to perform its obligations thereunder. Subject to the receipt of the foregoing Orders, as applicable, the execution and delivery of this Agreement and each
of the other Definitive Documents and the consummation of the transactions contemplated hereby and thereby have been or will be duly authorized by all requisite corporate action on behalf of the Debtors, and no other corporate proceedings on the part
of the Debtors are or will be necessary to authorize this Agreement or any of the other Definitive Documents or to consummate the transactions contemplated hereby or thereby.
Section 4.3 Execution and Delivery; Enforceability. Subject
to entry of the Backstop Order, this Agreement will have been, and subject to the entry of both the Backstop Order and the Confirmation Order, each other Definitive Document will be, duly executed and delivered by each of the Debtors party thereto.
Upon entry of the Backstop Order and, as applicable, the Confirmation Order, and assuming due and valid execution and delivery hereof by the Equity Commitment Parties, the Debtors’ obligations hereunder will constitute the valid and legally binding
obligations of the Debtors enforceable against the Debtors in accordance with their respective terms. Upon entry of the Confirmation Order and assuming due and valid execution and delivery of this Agreement and the other Definitive Documents by the
Equity Commitment Parties, each of the obligations hereunder and thereunder will constitute the valid and legally binding obligations of the Debtors, enforceable against the Debtors, in accordance with their respective terms.
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Section 4.4 Authorized and Issued Capital Shares. On the Closing Date, (i) the total
issued capital stock of Holdings will be consistent with the terms of the First Amended Plan and Disclosure Statement; (ii) no New Common Stock will be held by Holdings in its treasury; and (iii) no warrants (other than the New Warrants) to purchase
New Common Stock will be issued and outstanding.
(a) As of the Closing Date, the Total Outstanding Shares of Holdings will have been duly authorized and validly issued and will be fully paid and non-assessable, and will not be subject to any preemptive rights
(other than any rights set forth in the New Organizational Documents).
(b) Except as set forth in this Agreement, the First Amended Plan and the New Organizational Documents, and except for a sufficient number of shares of New Common Stock reserved for issuance pursuant to the
Management Incentive Plan, as of the Closing Date, no shares of capital stock or other equity securities or voting interest in Holdings will have been issued, reserved for issuance or outstanding.
(c) Except as described in this Agreement and except as set forth in the First Amended Plan, Registration Rights Agreement, if applicable, the New Organizational Documents, or the Exit Facilities Documents, upon
the Closing, none of the Debtors will be party to or otherwise bound by or subject to any outstanding option, warrant, call, right, security, commitment, Contract, arrangement or undertaking (including any preemptive right) that (i) obligates any Debtor to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any
shares of the capital stock of, or other equity or voting interests in any Debtor or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in any Debtor, (ii) obligates any Debtor to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking, (iii) restricts the Transfer of
any shares of capital stock of any Debtor (other than any restrictions included in the Exit Facilities or any corresponding pledge agreement) or (iv) relates to the voting of any shares of capital stock of any
Debtor.
Section 4.5 Issuance. Subject to entry of the Backstop Order
and the Confirmation Order, (x) the Rights Offering Shares to be issued in connection with the consummation of the Equity Rights Offering and pursuant to the terms hereof in exchange for the Aggregate Rights Offering Amount therefor (or the Adjusted
Aggregate Rights Offering Amount, if applicable), and (y) the New Common Stock to be issued in connection with the Backstop Commitment Premium, will, when issued and delivered on the Closing Date, be duly and validly authorized, issued and delivered
and shall be fully paid and nonassessable, and free and clear of all Taxes, Liens (other than Transfer restrictions imposed hereunder or under the New Organizational Documents or by applicable Law), preemptive rights, subscription and similar rights
(other than any rights set forth in the New Organizational Documents, the Registration Rights Agreement, if applicable, the First Amended Plan, the RSA, and other than transfer restrictions pursuant to applicable securities laws).
Section 4.6 Reserve Regulations. No part of the proceeds of
the purchase of Rights Offering Shares will be used (a) to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock, or (b) for any other purpose, in each case, in violation of or inconsistent with any of the provisions of any regulation of the Board of Governors, including, without limitation, Regulations T, U and X thereto. The terms “margin stock” and
“purpose of buying or carrying” shall have the meanings assigned to them in the aforementioned Regulation U.
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Section 4.7 No Conflict. Assuming the consents described in
Section 4.8 are obtained, the execution and delivery by the Debtors of this Agreement, the First Amended Plan and the other Definitive Documents, the compliance by the Debtors with the provisions hereof and thereof and the consummation of the
transactions contemplated herein and therein will not (a) conflict with, or result in a breach, modification or violation of, any of the terms or provisions of, or constitute a default
under (with or without notice or lapse of time, or both), or result, except to the extent contemplated by the First Amended Plan, in the acceleration of, or the creation of any Lien under, or cause any payment or consent to be required under any
Contract to which any Debtor will be bound as of the Closing Date after giving effect to the First Amended Plan or to which any of the property or assets of any Debtor will be subject as of the Closing Date after giving effect to the First Amended
Plan, (b) result in any violation of the provisions of the New Organizational Documents or any of the organizational documents of any Debtor, or (c)
result in any violation of any Law or Order applicable to any Debtor or any of their properties, except in each of the cases described in this Section 4.7, which would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 4.8 Consents
and Approvals. No consent, approval, authorization, Order, registration or qualification of or with any Governmental Authority having jurisdiction over any Debtor or any of their respective properties (each, an “Applicable
Consent”) is required for the execution and delivery by any Debtor of this Agreement, the First Amended Plan and the other Definitive Documents, the compliance by any Debtor with the provisions hereof and thereof and the consummation of
the transactions contemplated herein and therein, except for (a) the entry of the Backstop Order authorizing each of Holdings and the other Debtors to execute and deliver this
Agreement and perform its obligations hereunder, (b) the entry of the Confirmation Order authorizing Holdings and the other Debtors to perform each of their respective obligations under the First Amended Plan, (c) the entry of the Disclosure Statement Order, (d) entry by the Bankruptcy Court, or any other court of competent jurisdiction, of Orders as may be necessary in the Chapter 11
Cases from time to time, (e) filings, notifications, authorizations, approvals, consents, clearances or termination or expiration of all applicable waiting periods under any Antitrust Laws in connection with the
transactions contemplated by this Agreement, (f) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or “Blue Sky” Laws in connection with the
purchase of the Unsubscribed Shares by the Equity Commitment Parties, the issuance of the Subscription Rights, the issuance of the Rights Offering Shares pursuant to the exercise of the Subscription Rights or the Direct Allocation Rights or the
issuance of New Common Stock, as applicable, in satisfaction of OpCo Term Loan Claims and 2020 Term B-2 Loan Claims pursuant to the First Amended Plan and the issuance of New Common Stock as payment of the Backstop Commitment Premium and (g) any Applicable Consents that, if not made or obtained, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 4.9 Arm’s-Length. The Debtors agree that each of the Equity Commitment Parties is
acting solely in the capacity of an arm’s-length contractual counterparty with respect to the transactions contemplated hereby (including in connection with determining the terms of the Equity Rights Offering) and not as a financial advisor or a
fiduciary to, or an agent of any Debtor and no Equity Commitment Party is advising any Debtor as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction.
Section 4.10 Financial Statements. The (a) audited
consolidated balance sheets of the Debtors as of December 31, 2021, and the related consolidated statements of operations, comprehensive income (loss), changes in stockholders’ equity and cash flows for the year ended December 31, 2021 and the related
notes thereto as filed in the Debtors’ Annual Report on Form 10-K for such year, and (b) the unaudited consolidated balance sheets of the Debtors as of September 30, 2022 and the related consolidated statements of operations, comprehensive income
(loss) changes in stockholders’ equity and of cash flows as filed in the Debtors’ applicable Quarterly Reports on Form 10-Q for such quarters (collectively, the “Financial Statements”) present fairly in
all material respects the consolidated financial position of the Debtors and their consolidated Subsidiaries as of the dates indicated and the results of their operations and their cash flows for the periods specified, subject to customary year-end
audit adjustments and the absence of certain footnotes in the case of the unaudited quarterly financial statements. The Financial Statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) as applied on a consistent basis throughout the periods covered thereby (except as disclosed therein).
Section 4.11 Company SEC Documents and Disclosure Statements.
Since December 1, 2021, the Debtors have filed all required reports, schedules, forms and statements with the SEC (the “Company SEC Documents”). As of their respective dates, and giving effect to any
amendments or supplements thereto filed prior to the date of this Agreement, each of the Company SEC Documents that have been filed as of the date of this Agreement complied in all material respects with the requirements of the Securities Act or the
Exchange Act applicable to such Company SEC Documents. No Company SEC Document that has been filed prior to the date of this Agreement, after giving effect to any amendments or supplements thereto and to any subsequently filed Company SEC Documents, in
each case filed prior to the date of this Agreement, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Disclosure Statement as approved by the Bankruptcy Court will conform in all material respects with Section 1125 of the Bankruptcy Code.
Section 4.12 Absence of Certain Changes. Since September 30, 2022, except for the Chapter 11 Cases and any adversary proceedings or contested motions in connection therewith,
including the Adversary Proceeding, no event, development, occurrence or change has occurred or exists that constitutes, individually or in the aggregate, a Material Adverse Effect.
Section 4.13 No Violation; Compliance with Laws. Holdings is not in violation of its charter or Bylaws and no other Debtor is in violation of its
respective articles of association, charter, bylaws or similar organizational document, except for any such violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the
Debtors’ Knowledge, none of the Debtors is in violation of any Law or Order, except for any such violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 4.14 Legal Proceedings.
Other than the Chapter 11 Cases and any adversary proceedings or contested motions commenced in connection therewith, including the Adversary Proceeding, there are no material legal, governmental, administrative, judicial or regulatory investigations,
audits, actions, suits, claims, arbitrations, demands, demand letters, claims, notices of noncompliance or violations, or proceedings (“Legal Proceedings”) pending or, to the Knowledge of the Debtors,
threatened to which Holdings or any Debtor is a party or to which any property of Holdings or any Debtor is the subject, in each case that in any manner draws into question the validity or enforceability of this Agreement, the First Amended Plan or the
other Definitive Documents or that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.15 Labor Relations. Except as, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any of the Debtors pending or, to the knowledge of the Debtors, threatened; (b) hours worked by and payment made to employees of any of the Debtors
have not been in violation of the Fair Labor Standards Act or any other applicable law dealing with such matters; and (c) all payments due from any of the Debtors on account of employee health and welfare insurance have been paid or accrued as a
liability on the books of the applicable Debtors.
Section 4.16 Intellectual Property. Each of the Debtors owns,
or has a valid license or right to use, all Intellectual Property necessary for the conduct of its business as currently conducted free and clear of all Liens (other than Liens permitted under the DIP Credit Agreement), and except where the failure to
do so would not reasonably be expected to have a Material Adverse Effect. To the Knowledge of the Debtors, no Debtor is infringing, misappropriating, diluting or otherwise violating any Intellectual Property rights of any Person in a manner that would
reasonably be expected to have a Material Adverse Effect. Each Debtor takes all reasonable actions that in the exercise of its reasonable business judgment should be taken to protect its Intellectual Property, including Intellectual Property that is
confidential in nature, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 4.17 Title to Real and Personal Property. (a)
Each Debtor has good and valid fee simple title to, or valid leasehold interests in, all Real Property, and its other tangible personal property and assets, in each case, except (i) for Permitted Liens, (ii) for defects in title that do not materially
interfere with the Debtors’ ability to conduct their business or utilize their assets as currently conducted or utilized, and (iii) where the failure to have such valid title or leasehold interest would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
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(b) Each Debtor is in compliance with all obligations under all leases (as may be amended from time to time) to which it is a party that have not been rejected in the Chapter 11 Cases, except where the failure to
comply has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and all such leases are in full force and effect (except to the extent subject to applicable to bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium, and similar laws affecting creditors’ rights generally and to general principles of equity), except leases in respect of which the failure to be in full force and effect have not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each Debtor enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy
peaceful and undisturbed possession have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.18 No Undisclosed Relationships. Other than contracts or other direct or
indirect relationships between or among any of the Debtors, or contracts or relationships that are immaterial in amount or significance, there are no direct or indirect relationships existing as of the date hereof between or among the Debtors, on the
one hand, and any director, officer or greater than five percent (5%) stockholder of the Debtors, on the other hand, that is required by the Exchange Act to be described in the Debtors’ filings with the SEC and that is not so described, filed, or
incorporated by reference in such filings, except for the transactions contemplated by this Agreement.
Section 4.19 Licenses and Permits. Each Debtor possesses all
licenses, certificates, permits and other authorizations issued by, and have all declarations and filings with, the appropriate Governmental Unit, in each case, that are necessary for the
ownership or lease of their respective properties and the conduct of the business of the applicable Debtor, except where the failure to possess, make or give the same would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Neither Holdings nor any of other Debtor (a) has received notice of any revocation or modification of any such license, certificate, permit or authorization from the applicable Governmental Unit with authority with respect
thereto or (b) has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except to the extent that any of the foregoing would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
Section 4.20 Environmental. Other than exceptions to any of the
following that would not reasonably be expected to have a Material Adverse Effect, (a) no Debtor (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law for the operation of its business; or (ii) has become subject to any pending or threatened Environmental Liability, (b) to the Borrower’s Knowledge no Hazardous Materials has been Released on, at, to, under, in or from any
Real Property, and (c) to the Borrower’s Knowledge, there are no existing facts or circumstances (including any presence or Release of Hazardous Materials at any real property formerly owned, leased, or operated by any Debtor) that are reasonably
likely to give rise to any Environmental Liability of any Debtor.
Section 4.21 Tax Matters. Except in each case as to matters
that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
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(a) Subject to the Bankruptcy Code, the terms of the applicable Orders and Canadian Orders and any required approval by the Bankruptcy Court or the Canadian Court,
each Debtor (i) has filed or caused to be filed all federal, state, provincial and other Tax returns that are required to be filed and (ii) has paid or caused to be paid all
Taxes shown to be due and payable on said returns and all other Taxes, fees or other charges imposed on it or on any of its property by any Governmental Unit (other than (A) any returns or amounts that are not yet due or (B) amounts the validity of
which are currently being contested in good faith by appropriate proceedings and with respect to which any reserves required in conformity with GAAP have been provided on the books of the applicable Debtor).
(b) Other than in connection with (i) the Chapter 11 Cases, or (ii) Taxes being contested in good faith by appropriate proceedings for which adequate provisions have been made (to the extent required in accordance
with GAAP), (A) there is no outstanding audit, assessment or written claim concerning any Tax liability of any Debtor, (B) no Debtor has received any written notices from any taxing authority relating to any outstanding tax issue that could affect any
Debtor after the Effective Date; and (C) there are no Liens with respect to Taxes upon any of the assets or properties of any Debtor, other than Permitted Liens.
(c) All Taxes that any Debtor was required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly
withheld or collected, and have been timely paid to the proper authorities to the extent due and payable.
(d) None of the Debtors are parties to any Tax sharing, allocation or indemnification agreement or arrangement that would have a continuing effect after the Effective Date (other than such agreements or
arrangements that form part of a larger commercial agreement or arrangement, the primary subject matter of which is not Tax, and agreements or arrangements wholly between the Debtors and their subsidiaries).
(e) No Debtor has been requested in writing, and, to the Knowledge of the Debtors, there are no claims against any Debtor, to pay any liability for Taxes of any Person (other than the Debtors or their direct or
indirect subsidiaries) that is material to any Debtor, arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign law, or as a transferee or successor.
(f) No Debtor has been either a “distributing corporation” or a “controlled corporation” in a distribution occurring during the last five years in which the parties to such distribution treated the distribution as
one to which Section 355 of the IRC is applicable.
Section 4.22 Employee Benefit Plans. (a) Except as
would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect: (i) neither a Reportable Event nor a failure to meet the minimum funding standards under Section 412
of the IRC or Section 302 of ERISA or applicable pension standards legislation has occurred during the five-year period prior to the date on which this representation is made with respect to any Single Employer Plan or Canadian Pension Plan, and each
Single Employer Plan and Canadian Pension Plan has complied with the applicable provisions of ERISA, the IRC, or applicable law; (ii) no termination of a Single Employer Plan or Canadian Pension Plan has occurred,
and no Lien in favor of the PBGC or a Single Employer Plan or Canadian Pension Plan has arisen on the assets of any Debtor or any other ERISA Affiliate, during such five-year period; (iii) the present value of all
accrued benefits under each Single Employer Plan or Canadian Pension Plan (based on those assumptions used to fund such Single Employer Plans and Canadian Pension Plans) did not, as of December 31, 2021, exceed the value of the assets of such Single
Employer Plan or Canadian Pension Plan allocable to such accrued benefits; (iv) no Debtor or any other ERISA Affiliate has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or
would reasonably be expected to result in a liability under ERISA; (v) no Debtor or any other ERISA Affiliate would become subject to any liability under ERISA if such Debtor or such ERISA Affiliate were to
withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made; and (vi) no Multiemployer Plan is insolvent or is in endangered or
critical status (within the meaning of Section 432 of the IRC or Section 305 of ERISA). No Canadian Pension Plan is a Canadian Multiemployer Plan.
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(b) Each Debtor and its Subsidiaries have not incurred, and do not reasonably expect to incur, any liability under ERISA or the IRC with respect to any Single Employer Plan that is subject to Title IV of ERISA or
Section 412 of the IRC or Section 302 of ERISA and that is maintained or contributed to by an ERISA Affiliate (other than the Debtor and its Subsidiaries) merely by virtue of being treated as a single employer under Title IV of ERISA with the sponsor
of such plan that would reasonably be likely to have a Material Adverse Effect.
Section 4.23 Internal Control Over Financial Reporting. The Debtors have established and
maintain a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act) that complies in all material respects with the requirements of the Exchange Act and has been designed to
provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Debtors are not aware of any material weakness in their internal control over
financial reporting, other than any such material weaknesses with respect to which a plan for remediation has been established.
Section 4.24 Disclosure Controls and Procedures. The Debtors maintain disclosure controls
and procedures (within the meaning of Rules 13a-15(e) and 15d-15(e) promulgated under the Exchange Act) that are designed to ensure that information required to be disclosed by the Debtors in the reports that they file and submit under the Exchange Act
is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including that information required to be disclosed by the Debtors in the reports that they file and submit under the Exchange Act is
accumulated and communicated to management of the Debtors as appropriate to allow timely decisions regarding required disclosure, and such disclosure controls and procedures are effective.
Section 4.25 Material Contracts. Other than as a result of a
rejection motion filed by any Debtor in the Chapter 11 Cases, all Material Contracts are valid, binding and enforceable by and against each applicable Debtor, and to the Knowledge of each Debtor, each other party thereto (except where the failure to be
valid, binding or enforceable would not constitute a Material Adverse Effect), and, no written notice to terminate, in whole or a material portion thereof, any Material Contract has been delivered to any Debtor (except where such termination would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect). Other than as a result of the filing of the Chapter 11 Cases, none of the Debtors nor, to the Knowledge any Debtor, any other party to any Material Contract,
is in default or breach under the terms thereof, in each case, except for such instances of default or breach that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 4.26 No Unlawful Payments. Each Debtor (and all
Persons acting on behalf of each Debtor) is in compliance with applicable Anti-Corruption Laws and has implemented and maintains in effect policies and procedures reasonably designed to facilitate continued compliance. During the Defined Period, no
funds of any Debtor has been or will be used by any Debtor, directly or indirectly, for any payments to any Person, governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting
in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any applicable Anti-Corruption Law.
Section 4.27 Compliance with Money
Laundering Laws. The operations of the Debtors are and have been at all times during the Defined Period, conducted in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, as
applicable, the U.S. Currency and Foreign Transactions Reporting Act of 1970, the money laundering statutes of all jurisdictions in which the Debtors operate (and the rules and regulations promulgated thereunder) and any related or similar applicable
Laws (collectively, the “Money Laundering Laws”) and no Legal Proceeding by or before any Governmental Unit or any arbitrator involving alleged violations of Money Laundering Laws by the Debtors is pending
or, to the Knowledge of the Debtors, threatened. Each Debtor and its respective Subsidiaries have implemented and maintain in effect policies and procedures reasonably designed to promote compliance with the applicable Money Laundering Laws.
Section 4.28 Compliance
with Sanctions Laws. None of the Debtors or any of their respective directors, officers or, to the Knowledge of each of the Debtors, employees, Affiliates, agents or other Persons acting on their behalf is currently the target of any economic or
financial sanctions imposed, administered or enforced by the United States (including the U.S. Department of State and the Office of Foreign Assets Control of the U.S. Department of the Treasury), the European Union or any of its member states, the
United Nations Security Council or the United Kingdom (including the Office of Financial Sanctions Implementation of Her Majesty’s Treasury) (collectively, “Sanctions”), including by being domiciled,
organized or resident in any country or territory that is, or whose government is, the target of country-wide or territory-wide U.S. Sanctions broadly prohibiting or restricting dealings in, with or involving such country or territory (a “Sanctioned Jurisdiction”). No Debtor will directly or indirectly use any part of the proceeds of the Equity Rights Offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other Person, (A) for the purpose of financing the activities of, or business of or with, any Person that is currently the target of any Sanctions; (B)
to fund or finance any activities or business of, with or in any Sanctioned Jurisdiction in violation of applicable Sanctions or other applicable law; or (C) in any manner that would constitute or give rise to a
violation of Sanctions by any party hereto (including the Equity Commitment Parties) (in each case, including under U.S. Sanctions).
Section 4.29 No Broker’s Fees. None of the Debtors is a party to any Contract with any
Person (other than this Agreement) that would give rise to a valid claim against the Equity Commitment Parties for a brokerage commission, finder’s fee or like payment in connection with the Equity Rights Offering or the sale of the Unsubscribed
Shares.
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Section 4.30 Takeover Statutes. No Takeover Statute is applicable to this Agreement, the
Backstop Commitment and the other transactions contemplated by this Agreement.
Section 4.31 Investment Company Act. None of the Debtors is
an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
Section 4.32 Insurance. Except as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (a) all premiums due and payable in respect of insurance policies maintained by each Debtor have been paid, (b) the insurance
maintained by or on behalf of each Debtor is adequate and (c) as of the date hereof, to the Knowledge of each of the Debtors, no Debtor has received notice from any insurer or agent of such insurer with respect to
any insurance policies of any Debtor of cancellation or termination of such policies, other than such notices which are received in the ordinary course of business or for policies that have expired on their terms.
Section 4.33 No Undisclosed Material Liabilities. Except as
set forth on the Disclosure Statement, there are no liabilities or obligations of any Debtor of any kind whatsoever, whether accrued, contingent, absolute, determined or determinable, and there is no existing condition, situation or set of
circumstances that would reasonably be expected to result in such a liability or obligation other than: (a) liabilities or obligations disclosed and provided for in the Financial Statements; (b) liabilities or obligations incurred in the ordinary
course of business consistent with past practices since the date of the most recent balance sheet presented in the Financial Statements; (c) liabilities or obligations that would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and (d) liabilities or obligations that would not be required to be set forth or reserved for on a balance sheet of the Debtors (and the notes thereto) prepared in accordance with GAAP consistently applied and in accordance
with past practice; it being understood that for purposes of this clause section, any contract, agreement or understanding with any Person providing for a payment (in Cash or otherwise) in excess of $5.0 million in connection with any of the
transactions contemplated under the First Amended Plan, the RSA or this Agreement (other than any contract, agreement, understanding or other transaction specifically contemplated by this Agreement, the First Amended Plan, the RSA, the Management
Incentive Plan, any DIP Credit Agreement and any other Definitive Documents) shall not be deemed to have been incurred in the ordinary course of business or deemed to be non-material, and shall otherwise be deemed to be required to be set forth on the
Debtors’ balance sheet for purposes of clause (d) above notwithstanding such clause.
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Each Equity Commitment Party represents and warrants as to itself only (unless otherwise set forth herein, as of the date of this Agreement and as of the Closing Date) as set forth below.
Section 5.1 Incorporation. Such Equity Commitment Party is validly existing and in good
standing under the Laws of the state of its organization, and this Agreement is a legal, valid, and binding obligation of such Equity Commitment Party, enforceable against it in accordance with its terms, except as enforcement may be limited by
applicable Laws relating to or limiting such Equity Commitment Party’s rights generally or by equitable principles relating to enforceability.
Section 5.2 Corporate Power and Authority. Such Equity Commitment Party has (or will
have, at the relevant time) all requisite corporate or other power and authority to enter into, execute, and deliver this Agreement and to effectuate the Restructuring Transactions contemplated by, and perform its respective obligations under, this
Agreement.
Section 5.3 Execution and Delivery. This Agreement and each other Definitive Document to
which such Equity Commitment Party is a party (a) has been, or prior to its execution and delivery will be, duly and validly executed and delivered by such Equity Commitment Party and (b) upon entry of the Backstop Order and, as applicable, the
Confirmation Order and assuming due and valid execution and delivery hereof and thereof by the Company and the other Debtors (as applicable), will constitute a legal, valid, and binding obligation of such Equity Commitment Party, enforceable against
such Equity Commitment Party in accordance with their respective terms, except as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
Section 5.4 No Registration. Such Equity Commitment Party
understands that (a) the Rights Offering Shares (including the Unsubscribed Shares and Direct Allocation Shares) and any New Common Stock issued to such Equity Commitment Party in satisfaction of the Backstop
Commitment Premium have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends on, among other things, the bona fide nature of the
investment intent and the accuracy of such Equity Commitment Party’s representations as expressed herein or otherwise made pursuant hereto, and (b) the Rights Offering Shares (including the Unsubscribed Shares and
the Direct Allocation Shares) issued to an underwriter as defined in Section 1145 of the Bankruptcy Code cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available.
Section 5.5 Purchasing Intent. Such Equity Commitment Party is not acquiring the Rights
Offering Shares (including the Direct Allocation Shares and the Unsubscribed Shares) or any New Common Stock issued to such Equity Commitment Party in satisfaction of the Backstop Commitment Premium with the view to, or for resale in connection with,
any distribution thereof not in compliance with applicable securities Laws, and such Equity Commitment Party has no present intention of selling, granting any participation in, or otherwise distributing the same, except in compliance with applicable
securities Laws.
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Section 5.6 Sophistication; Evaluation. Such Equity
Commitment Party is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act or a “qualified institutional buyer” within the meaning of Rule 144A of the Securities Act. Such Equity Commitment Party understands that the Rights
Offering Shares (including the Direct Allocation Shares and Unsubscribed Shares) are being offered and sold to such Equity Commitment Party in reliance upon specific exemptions from the registration requirements of United States federal and state
securities laws and that the Debtors are relying upon the truth and accuracy of, and such Equity Commitment Party’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Equity Commitment Party set
forth herein in order to determine the availability of such exemptions and the eligibility of such Equity Commitment Party to acquire the Rights Offering Shares (including the Direct Allocation Shares and Unsubscribed Shares). Such Equity Commitment
Party has such knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of its investment in the Rights Offering Shares (including the Direct Allocation Shares and Unsubscribed Shares). Such
Equity Commitment Party understands and is able to bear any economic risks associated with such investment (including the necessity of holding such shares for an indefinite period of time). Except for the representations and warranties of the Debtors
expressly set forth in this Agreement, such Equity Commitment Party has independently evaluated the merits and risks of its decision to enter into this Agreement and disclaims reliance on any representations or warranties, either express or implied, by
or on behalf of the Debtors.
Section 5.9 No Conflict. The entry into and performance by each Equity Commitment Party
of, and the transactions contemplated by, this Agreement do not, and will not, conflict in any material respect with any Law or regulation applicable to it or with any of its articles of association, memorandum of association, or other constitutional
documents.
Section 5.10 Consents and Approvals. No consent, approval,
authorization, Order, registration or qualification of or with any Governmental Authority having jurisdiction over such Equity Commitment Party or any of its properties is required for the execution and delivery by such Equity Commitment Party of this
Agreement and each other Definitive Document to which such Equity Commitment Party is a party, the compliance by such Equity Commitment Party with the provisions hereof and thereof and the consummation of the transactions (including the purchase by
such Equity Commitment Party of its Backstop Commitment Percentage of the Unsubscribed Shares or its portion of the Rights Offering Shares) contemplated herein and therein, except (a) Antitrust Approvals, if any, including but not limited to any
filings required pursuant to the HSR Act, in each case, in connection with the transactions contemplated by this Agreement, and (b) any consent, approval, authorization, Order, registration or qualification which, if not made or obtained, would not
reasonably be expected, individually or in the aggregate, to have a material adverse effect on such Equity Commitment Party’s performance of its obligations under this Agreement.
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Section 5.11 Legal Proceedings. Other than the Chapter 11 Cases and any adversary
proceedings, including the Adversary Proceeding, or contested motions commenced in connection therewith, there are no Legal Proceedings pending or, to the Knowledge of such Equity Commitment Party, threatened to which the Equity Commitment Party is a
party or to which any property of the Equity Commitment Party is the subject, that would reasonably be expected to prevent, materially delay, or materially impair the ability of such Equity Commitment Party to consummate the transactions contemplated
hereby.
Section 5.12 Sufficiency of Funds. Such Equity Commitment Party has, or will have as of
the Closing, sufficient available funds to fulfill its obligations under this Agreement and the other Definitive Documents. For the avoidance of doubt, such Equity Commitment Party acknowledges that its obligations under this Agreement and the other
Definitive Documents are not conditioned in any manner upon its obtaining financing.
Section 5.13 No Broker’s Fees. Such Equity Commitment Party is not a party to any
Contract with any Person (other than the Definitive Documents and any Contract giving rise to the Expense Reimbursement hereunder) that would give rise to a valid claim against Holdings or any Debtor for a brokerage commission, finder’s fee or like
payment in connection with the Equity Rights Offering or the sale of the Unsubscribed Shares.
Section 6.1 Approval Orders. The Debtors shall use their
commercially reasonable efforts to, (a) obtain the entry of the Backstop Order and (b) cause the Backstop Order to become a Final Order (and request that such Order be
effective immediately upon entry by the Bankruptcy Court pursuant to a waiver of Bankruptcy Rules 3020 and 6004(h), as applicable), in each case, as soon as reasonably practicable but no later than February 22, 2023, and in a manner consistent with the
RSA and this Agreement.
Section 6.2 Definitive Documents. Without limitation and subject to the terms of the RSA (including the consent rights therein), and except as expressly provided
otherwise in this Agreement, (i) the Definitive Documents listed in Section 3.01(a)-(c), (e), (f), (h) and (k) of the RSA shall also be in form and substance acceptable to the Required Equity Commitment Parties and the Debtors; and (ii) the
Definitive Documents listed in Section 3.01(d), (i), (j), and (l)-(n) of the RSA shall also be in form and substance reasonably acceptable to the Required Equity Commitment Parties and the Debtors.
Section 6.3 Conduct of Business. Except as set forth in this Agreement or the RSA or with the prior written consent of the Required Equity
Commitment Parties (requests for which, including related information, shall be directed to the counsel and financial advisors to the Equity Commitment Parties), during the period from the date of this Agreement to the earlier of (a) the Closing Date
and (b) the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”), each of the Debtors shall carry on its business in the ordinary course, consistent with past
practice and the RSA, to: (i) preserve intact its business; (ii) keep available the services of its officers and employees; (iii)
preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others having material business dealings with the each of the Debtors in connection with their business; and (iv)
maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations (except where the failure to do so would not individually, or in the aggregate, have a Material Adverse Effect).
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Section 6.4 Access to Information; Cleansing. Subject to
applicable Law, upon a minimum of two (2) Business Days’ advance written notice to the Debtors during the Pre-Closing Period, the Debtors shall afford the Initial Equity Commitment Parties and their Representatives, (i) reasonable access (without any
material disruption to the conduct of the Debtors’ business) during normal business hours to the Debtors’ books and records, (ii) reasonable access to the management and advisors of the Debtors for the purposes of evaluating the Debtors’ assets,
liabilities, operations, businesses, finances, strategies, prospects, and affairs, and (iii) timely and reasonable responses to all reasonable diligence requests, provided that all rights provided for in this Section
6.4 shall be subject to the terms of any agreements between the Debtors and third parties that may be affected by the exercise of the foregoing rights. All requests for information and access made in accordance with this Section 6.4 shall
be directed to Paul, Weiss, as counsel for the Debtors, or such other Person as may be designated in writing by the Debtors’ executive officers. To the extent that information provided in connection with this Agreement (including this Section 6.4)
constitutes MNPI, the Debtors and the Required Equity Commitment Parties shall negotiate in good faith and mutually agree to a “cleansing” non-disclosure agreement to address such information.
During the Pre-Closing Period, (i) each of the Debtors, with respect to subsections (a)-(k) of this Section 6.5, agrees to, and agrees to cause each of its direct and indirect
subsidiaries to, (ii) each of the Equity Commitment Parties, with respect to subsections (a), (d), and (e) of this Section 6.5, and (iii) each 2016 Lender Equity Commitment Party, with respect to subsection (l)
of this Section 6.5 agrees to:
(a) support and take all steps reasonably necessary and desirable to consummate the Restructuring Transactions in accordance with this Agreement and the RSA (including the milestones therein);
(b) to the extent any legal or structural impediment arises that would prevent, hinder, impede, or delay the consummation of the Restructuring Transactions, take all steps reasonably necessary and desirable to
address any such impediment, and negotiate in good faith any appropriate additional or alternative provisions or agreements to address any such impediment;
(c) use commercially reasonable efforts to obtain any and all required governmental, regulatory, and/or third-party approvals for the Restructuring Transactions;
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(d) negotiate in good faith and use commercially reasonable efforts to take all steps reasonably necessary to (i) consummate the Restructuring Transactions and (ii) execute, as applicable, and implement this
Agreement and the other Definitive Documents;
(e) not file or seek authority to file any pleading inconsistent with this Agreement, the RSA (including the consent rights set forth therein), or the Restructuring Transactions;
(f) timely file a formal objection to any motion, application, or pleading filed with the Bankruptcy Court seeking the entry of an order for relief that: (i) is materially inconsistent with the RSA, this
Agreement, or any other Definitive Document; or (ii) would, or would be reasonably expected to, frustrate the purposes of the RSA, this Agreement, or any other Definitive Document, including by preventing the consummation of the Restructuring
Transactions;
(g) timely file a formal objection or opposition to any motion, application, or adversary proceeding or other action or proceeding asserting any Settled Litigation;
(h) oppose and object to any motion, application, adversary proceeding, or cause of action filed with the Bankruptcy Court by any party seeking the entry of an order (i) directing the appointment of a trustee or
examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; (iii) dismissing the Chapter 11 Cases; or (iv) modifying
or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;
(i) oppose any objections filed with the Bankruptcy Court to this Agreement, the Plan, any other Definitive Document, or the Restructuring Transactions;
(j) inform counsel to the Initial Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties within two (2) Business Days after becoming aware of (i) any matter or circumstance, that they
know or believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ii) a breach of this Agreement (including a breach by any Debtor); or (iii) any representation or statement made or deemed
to be made by any Debtor under this Agreement which is or proves to have been incorrect or misleading in any material respect when made or deemed to be made;
(k) upon reasonable request of any Equity Commitment Party, reasonably and promptly inform counsel to such party of: (i) the status and progress of the Restructuring Transactions contemplated by this Agreement,
including progress in relation to the negotiations of the Definitive Documents; and (ii) the status of obtaining any necessary authorizations (including any consents) from each Equity Commitment Party, any competent judicial body, governmental
authority, banking, taxation, supervisory, regulatory body, or any stock exchange; and
(l) take all actions necessary to make a Class 4 Equity Election on account of all of its Allowed OpCo Term Loan Claims; provided that if a 2016 Lender Equity Commitment Party acquires additional Allowed OpCo Term
Loan Claims from a transferor that did not make a Class 4 Equity Election (and was not required to make a Class 4 Equity Election), such 2016 Lender Equity Commitment Party shall not be required (and not doing so shall not be a breach of this
Agreement) to make a Class 4 Equity Election on account of such Allowed OpCo Term Loan Claims under this Agreement.
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Section 6.6 Additional Commitments
of the Debtors and the Equity Commitment Parties. During the Pre-Closing Period, (i) each of the Debtors, with respect to subsections (a)-(j) of this below Section 6.6, shall not, and shall cause each of its direct and indirect
subsidiaries to not, directly or indirectly, (ii) each of the Equity Commitment Parties, with respect to subsections (a) and (c)-(e) of this below Section 6.6, and (iii) each 2016 Lender Equity Commitment Party, with respect to subsection (k)
of this below Section 6.6 shall not:
(a) without the reasonable consent of the Parties, object to, delay, impede, or take any other action or inaction that is reasonably avoidable and would interfere with, delay, or impede the acceptance,
implementation, or consummation of this Agreement, the Plan or the Restructuring Transactions;
(b) take any action or inaction that is inconsistent in any material respect with, or is intended or could reasonably be expected to frustrate or impede approval, implementation, and consummation of the
Restructuring Transactions, the RSA, or this Agreement;
(c) file any motion or pleading, with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is inconsistent with this Agreement, the RSA (including
the consent rights set forth in Section 3 therein), or the Restructuring Transactions;
(d) execute or file any Definitive Document with the Bankruptcy Court (including any modifications or amendments thereto) that, in whole or in part, is inconsistent with this Agreement, the RSA (including the
consent rights set forth in Section 3 therein), or the Restructuring Transactions;
(e) take any other action or inaction in contravention of the RSA, this Agreement, or any other Definitive Document, or to the material detriment of the Restructuring Transactions;
(f) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Equity Commitment Parties, transfer any asset or right of any Debtor or any material asset or right used in the
business of the Debtors to any Entity outside the ordinary course of business;
(g) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Equity Commitment Parties, take any action or inaction that would cause a change to the tax status of any Debtor;
(h) without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Required Equity Commitment Parties, engage in any merger, consolidation, material disposition, material acquisition,
investment, dividend, incurrence of indebtedness, or other similar transaction outside of the ordinary course of business other than the Restructuring Transactions;
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(i) without the consent of the Required Equity Commitment Parties, make any material amendment, material modification, termination, material waiver, material supplement, material restatement, or other material
change to any Material Contract;
(j) without the consent of the Required Equity Commitment Parties, become a party to, establish, adopt, amend, or terminate any collective bargaining agreement or other agreement with a labor union, works council,
or similar organization; or
(k) directly or indirectly, or direct any other Entity to, (i) investigate, assert, prosecute, or support, directly or indirectly, including by filing any document in support of, propounding discovery in support
of, advocating to the Bankruptcy Court in favor of, or transferring material work product (whether in writing or orally) in furtherance of another’s support of, any Settled Litigation or any other litigation or objection inconsistent in any way with
the Consummation of the Plan; or (ii) seek payment from the Debtors or the Reorganized Debtors for any fees relating to any of the foregoing, other than as expressly permitted by this Agreement or the RSA.
Section 6.7 Cooperation and Support.(a) Without in any way limiting any other respective obligation of any Debtor or any Equity Commitment Party in this Agreement, each Party shall, consistent with the RSA, use commercially reasonable efforts to take or cause to be taken
all actions, and do or cause to be done all things, reasonably necessary, proper or advisable in order to consummate and make effective the transactions contemplated by this Agreement, the RSA, and the Plan.
(b) The Debtors shall provide draft copies of all material pleadings and documents that any Debtor intends to file with or submit to the Bankruptcy Court or any governmental authority
(including any regulatory authority), as applicable, and draft copies of all press releases that any Debtor intends to issue regarding this Agreement, the RSA, or the Restructuring Transactions, to counsel to the Initial Equity Commitment Parties and
counsel to the 2016 Lender Equity Commitment Parties at least two (2) Business Days prior to the date when such Debtor intends to file, submit or issue such document to the extent reasonably practicable, but in all events at least one (1) day prior to
such date. Counsel to the respective Parties shall consult in good faith regarding the form and substance of any such proposed filing with or submission to the Bankruptcy Court. Further, the Debtors shall reasonably consult with counsel to the Initial
Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties regarding any regulatory or other third-party approvals necessary to implement the Restructuring Transactions and share copies of any documents filed or submitted to any
regulatory or other governmental authority in connection with obtaining any regulatory or other third-party approvals.
(c) Nothing contained in this Section 6.7
shall limit the ability of any Equity Commitment Party to consult with any Debtor or any other party in interest in the Chapter 11 Cases, to appear and be heard, or to file objections, concerning any matter arising in the Chapter 11 Cases to the extent
not inconsistent with the RSA or this Agreement or any applicable confidentiality agreement, and such acts are not for the purpose of delaying, interfering, or impeding, directly or indirectly, the Restructuring Transactions.
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Section 6.9 Blue Sky. Following the Closing, Holdings shall
timely file a Form D with the SEC with respect to the Direct Allocation Shares and the Unsubscribed Shares issued hereunder to the extent required under Regulation D of the Securities Act and shall provide, upon request, a copy thereof to each Equity
Commitment Party. The Debtors shall, on or before the Closing Date, take such action as the Debtors shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Direct Allocation Shares and the Unsubscribed Shares
issued hereunder for sale to the Equity Commitment Parties at the Closing Date pursuant to this Agreement under applicable securities and “Blue Sky” Laws of the states of the United States (or to obtain an exemption from such qualification) and any
applicable foreign jurisdictions, and shall provide evidence of any such action so taken to the Equity Commitment Parties on or prior to the Closing Date. The Debtors shall timely make all filings and reports relating to the offer and sale of the
Direct Allocation Shares and the Unsubscribed Shares issued hereunder required under applicable securities and “Blue Sky” Laws of the states of the United States following the Closing Date. The Debtors shall pay all fees and expenses in connection with
satisfying its obligations under this Section 6.9.
Section 6.10 No Integration; No General Solicitation. Neither the Debtors nor any of
their affiliates (as defined in Rule 501(b) of Regulation D promulgated under the Securities Act) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the
Securities Act) that is or will be integrated with the sale of the Unsubscribed Shares and New Common Stock in a manner that would require registration of the Unsubscribed Shares and New Common Stock to be issued by Holdings on the Effective Date under
the Securities Act. No Debtor or any of its affiliates or any other Person acting on its or its behalf will solicit offers for, or offer or sell, any Direct Allocation Shares or Unsubscribed Shares by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D promulgated under the Securities Act or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.
Section 6.12 Use of Proceeds. Holdings will apply the proceeds from the exercise of the
Subscription Rights and the sale of the Unsubscribed Shares for the purposes identified in the Plan and the Confirmation Order.
Section 6.13 Share Legend. Each certificate evidencing all
Direct Allocation Shares and Unsubscribed Shares that are issued in connection with this Agreement shall be stamped or otherwise imprinted with a legend (the “Legend”) in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN AVAILABLE EXEMPTION FROM REGISTRATION THEREUNDER.”
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In the event that any such Direct Allocation Shares or Unsubscribed Shares are uncertificated, such Direct Allocation Shares or Unsubscribed Shares shall be subject to a restrictive notation
substantially similar to the Legend in the stock ledger or other appropriate records maintained by Holdings or its transfer agent and the term “Legend” shall include such restrictive notation.
Holdings shall remove the Legend (or restrictive notation, as applicable) set forth above from the certificates evidencing any such shares (or the stock ledger or other appropriate records, in the case
of uncertified shares) at any time after the restrictions described in such Legend cease to be applicable, including, as applicable, when such shares may be sold under Rule 144 of the Securities Act without volume or manner of sale restrictions.
Holdings may reasonably request such opinions, certificates or other evidence that such restrictions or conditions no longer apply as a condition to removing the Legend. For the avoidance of doubt, none of the Subscription Shares or New Common Stock
issued in satisfaction of the Backstop Commitment Premium shall include the Legend.
Section 6.14 Antitrust Approval.
(a) Each Party agrees to use best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to consummate and make effective the transactions contemplated
by this Agreement, the Plan and the other Definitive Documents, including (i) if applicable, filing, or causing to be filed, the Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement with
the Antitrust Division of the United States Department of Justice and the United States Federal Trade Commission and any filings (or, if required by any Antitrust Authority, any drafts thereof) under any other Antitrust Laws that are necessary to
consummate and make effective the transactions contemplated by this Agreement as soon as reasonably practicable (and with respect to any filings required pursuant to the HSR Act, no later than fifteen (15) Business Days following the later of (x) the
date hereof or (y) a date reasonably determined by the Required Equity Commitment Parties (not to be later than twenty-five (25) Business Days following the date hereof)) and (ii) promptly furnishing documents or information reasonably requested by any
Antitrust Authority and supplying to any Governmental Authority as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Unit and taking, or causing to be taken, all other
actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement. The Debtors agree to pay all fees of a Governmental Authority incurred by any
Party in connection with the filings and other actions contemplated by this Section 6.14.
Each Equity Commitment Party, including its Affiliates, and its direct and indirect subsidiaries, agrees to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all
undertakings necessary to resolve such objections, if any, that a Governmental Authority or Antitrust Authority may assert under any Antitrust Law with respect to any transaction contemplated by this Agreement, the Plan or the other Definitive
Documents, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or Antitrust Authority with respect to any transaction contemplated by this Agreement, the Plan or the other
Definitive Documents, in each case, so as to enable the Closing to occur as promptly as practicable, including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale,
divestiture or disposition of any businesses, assets, equity interests, product lines or properties of any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), or any equity interest in any joint venture held
any by any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of any Equity Commitment Party (including its
Affiliates, and its direct and indirect subsidiaries), and (z) otherwise taking or committing to take any action that would limit any Equity Commitment Party’s (including its Affiliates’, and its direct and indirect subsidiaries’) freedom of action
with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries) or any
equity interest in any joint venture held by any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), in each case as may be required in order to obtain all approvals, consents, clearances, expirations or
terminations of waiting periods, registrations, permits, authorizations and other confirmations required directly or indirectly under any Antitrust Law or to avoid the commencement of any action to prohibit any transaction contemplated by this
Agreement, the Plan or the other Definitive Documents under any Antitrust Law, or, in the alternative, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any action or proceeding
seeking to prohibit any transaction contemplated by this Agreement, the Plan or the other Definitive Documents or delay the Closing.
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The Debtors and each Equity Commitment Party subject to an obligation pursuant to the Antitrust Laws, if applicable, to notify any transaction contemplated by this Agreement, the Plan or the other
Definitive Documents that has notified the Debtors in writing of such obligation (each such Equity Commitment Party, a “Filing Party”) agree to reasonably cooperate with each other as to the appropriate
time of filing such notification and its content. Where applicable in connection with this Agreement, the Debtors and each Filing Party shall, to the extent permitted by applicable Law: (A) promptly notify each other of, and if in writing, furnish each
other with copies of (or, in the case of material oral communications, advise each other orally of) any communications from or with an Antitrust Authority; (B) not participate in any meeting with an Antitrust Authority unless it consults with each
other Filing Party and the Debtors, as applicable, in advance and, to the extent permitted by the Antitrust Authority and applicable Law, give each other Filing Party and the Debtors, as applicable, a reasonable opportunity to attend and participate
thereat; (C) furnish each other Filing Party and the Debtors, as applicable, with copies of all correspondence and communications between such Filing Party or the Debtors and the Antitrust Authority; (D) furnish each other Filing Party with such
necessary information and reasonable assistance as may be reasonably necessary in connection with the preparation of necessary filings or submission of information to the Antitrust Authority; and (E) not withdraw its filing, if any, under the HSR Act
without the prior written consent of the Required Equity Commitment Parties and the Debtors. Any such disclosures, rights to participate or provisions of information by one party to the other parties may be made on a counsel-only basis to the extent
required under applicable Law or as appropriate to protect confidential business information, and any materials provided pursuant to this Section 6.14 may be redacted (i) to remove references concerning valuation; (ii) to the extent necessary
to comply with contractual arrangements; and (iii) to the extent necessary to address reasonable privilege and confidentiality concerns.
(b) Should a Filing Party be subject to an obligation under the Antitrust Laws to jointly notify with one or more other Filing Parties (each, a “Joint Filing
Party”) any transaction contemplated by this Agreement, the Plan or the other Definitive Documents, such Joint Filing Party shall promptly notify each other Joint Filing Party of, and if in writing, furnish each other Joint Filing Party
with copies of (or, in the case of material oral communications, advise each other Joint Filing Party orally of) any communications from or with an Antitrust Authority.
(c) The Debtors and each Filing Party shall use their best efforts to obtain all authorizations, approvals, consents, or clearances under any applicable Antitrust Laws or to cause the
termination or expiration of all applicable waiting periods under any Antitrust Laws in connection with the transactions contemplated by this Agreement at the earliest possible date after the date of filing. The communications contemplated by this Section
6.14 may be made by the Debtors or a Filing Party on an outside counsel-only basis or subject to other agreed upon confidentiality safeguards.
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Section 6.15 Equity Rights Offering. The Debtors shall effectuate the Equity Rights Offering in accordance with the Plan and the Equity Rights Offering Procedures in all material
respects.
ARTICLE VII
ADDITIONAL PROVISIONS REGARDING FIDUCIARY OBLIGATIONS
Section 7.1 Fiduciary Out. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require any Debtor or the board of directors, board of managers,
or similar governing body of any Debtor (the aforementioned parties collectively as to the Debtors, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from
taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, including based on the
results of the Independent Investigation; provided that counsel to the Debtors shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to the Initial Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties following a determination made in accordance with this Section 7.1
to take or not take action, in each case in a manner that would result in a breach of this Agreement. This Section 7.1 shall not be deemed to amend, supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this
Agreement pursuant to Article X or Section 7.1 of this Agreement that may arise as a result of any such action or inaction.
Section 7.2 Alternative Transactions. From the date of this Agreement until the Closing Date, (i) each Debtor and its respective board of directors (or committees thereof, but not any
individual director), officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives, each acting in their capacity as such, shall have the right, consistent with their fiduciary duties, to continue
to conclusion any ongoing discussions with interested parties and to respond to any inbound indications of interest, but will no longer solicit Alternative Restructuring Proposals (or inquiries or indications of interest with respect thereto); and (ii)
if any Debtor or the board of directors of any of the Debtors determines, in the exercise of its fiduciary duties, to accept or pursue an Alternative Restructuring Proposal, including by making any written or oral proposal or counterproposal with
respect thereto, the Debtors shall notify (with email being sufficient) counsel to the Initial Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties within two (2) Business Days following such determination and/or proposal
or counterproposal (with respect to a notice in respect of an Alternative Restructuring Proposal, an “Alternative Restructuring Counterproposal Notice”). Upon receipt of such Alternative Restructuring
Counterproposal Notice, the Required Equity Commitment Parties shall have the right to terminate this Agreement; provided that any such notice terminating this Agreement pursuant to Section 7.2 must
notify the Debtors that the Required Equity Commitment Parties do not support the applicable Alternative Restructuring Proposal and would intend to credit bid their 2020 Term B-2 Loan Claims and Opco Term Loan Claims, if any, as an alternative to such
Alternative Restructuring Proposal. The Debtors’ advisors shall provide the Initial Equity Commitment Parties Advisors and any other party determined by the Debtors, with (x) regular updates as to the status and progress of any Alternative
Restructuring Proposals and (y) reasonable responses to any reasonable information requests related to any Alternative Restructuring Proposals or the Debtors’ actions taken pursuant to this Section 7.2. Nothing in this Agreement shall impair or
waive the rights of any Debtor to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, or (b) prevent any Debtor from enforcing this Agreement or contesting whether any matter, fact, or thing
is a breach of, or is inconsistent with, this Agreement.
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ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
Section 8.1 Conditions to the Obligations of the Equity Commitment Parties. The obligations of each Equity Commitment Party to consummate the transactions contemplated hereby shall be
subject to (unless waived by the Required Equity Commitment Parties) the satisfaction of the following conditions prior to or at the Closing:
(a) Orders. The Bankruptcy Court shall have entered the Backstop Order, Disclosure Statement Order, and Confirmation Order, in each case, in form and substance acceptable to the
Required Equity Commitment Parties and consistent in all material respects with the RSA and the Definitive Documents; each such Order shall be a Final Order; such Order shall be in full force and effect, and not subject to a stay.
(b) Plan. Each Debtor shall have complied, in all material respects, with the terms of the Plan that are to be performed by each Debtor on or prior to the Effective Date and the
conditions to the occurrence of the Effective Date (other than any conditions relating to the occurrence of the Closing) set forth in the Plan shall have been satisfied or, with the prior consent of the Required Consenting BrandCo Lenders, waived in
accordance with the terms of the Plan.
(c) Equity Rights Offering. The Equity Rights Offering shall have been conducted, in all respects, in accordance with the Backstop Order, the Equity Rights Offering Procedures and this
Agreement, and the Equity Rights Offering Expiration Time shall have occurred.
(d) Effective Date. The Effective Date shall have occurred, or shall be deemed to have occurred concurrently with the Closing, in accordance with the terms and conditions in the Plan
and in the Confirmation Order.
(e) Registration Rights Agreement; New Organizational Documents.
(i) If applicable, a registration rights agreement shall have terms that are customary for a transaction of this nature and shall be in form and substance reasonably
acceptable to the Required Equity Commitment Parties and the Debtors (the “Registration Rights Agreement”). The Registration Rights Agreement, if applicable, shall have been executed and delivered by
Holdings, shall otherwise have become effective with respect to the Equity Commitment Parties and the other parties thereto, and shall be in full force and effect.
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(ii) The New Organizational Documents, in the form and substance acceptable to the Debtors and the Required Equity Commitment Parties, shall have been duly approved and
adopted and shall be in full force and effect.
(f) Expense Reimbursement. The Debtors shall have paid (or such amounts shall be paid concurrently with the Closing) all Expense Reimbursement invoiced through the Closing Date
pursuant to Section 3.3.
(g) Consents. All governmental and third-party notifications, filings, consents, waivers and approvals required for the consummation of the transactions contemplated by this Agreement
and the Plan shall have been made or received.
(h) Antitrust Approvals. All waiting periods imposed by any Governmental Authority or Antitrust Authority in connection with the transactions contemplated by this Agreement shall have
terminated or expired and all authorizations, approvals, consents or clearances under the Antitrust Laws in connection with the transactions contemplated by this Agreement shall have been obtained.
(i) No Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the
transactions contemplated by this Agreement.
(j) Representations and Warranties.
(i) The representations and warranties of the Debtors contained in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.26, 4.27, 4.28,
and 4.31 shall be true and correct in all respects on and as of the Closing Date after giving effect to the Plan with the same effect as if made on and as of the Closing Date after giving effect to the Plan (except for such representations and
warranties made as of a specified date, which shall be true and correct only as of the specified date).
(ii) The representations and warranties of the Debtors contained in Sections 4.14, 4.19, and 4.25 shall be true and correct in all material
respects on and as of the Closing Date, or will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of the Closing Date after giving effect to the Plan (except for such representations
and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified date).
(iii) The representations and warranties of the Debtors contained in this Agreement other than those referred to in clauses (i) and (ii) above shall be true and
correct (disregarding all materiality or Material Adverse Effect qualifiers) on and as of the Closing Date after giving effect to the Plan with the same effect as if made on and as of the Closing Date or will be true and correct in all material
respects on and as of the Closing Date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of the specified date), except where the failure to be so true and correct does not constitute,
individually or in the aggregate, a Material Adverse Effect.
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(k) Covenants. The Debtors shall have performed and complied, in all material respects, with all of their respective covenants and agreements contained in this Agreement that
contemplate, by their terms, performance or compliance prior to the Closing Date.
(l) Material Adverse Effect. Since September 30, 2022, except for the Chapter 11 Cases and any adversary proceedings or contested motions in connection therewith, including the
Adversary Proceeding, there shall not have occurred, and there shall not exist, any event, development, occurrence or change that constitutes, individually or in the aggregate, a Material Adverse Effect.
(m) Officer’s Certificate. The Equity Commitment Parties shall have received on and as of the Closing Date a certificate of the chief executive officer or chief financial officer of
Holdings confirming that the conditions set forth in Sections 8.1(j), (k), and (l) have been satisfied.
(n) Exit Facilities. The Exit Facilities shall be in effect with the terms set forth in the First Amended Plan, as in effect on the date hereof.
(o) RSA. The RSA shall not have terminated, and no Breach Notice shall have been given under the RSA in accordance with the terms thereof.
(p) Backstop Commitment Premium. The Debtors shall have paid (or such amounts shall be paid concurrently with the Closing) to each Equity Commitment Party its Backstop Commitment
Premium Share Amount as set forth in Section 3.2.
(q) Funding Notice. The Equity Commitment Parties shall have received the Funding Notice in accordance with the terms of this Agreement.
Section 8.2 Certificate of Incorporation. Upon the Closing, the rights, preferences and privileges of the New Common Stock will be as stated in the Certificate of Incorporation in
accordance with the Plan and as provided by law.
Section 8.3 Waiver of Conditions to Obligations of Equity Commitment Parties. All or any of the conditions set forth in Sections 8.1 may only be waived in whole or in part with respect to all Equity Commitment Parties by a written instrument (with email being sufficient) executed by the Required Equity Commitment Parties in their sole
discretion and if so waived, all Equity Commitment Parties shall be bound by such waiver.
Section 8.4 Conditions to the Obligations of the Debtors. The obligations of the Debtors to consummate the transactions contemplated hereby with any Equity Commitment Party is subject
to (unless waived by the Debtors by a written instrument (with email being sufficient)) the satisfaction of each of the following conditions:
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(a) Orders. The Bankruptcy Court shall have entered the Backstop Order, Disclosure Statement Order, and Confirmation Order, in each case, in form and substance acceptable to the Debtors
and consistent in all material respects with the RSA and the Definitive Documents; each such Order shall be a Final Order; such Order shall be in full force and effect, and not subject to a stay.
(b) Effective Date. The Effective Date shall have occurred, or shall be deemed to have occurred concurrently with the Closing, in accordance with the terms and conditions in the Plan
and in the Confirmation Order.
(c) Equity Rights Offering. The Equity Rights Offering Expiration Time shall have occurred, and the Debtors shall have received the Aggregate Rights Offering Amount (or the Adjusted
Aggregated Rights Offering Amount, if applicable) in full in Cash pursuant to the Equity Rights Offering or this Agreement.
(d) Antitrust Approvals. All waiting periods imposed by any Governmental Authority or Antitrust Authority in connection with the transactions contemplated by this Agreement shall have
terminated or expired and all authorizations, approvals, consents or clearances under the Antitrust Laws in connection with the transactions contemplated by this Agreement shall have been obtained.
(e) No Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the
transactions contemplated by this Agreement.
(f) Representations and Warranties. The representations and warranties of the Equity Commitment Parties contained in this Agreement shall be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on and as of the Closing Date (except for such representations and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified
date).
(g) Consents. All governmental and third-party notifications, filings, consents, waivers and approvals required for the consummation of the transactions contemplated by this Agreement
and the Plan shall have been made or received.
(h) Covenants. The Equity Commitment Parties shall have performed and complied, in all material respects, with all of their respective covenants and agreements contained in this
Agreement that contemplate, by their terms, performance or compliance prior to the Closing Date.
(i) Exit Facilities. The Exit Facilities shall be in effect with the terms set forth in the First Amended Plan, as in effect on the date hereof.
(j) RSA. The RSA shall not have terminated, and no Breach Notice shall have been given under the RSA in accordance with the terms thereof.
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ARTICLE IX
INDEMNIFICATION AND CONTRIBUTION
Section 9.1 Indemnification Obligations. Following the entry of the Backstop Order, but effective as of the date hereof, the Debtors (the “Indemnifying
Parties,” and each, an “Indemnifying Party”) shall, jointly and severally, indemnify and hold harmless each Equity Commitment Party and its Affiliates, equity holders, members, partners,
general partners, managers and its and their respective Representatives and controlling persons (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and costs
and expenses (other than Taxes of the Equity Commitment Parties except to the extent otherwise provided for in this Agreement) (collectively, “Losses”) that any such Indemnified Person may incur or to
which any such Indemnified Person may become subject arising out of or in connection with this Agreement, the Plan, and the transactions contemplated hereby and thereby, including the Backstop Commitment, the Equity Rights Offering, the Expense
Reimbursement, the payment of the Backstop Commitment Premium or the Backstop Commitment Termination Premium or the use of the proceeds of the Equity Rights Offering, or any claim, challenge, litigation, investigation or proceeding relating to any of
the foregoing, regardless of whether any Indemnified Person is a party thereto, whether or not such proceedings are brought by the Debtors, the Reorganized Debtors, their respective equity holders, Affiliates, creditors or any other Person, and
reimburse each Indemnified Person upon demand for reasonable documented out-of-pocket (with such documentation subject to redaction to preserve attorney client and work product privileges) legal or other third-party expenses incurred in connection with
investigating, preparing to defend or defending, or 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 obligations set forth herein), irrespective of whether or not the transactions contemplated by this Agreement or the Plan are consummated or whether or not this Agreement is terminated; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to Losses (a) as to a Defaulting Equity Commitment Party or its Related Parties, or (b) to the extent they are found by a final,
non-appealable judgment of a court of competent jurisdiction to arise from the willful misconduct, bad faith or gross negligence of such Indemnified Person. The Indemnified Persons are express third-party beneficiaries of this Article IX.
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Section 9.2 Indemnification Procedure. Promptly after receipt by an Indemnified Person of notice of the commencement of any claim, challenge, litigation, investigation or proceeding
(an “Indemnified Claim”), such Indemnified Person will, if a claim is to be made hereunder against the Indemnifying Party in respect thereof, notify the Indemnifying Party in writing of the commencement
thereof; provided that (a) the omission to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have hereunder except to the extent it has been materially
prejudiced by such failure and (b) the omission to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have to such Indemnified Person otherwise than on account of this Agreement. In case any such
Indemnified Claims are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein, and, at its election by providing written notice to such
Indemnified Person, the Indemnifying Party will be entitled to assume the defense thereof or participation therein, with counsel reasonably acceptable to such Indemnified Person; provided further, that if the parties (including any impleaded parties) to any such Indemnified Claims include both such Indemnified Person and the Indemnifying Party and based on advice of such Indemnified Person’s counsel
there are legal defenses available to such Indemnified Person that are different from or additional to those available to the Indemnifying Party, such Indemnified Person shall have the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such Indemnified Claims. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election to so assume the defense of such Indemnified Claims with counsel reasonably acceptable to
the Indemnified Person, the Indemnifying Party shall not be liable to such Indemnified Person for expenses incurred by such Indemnified Person in connection with the defense thereof or participation therein (other than reasonable documented
out-of-pocket costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel (in addition to any local counsel) in connection with the assertion of legal defenses in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel representing the Indemnified Persons who are parties to such Indemnified Claims (in addition to one
local counsel in each jurisdiction in which local counsel is required)), (ii) the Indemnifying Party shall not have employed counsel reasonably acceptable to such Indemnified Person to represent such Indemnified Person within a reasonable time after
the Indemnifying Party has received notice of commencement of the Indemnified Claims from, or delivered on behalf of, the Indemnified Person, (iii) after the Indemnifying Party assumes the defense of the Indemnified Claims, the Indemnified Person
determines in good faith that the Indemnifying Party has failed or is failing to defend such claim and provides written notice of such determination, and such failure is not reasonably cured within ten (10) Business Days following receipt of such
notice by the Indemnifying Party, or (iv) the Indemnifying Party shall have authorized in writing the employment of counsel for such Indemnified Person.
Section 9.3 Settlement of Indemnified Claims. The Indemnifying Party shall not be liable for any settlement of any Indemnified Claims effected by such Indemnified Person without the
written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If any settlement of any Indemnified Claims is consummated with the written consent of the Indemnifying Party or if there is a final
judgment for the plaintiff in any such Indemnified Claims, the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Person from and against any and all Losses by reason of such settlement or judgment to the extent such Losses are
otherwise subject to indemnification by the Indemnifying Party hereunder in accordance with, and subject to the limitations of, this Article IX. Notwithstanding anything in this Article IX to the contrary, if at any time an Indemnified
Person shall have requested the Indemnifying Party to reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Indemnified Claims as contemplated by this Article IX, the
Indemnifying Party shall be liable for any settlement of any Indemnified Claims effected without its written consent if (a) such settlement is entered into more than thirty (30) days after receipt by the Indemnifying Party of such request for
reimbursement and (b) the Indemnifying Party shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. The Indemnifying Party shall not, without the prior written consent of an Indemnified
Person (which consent shall be granted or withheld, conditioned or delayed in the Indemnified Person’s sole discretion), effect any settlement of any pending or threatened Indemnified Claims in respect of which indemnity or contribution has been sought
hereunder by such Indemnified Person unless (i) such settlement includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on the claims that are the subject matter of
such Indemnified Claims and (ii) such settlement does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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Section 9.4 Contribution. If for any reason the foregoing indemnification is unavailable to any Indemnified Person or insufficient to hold it harmless from Losses that are subject to
indemnification pursuant to Section 9.1, then the Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Person as a result of such Loss in such proportion as is appropriate to reflect not only the relative
benefits received by the Indemnifying Party, on the one hand, and such Indemnified Person, on the other hand, but also the relative fault of the Indemnifying Party, on the one hand, and such Indemnified Person, on the other hand, as well as any
relevant equitable considerations. It is hereby agreed that the relative benefits to the Indemnifying Party, on the one hand, and all Indemnified Persons, on the other hand, shall be deemed to be in the same proportion as (a) the total value received
or proposed to be received by Holdings pursuant to the issuance and sale of the Rights Offering Shares in the Equity Rights Offering contemplated by this Agreement and the Plan bears to (b) the Backstop Commitment Premium paid or proposed to be paid to
the Equity Commitment Parties. Subject to Section 10.6, the Indemnifying Parties also agree that no Indemnified Person shall have any liability based on their comparative or contributory negligence or otherwise to the Indemnifying Parties, any
Person asserting claims on behalf of or in right of any of the Indemnifying Parties, or any other Person in connection with an Indemnified Claim.
Section 9.5 Treatment of Indemnification Payments. All amounts paid by an Indemnifying Party to an Indemnified Person under this Article IX shall, to the extent permitted by
applicable Law, be treated for all Tax purposes as adjustments to the Backstop Commitment Premium or the Backstop Commitment Termination Premium of such Indemnified Person, as the case may be, or, to the extent arising after the Closing Date, the
Purchase Price of the Rights Offering Shares subscribed for by such Indemnified Person in the Equity Rights Offering, or the Unsubscribed Shares purchased by such Indemnified Person, as applicable. The provisions of this Article IX are an
integral part of the transactions contemplated by this Agreement and without these provisions the Equity Commitment Parties would not have entered into this Agreement. The obligations of the Debtors under this Article IX shall constitute
allowed administrative expenses of the Debtors’ estate under Sections 503(b) and 507 of the Bankruptcy Code and are payable without further Order of the Bankruptcy Court, and that the Debtors may comply with the requirements of this Article IX
without further Order of the Bankruptcy Court.
Section 9.6 No Survival. All representations, warranties, covenants and agreements made in this Agreement shall not survive the Closing Date except for covenants and agreements that by
their express terms are to be satisfied after the Closing Date, which covenants and agreements shall survive until satisfied in accordance with their terms. Notwithstanding the foregoing, the indemnification and other obligations of each of the Debtors
pursuant to this Article IX and the other obligations set forth in Section 10.6 shall survive the Closing Date until the latest date permitted by applicable Law and, if applicable, be assumed by each of the Reorganized Debtors.
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ARTICLE X
TERMINATION
Section 10.1 Consensual Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing Date by mutual written
consent of the Debtors and the Required Equity Commitment Parties.
Section 10.2 [Reserved].
Section 10.3 Termination by the Debtors. This Agreement may be terminated by the Debtors upon written notice to each Equity Commitment Party upon the occurrence of any of the following
Events, subject to the rights of the Debtors to fully and conditionally waive, in writing, on a prospective or retroactive basis the occurrence of such Event:
(a) the termination of the RSA as to the Debtors in accordance with its terms;
(b) the occurrence of any Debtor Termination Event set forth in Section 13.04 of the RSA, other than in the case of (x) Section 13.04(c) of the RSA with respect to acts or omissions of the
Creditors’ Committee or the Consenting 2016 Lenders or (y) Section 13.04(f) of the RSA;
(c) the Bankruptcy Court denies entry of the Backstop Order or any Order approving this Agreement;
(d) subject to the right of the Required Equity Commitment Parties to arrange an Equity Commitment Party Replacement in accordance with Section 2.3(a) (which will be deemed to cure any
breach by the replaced Equity Commitment Party pursuant to this Section 10.3(d)), (i) any Equity Commitment Party shall have (x) breached any representation, warranty, covenant or other agreement made by such Equity Commitment Party in this
Agreement or any such representation or warranty shall have become inaccurate and such breach or inaccuracy would or would reasonably be expected to, individually or in the aggregate, cause a condition set forth in Section 8.4(f) or Section
8.4(h) not to be satisfied or (y) materially breached or ceased to be a party to the RSA, (ii) the Debtors shall have delivered written notice of such breach or inaccuracy to such Equity Commitment Party, and (iii) such breach or inaccuracy is
not cured by such Equity Commitment Party by the earlier of the tenth (10th) Business Day after receipt of such notice and the third (3rd) Business Day prior to the Outside Date; provided that the Debtors shall not have the right to terminate this Agreement pursuant to this Section
10.3(d) if they are then in willful or intentional breach of this Agreement; provided further, that this Agreement shall continue in full force and effect with
respect to the Debtors and the non-breaching Equity Commitment Parties. For purposes of this Agreement, “willful or intentional breach” means a breach of this Agreement that is a consequence of an act
undertaken by the breaching party with the knowledge that the taking of such act would, or would reasonably be expected to, cause a breach of this Agreement;
(e) the Backstop Order or the Confirmation Order is reversed, dismissed, vacated, or reconsidered;
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(f) the Closing Date has not occurred by 11:59 p.m., New York City time on April 18, 2023, unless prior thereto the Effective Date occurs and the Rights Offering has been consummated; provided that the Debtors shall not have the right to terminate this Agreement pursuant to this Section 10.3(f) if they are then in willful or intentional breach of this Agreement;
(g) if Holdings shall not receive the Aggregate Rights Offering Amount (or the Adjusted Aggregate Rights Offering Amount, if applicable) pursuant to the Equity Rights Offering and this
Agreement (subject to the right of the Required Equity Commitment Parties to arrange an Equity Commitment Party Replacement in accordance with Section 2.3(a)); provided that any termination pursuant to
this Section 10.3(g) shall not relieve or otherwise limit the liability of any Defaulting Equity Commitment Party hereto for any breach or violation of its obligations under this Agreement or any documents or instruments delivered in connection
herewith; or
(h) any applicable Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the Equity Rights
Offering or the transactions contemplated by this Agreement or the other Definitive Documents; provided that this termination right may not be exercised by any Party that sought or requested such ruling or
order in contravention of any obligation set out in this Agreement.
Section 10.4 Termination by the Required Equity Commitment Parties. This Agreement may be terminated by the Required Equity Commitment Parties upon written notice to the Debtors if:
(a) the RSA has been terminated as to the Debtors in accordance with its terms;
(b) the occurrence of any Consenting BrandCo Lender Termination Event set forth in Section 13.01 of the RSA (as in effect as of the date hereof, without reference to any modifications,
amendments or supplements to such RSA), which termination events are hereby incorporated by reference herein, other than in the case of Section 13.01(a), (e), (g), (k), (n), or (o) of the RSA with respect to acts or omissions of the Consenting 2016
Lenders or the Creditors’ Committee; provided that the consent rights referenced in such termination events shall instead refer to the consent of the Required Equity Commitment Parties and be consistent with
the consent rights set forth in Section 6.2 herein;
(c) (i) the Bankruptcy Court has not entered or denies entry of the Backstop Order on or prior to February 22, 2023; or (ii) the Bankruptcy Court has not entered the Confirmation Order on or
prior to April 4, 2023;
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(d) the Backstop Order or the Confirmation Order is reversed, dismissed, vacated, reconsidered or is modified or amended in any material respect after entry without the prior written consent of
the Required Equity Commitment Parties; provided that this termination right may not be exercised by any Party that sought or requested such reversal, dismissal, vacation, reconsideration, modification or
amendment;
(e) the Closing Date has not occurred by 11:59 p.m., New York City time on April 18, 2023 (as it may be extended pursuant to this Section 10.4(e) or Section 2.3(a), the “Outside Date”), provided that the Outside Date may be waived or extended with the prior written consent of the Required Equity Commitment Parties up to the Final
Outside Date, and the Final Outside Date may be waived or extended only with the prior written consent of each Equity Commitment Party (excluding any Defaulting Equity Commitment Party);
(f) (i) Holdings or any Debtor shall have breached any representation, warranty, covenant or other agreement made by Holdings or the other Debtors in this Agreement or any such representation
or warranty shall have become inaccurate and such breach or inaccuracy would, individually or in the aggregate, cause a condition set forth in Sections 8.1(j), 8.1(k) or 8.1(l) not to be satisfied, (ii) any Equity Commitment
Party shall have delivered written notice of such breach or inaccuracy to the Debtors, and (iii) if such breach or inaccuracy is capable of being cured, such breach or inaccuracy is not cured by Holdings or the other Debtors by the earlier of (x) the
tenth (10th) Business Day after receipt of such notice, and (y) the third (3rd) Business
Day prior to the Outside Date; provided that this Agreement may not be terminated pursuant to this Section 10.4(f) if the Required Equity Commitment Parties are then in willful or intentional breach of
this Agreement;
(g) since September 30, 2022, there shall have occurred any event, development, occurrence or change that, individually, or together with all other Events, has had or would reasonably be
expected to have a Material Adverse Effect; or
(h) any applicable Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the Equity Rights
Offering or the transactions contemplated by this Agreement or the other Definitive Documents; provided that this termination right may not be exercised by any Party that sought or requested such ruling or
order in contravention of any obligation set out in this Agreement.
Section 10.5 Termination by the 2016 Lender Equity Commitment Parties; Termination by Equity Commitment Parties.
(a) This Agreement may be terminated as to a 2016 Lender Equity Commitment Party upon written notice by (x) such 2016 Lender Equity Commitment Party to the Debtors and the BrandCo Lender Equity
Commitment Parties, (y) the Required Equity Commitment Parties to the Debtors, the BrandCo Lender Equity Commitment Parties and such 2016 Lender Equity Commitment Party, or (z) the Debtors to the BrandCo Lender Equity Commitment Parties and such 2016
Lender Equity Commitment Party, in each case within one (1) day of the termination of the RSA as to such 2016 Lender Equity Commitment Party.
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(b) This Agreement may be terminated by any Equity Commitment Party, with regard to itself only, by written notice to the Debtors and the other Equity Commitment Parties if the Closing does
not occur by the Final Outside Date. If this Agreement is terminated with respect to a 2016 Lender Equity Commitment Party, such 2016 Lender Equity Commitment Party will be treated as a Defaulting Equity Commitment Party pursuant to Section 2.3(c) of
this Agreement.
Section 10.6 Effect of Termination. (a) Upon termination of this Agreement pursuant to this Article X, this Agreement shall forthwith become void and of no force or effect and
there shall be no further obligations or liabilities on the part of the Parties; provided that (i) subject to Section 2.3(b), the obligations of the Debtors to pay the Expense Reimbursement pursuant to
Article III, to satisfy their indemnification obligations pursuant to Article IX, and to pay the Backstop Commitment Termination Premium pursuant to Section 3.2 (and subject to Section 9.6) shall survive the termination
of this Agreement and shall remain in full force and effect, in each case, until such obligations have been satisfied, and (ii) this Section 10.6 and Article XI shall survive the termination of this Agreement in accordance with their
terms.
(b) Notwithstanding anything to the contrary contained herein, if this Agreement is terminated pursuant to
(i) Section 7.1 or Section 7.2;
(ii) Section 10.3(a) (other than a termination pursuant to (x) Section 13.04(c), (d) or (e) of the RSA; provided that (x)
Section 13.04(b) shall also be excluded if such termination or termination right occurs as a result of any action by a BrandCo Lender Equity Commitment Party or a failure of a BrandCo Lender Equity Commitment Party to take actions required by the RSA
or this Agreement and (y) Section 13.04(g) shall also be excluded if such termination or termination right occurs as a result of the failure of the Required Consenting BrandCo Lenders to negotiate the terms and conditions of the Global Bonus Program
(as defined in the RSA) in good faith) (collectively, the “Specified Debtor RSA Termination Rights”), or (y) Section 13.01(b), (j) (unless such termination or termination right arose as a result of an
event of default under the DIP Credit Agreement that has occurred and been declared by the Required Lenders (as defined therein)), or (l) of the RSA; provided that a termination or termination right arising
under Section 13.01(d) or (g) shall also be excluded if such termination or termination right occurs as a result of any action by a BrandCo Lender Equity Commitment Party or a failure of a BrandCo Lender Equity Commitment Party to take actions required
by the RSA or this Agreement (collectively, the “Specified Lender RSA Termination Rights” and, together with the Specified Debtor Termination Rights, the “Specified RSA
Termination Rights”);
(iii) Section 10.3(b) (other than a termination of this Agreement pursuant to the occurrence of a Specified Debtor RSA Termination Right);
(iv) Section 10.3(e); provided that a termination arising under Section 10.3(e) shall be excluded if such termination
occurs as a result of any action by a BrandCo Lender Equity Commitment Party or a failure of a BrandCo Lender Equity Commitment Party to take actions required by the RSA or this Agreement;
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(v) Section 10.3(f); provided that the Required Equity Commitment Parties have extended or have stated in writing that they
are willing to extend the Outside Date beyond such date;
(vi) [Reserved];
(vii) Section 10.4(a) (other than a termination pursuant to a Specified RSA Termination Right or a termination resulting from the a breach of the RSA by any of the
parties constituting the Required Equity Commitment Parties);
(viii) Section 10.4(b) (other than a termination of this Agreement pursuant to the occurrence of a Specified Lender RSA Termination Right);
(ix) Section 10.4(d); provided that a termination arising under Section 10.4(d) shall be excluded if such termination
occurs as a result of any action by an Equity Commitment Party or a failure of an Equity Commitment Party to take actions required by the RSA or this Agreement;
(x) Section 10.4(e) (so long as prior to such termination, the Outside Date has been extended beyond April 18, 2023 for a period of time reasonably acceptable to each
of the Debtors and the Required Equity Commitment Parties (it being agreed that June 18, 2023 shall be an acceptable date to the Debtors)); or
(xi) Section 10.4(f); provided that a termination arising under Section 10.4(f) from a failure to satisfy the
condition set forth in Section 8.1(l) shall be excluded;
(xii) [Reserved];
(xiii) then, as promptly as practicable and in any event no later than two (2) Business Days following such termination, the Debtors shall pay or cause to be paid to the
Equity Commitment Parties that are not (x) Defaulting Commitment Parties or (y) Equity Commitment Parties whose breach of this Agreement caused its termination, (i) the Backstop Commitment Termination Premium (pro rata
in accordance with their Backstop Commitment Percentages, excluding the Backstop Commitment Percentage of any (A) Defaulting Equity Commitment Party or (B) Equity Commitment Party whose breach of this Agreement caused its termination), and (ii) any
filing fees or other similar costs, fees or expenses associated with the matters contemplated by Section 6.14, as well as the Expense Reimbursement pursuant to Section 3.3 (in each case, excluding any such fees or other expenses
referenced in this clause (ii) of any (A) Defaulting Equity Commitment Party or (B) Equity Commitment Party whose breach of this Agreement caused its termination); provided that any invoices shall not
be required to contain individual time detail. Subject to Section 11.10, nothing in this Section 10.6 shall relieve any Party from liability for its breach of this Agreement; provided further that, for the avoidance of doubt, in no event shall the Backstop Commitment Termination Premium be payable if this Agreement is terminated by any Party as a result of (i) the entry of Confirmation Order or
the Backstop Order being denied, or any of such orders being reversed, vacated, reconsidered or otherwise ceasing to constitute a Final Order, (ii) any ruling in the Adversary Proceeding that would render confirmation of the Plan impractical or
impossible, or (iii) any applicable Law or Order of any Governmental Unit shall prevent or prohibit the confirmation of the Plan or the consummation of a material portion of the transactions contemplated by this Agreement or the other Definitive
Documents; provided further, that in no event shall the Backstop Commitment Termination Premium be payable to any 2016 Lender Equity Commitment Party whose breach
resulted in the termination of the RSA as to such 2016 Lender Equity Commitment Party.
59
(c) The automatic stay applicable under section 362 of the Bankruptcy Code shall not prohibit a Party from taking any action or delivering any notice necessary to effectuate the termination of
this Agreement pursuant to and in accordance with the terms hereof.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be deemed given if delivered personally, sent via electronic
facsimile (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the Parties at the following addresses (or at such other address for a Party as may be specified
by like notice):
|
(a)
|
If to Holdings or the other Debtors:
|
||
|
Revlon, Inc.
|
|||
|
55 Water St., 43rd Floor
|
|||
|
New York, NY 10041-0004
|
|||
|
Attention:
|
Andrew Kidd, EVP, General Counsel
|
||
|
Matthew Kvarda, Interim Chief Financial Officer
|
|||
|
Email:
|
andrew.kidd@revlon.com
|
||
|
mkvarda@alvarezandmarsal.com
|
|||
with a copy (which shall not constitute notice) to:
|
Paul, Weiss, Rifkind, Wharton & Garrison LLP
|
||
|
1285 Avenue of the Americas
|
||
|
New York, NY 10019-6064
|
||
|
Facsimile: (212) 757-3990
|
||
|
Attention:
|
Paul M. Basta
|
|
|
Alice B. Eaton
|
||
|
Kyle J. Kimpler
|
||
|
Robert A. Britton
|
||
|
Brian Bolin
|
||
60
|
Email:
|
pbasta@paulweiss.com
|
|
|
aeaton@paulweiss.com
|
||
|
kkimpler@paulweiss.com
|
||
|
rbritton@paulweiss.com
|
||
|
bbolin@paulweiss.com
|
(b) If to the Initial Equity Commitment Parties (or to any of them), counsel to the Initial Equity Commitment Parties, or any other Person to which notice is to be delivered hereunder, to the
address set forth on each such Equity Commitment Party’s signature page to this Agreement,
|
with a copy (which shall not constitute notice) to:
|
||
|
Davis Polk & Wardwell LLP
|
||
|
450 Lexington Avenue
|
||
|
New York, NY 10017
|
||
|
Facsimile: (212) 701-5331
|
||
|
Attn:
|
Eli J. Vonnegut
|
|
|
Angela M. Libby
|
||
|
Bodie Stewart
|
||
|
Stephanie Massman
|
||
|
Email:
|
eli.vonnegut@davispolk.com
|
|
|
angela.libby@davispolk.com
|
||
|
bodie.stewart@davispolk.com
|
||
|
stephanie.massman@davispolk.com
|
||
(c) If to the 2016 Lender Equity Commitment Parties (or to any of them), counsel to the 2016 Lender Commitment Parties, or any other Person to which notice is to be delivered hereunder, to the
address set forth on each such 2016 Lender Commitment Party’s signature page to this Agreement,
|
and with a copy (which shall not constitute notice) to:
|
||
|
Akin Gump Strauss Hauer & Feld LLP
|
||
|
2001 K Street, N.W.
|
||
|
Washington, D.C. 20006
|
||
|
Facsimile: (202) 887-4288
|
||
|
Attn:
|
James Savin
|
|
|
Abid Qureshi
|
||
|
Joseph L. Sorkin
|
||
|
Kevin Zuzolo
|
||
|
Email:
|
jsavin@akingump.com
|
|
|
aqureshi@akingump.com
|
||
|
jsorkin@akingump.com
|
||
|
kzuzolo@akingump.com
|
||
61
Section 11.2 Assignment; Third-Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned by any Party (whether
by operation of Law or otherwise) without the prior written consent of the Debtors and the Required Equity Commitment Parties, other than an assignment by an Equity Commitment Party expressly permitted by Section 2.3 or Section 2.6 and
any purported assignment in violation of this Section 11.2 shall be void ab initio and of no force or effect. Except as expressly provided in Article IX with respect to the Indemnified Persons,
this Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any Person any rights or remedies under this Agreement other than the Parties.
Section 11.3 Prior Negotiations; Entire Agreement. (a) This Agreement (including the exhibits, the schedules, and the other documents and instruments referred to herein and in the RSA)
constitutes the entire agreement of the Parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, among the Parties with respect to the subject matter of this Agreement, except that the Parties hereto
acknowledge that any confidentiality agreements heretofore executed between or among the Parties and the RSA will each continue in full force and effect.
(b) Notwithstanding anything to the contrary in the Plan (including any amendments, supplements or modifications thereto) or the Confirmation Order (and any amendments, supplements or
modifications thereto) or an affirmative vote to accept the First Amended Plan submitted by any Equity Commitment Party, nothing contained in the Plan (including any amendments, supplements or modifications thereto) or Confirmation Order (including any
amendments, supplements or modifications thereto) shall alter, amend or modify the rights of the Equity Commitment Parties under this Agreement unless such alteration, amendment or modification has been made in accordance with Section 11.7.
Section 11.4 Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH (a) THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD FOR ANY CONFLICTS OF LAW
PRINCIPLES THAT WOULD APPLY THE LAWS OF ANY OTHER JURISDICTION, AND (b) TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE. THE PARTIES CONSENT AND AGREE THAT ANY ACTION TO ENFORCE THIS AGREEMENT OR ANY DISPUTE, WHETHER SUCH DISPUTES ARISE IN LAW OR EQUITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE BANKRUPTCY COURT (OR, SOLELY TO THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER SUCH ACTION OR
DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY). THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT (OR, SOLELY TO
THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER SUCH ACTION OR DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY). EACH OF THE PARTIES HEREBY WAIVES AND
AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, (ii) SUCH PARTY OR SUCH PARTY’S PROPERTY IS IMMUNE FROM
ANY LEGAL PROCESS ISSUED BY THE BANKRUPTCY COURT OR (iii) ANY LITIGATION OR OTHER PROCEEDING COMMENCED IN THE BANKRUPTCY COURT IS BROUGHT IN AN INCONVENIENT FORUM (OR, IN EACH CASE, SOLELY TO THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER
SUCH ACTION OR DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY). THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION
OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER
HEREIN PROVIDED.
62
Section 11.5 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG THE
PARTIES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE.
Section 11.6 Counterparts. This Agreement may be executed in any number of counterparts, all of which will be considered one and the same agreement and will become effective when
counterparts have been signed by each of the Parties and delivered to each other Party (including via facsimile or other electronic transmission), it being understood that each Party need not sign the same counterpart. Any facsimile or electronic
signature shall be treated in all respects as having the same effect as having an original signature.
Section 11.7 Waivers and Amendments; Rights Cumulative; Consent. This Agreement may be amended, restated, modified or changed only by a written instrument (with email being sufficient)
delivered by the Debtors and the Required Equity Commitment Parties; provided that, in addition, (a) any proposed
amendment that would decrease the Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment), Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), share
of the Backstop Commitment Premium, or share of the Backstop Commitment Termination Premium of a BrandCo Lender Equity Commitment Party in connection with a pro rata reduction among all BrandCo Lender Equity Commitment Parties (at the time directly
preceding such amendment) shall require the prior written consent (with email being sufficient) of the Supermajority Equity Commitment Parties; (b) any proposed amendment that would decrease Backstop Commitment Percentage (which, for the avoidance of
doubt, includes the Backstop Commitment), Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), share of the Backstop Commitment Premium, or share of the Backstop Commitment Termination Premium of
a 2016 Lender Equity Commitment Party in connection with a pro rata reduction among all 2016 Lender Equity Commitment Parties (at the time directly preceding such amendment) shall require the prior written consent (with email being sufficient) of the
Required Consenting 2016 Lenders; (c) any proposed modification, amendment, waiver or supplement that would, directly or indirectly, (i) increase an Equity Commitment Party’s Purchase Price in respect of its Rights Offering Shares, (ii) increase an
Equity Commitment Party’s Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment) or Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), (iii)
decrease the Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment), Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), share of the Backstop
Commitment Premium, or share of the Backstop Commitment Termination Premium (A) of a BrandCo Lender Equity Commitment Party on a non-pro rata basis vis-à-vis the other BrandCo Lender Equity Commitment Parties or (B) of a 2016 Lender Equity Commitment
Party vis-à-vis the other 2016 Lender Equity Commitment Parties (in each case, at the time directly preceding such amendment); (iv) otherwise disproportionately and materially adversely affect a BrandCo Lender Equity Commitment Party vis-à-vis the
other BrandCo Lender Equity Commitment Parties or a 2016 Lender Equity Commitment Party vis-à-vis the other 2016 Lender Equity Commitment Parties; or (v) modify a Significant Term shall require the prior written consent (with email being sufficient) of
each affected Equity Commitment Party; and (d) any proposed modification, amendment, waiver or supplement that would materially, disproportionately and adversely affect the 2016 Lender Equity Commitment Parties vis-à-vis the BrandCo Lender Equity
Commitment Parties (including on account of any modification to the Consenting 2016 Lender Significant Terms) shall require the consent of the Required Consenting 2016 Lenders.
63
Notwithstanding the foregoing, Schedule 2.1 and Schedule 2.2 shall be revised as necessary without requiring a written instrument to reflect conforming changes in the composition of the
Equity Commitment Parties and Backstop Commitment Percentages as a result of Transfers of any applicable Funding Commitments permitted and consummated in compliance with the terms and conditions of this Agreement.
The terms and conditions of this Agreement (other than the conditions set forth in Section 8.1 and Section 8.4, the waiver of which shall be governed solely by Article VIII) may
be waived (a) by the Debtors only by a written instrument executed by the Debtors and (b) by the Required Equity Commitment Parties only by a written instrument executed by the Required Equity Commitment Parties.
No delay on the part of any Party in exercising any right, power or privilege pursuant to this Agreement will operate as a waiver thereof, nor will any waiver on the part of any Party of any right,
power or privilege pursuant to this Agreement, nor will any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege
pursuant to this Agreement. 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 11.8 Headings. The headings in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.
Section 11.9 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and
that the Parties shall be entitled to an injunction or injunctions, including pursuant to an order of the Bankruptcy Court or other court of competent jurisdiction, without the necessity of posting a bond to prevent breaches of this Agreement or to
enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Unless otherwise expressly stated in this Agreement, no right or remedy described or provided in
this Agreement is intended to be exclusive or to preclude a Party from pursuing other rights and remedies to the extent available under this Agreement, at law or in equity.
Section 11.10 Damages. Notwithstanding anything to the contrary in this Agreement, none of the Parties will be liable for, and none of the Parties shall claim or seek to recover, any
punitive, special, indirect or consequential damages or damages for lost profits in connection with the breach or termination of this Agreement.
64
Section 11.11 No Reliance. No Equity Commitment Party or any of its Related Parties shall have any duties or obligations to the other Equity Commitment Parties in respect of this
Agreement, the Plan or the transactions contemplated hereby or thereby, except those expressly set forth herein. Without limiting the generality of the foregoing, (a) no Equity Commitment Party or any of its Related Parties shall be subject to any
fiduciary or other implied duties to the other Equity Commitment Parties, (b) no Equity Commitment Party or any of its Related Parties shall have any duty to take any discretionary action or exercise any discretionary powers on behalf of any other
Equity Commitment Party, (c) no Equity Commitment Party or any of its Related Parties shall have any duty to the other Equity Commitment Parties to obtain, through the exercise of diligence or otherwise, to investigate, confirm, or disclose to the
other Equity Commitment Parties any information relating to the Debtors that may have been communicated to or obtained by such Equity Commitment Party or any of its Affiliates in any capacity, (d) no Equity Commitment Party may rely, and confirms that
it has not relied, on any due diligence investigation that any other Equity Commitment Party or any Person acting on behalf of such other Equity Commitment Party may have conducted with respect to the Debtors or any of their Affiliates or any of their
respective securities, and (e) each Equity Commitment Party acknowledges that no other Equity Commitment Party is acting as a placement agent, initial purchaser, underwriter, broker or finder with respect to its Unsubscribed Shares or Backstop
Commitment Percentage of its Backstop Commitment.
Section 11.12 Settlement Discussions. This Agreement and the transactions contemplated herein are part of a proposed settlement of a dispute between the Parties. Nothing herein shall be
deemed an admission of any kind. Pursuant to Section 408 of the U.S. Federal Rule of Evidence and any applicable state rules of evidence, this Agreement and all negotiations relating thereto shall not be admissible into evidence in any Legal
Proceeding, except to the extent filed with, or disclosed to, the Bankruptcy Court in connection with the Chapter 11 Cases (other than a Legal Proceeding to approve or enforce the terms of this Agreement). The Parties agree that any valuations of
Holdings’ or other Debtor’s assets or estates, whether implied or otherwise, arising from this Agreement shall not be binding for any other purpose, including determining recoveries under the Plan, and that this Agreement does not limit the Parties’
rights regarding valuation in the Chapter 11 Cases.
Section 11.13 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Parties may be partnerships or
limited liability companies, each Party covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any Party’s Affiliates or any of the
respective Related Parties of such Party or of the Affiliates of such Party (in each case other than the Parties to this Agreement and each of their respective successors and permitted assignees under this Agreement), whether by the enforcement of any
assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of such Related
Parties, as such, for any obligation or liability of any Party under this Agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their
creation; provided, however, that nothing in this Section 11.13 shall relieve or otherwise limit the liability of any Party hereto or any of their respective
successors or permitted assigns for any breach or violation of its obligations under this Agreement or such other documents or instruments. For the avoidance of doubt, none of the Parties will have any recourse, be entitled to commence any proceeding
or make any claim under this Agreement or in connection with the transactions contemplated hereby except against any of the Parties or their respective successors and permitted assigns, as applicable.
65
Section 11.14 Severability. In the event that any one or more of the provisions contained in this Agreement are held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein will not be in any way impaired thereby, it being intended that all of the rights and privileges of the parties hereto
will be enforceable to the fullest extent permitted by law.
Section 11.15 Enforceability of Agreement. Each of the Parties waives any right to assert that the exercise of termination rights under this Agreement is subject to the automatic stay
provisions of the Bankruptcy Code, and expressly stipulates and consents hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, to the extent
the Bankruptcy Court determines that such relief is required.
[Signature Pages Follow]
66
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first above written.
REVLON, INC., and each of the Debtors
listed on Schedule 1
|
By:
|
/s/ Robert M. Caruso | |
|
Name:
|
Robert M. Caruso
|
|
|
Title:
|
Authorized Signatory
|
Schedule 1
Debtors
| 1. |
Revlon, Inc.
|
| 2. |
Elizabeth Arden USC, LLC
|
| 3. |
BrandCo Almay 2020 LLC
|
| 4. |
Elizabeth Arden, Inc.
|
| 5. |
BrandCo Charlie 2020 LLC
|
| 6. |
FD Management, Inc.
|
| 7. |
Revlon Consumer Products Corporation
|
| 8. |
BrandCo CND 2020 LLC
|
| 9. |
North America Revsale Inc.
|
| 10. |
OPP Products, Inc.
|
| 11. |
Almay, Inc.
|
| 12. |
BrandCo Curve 2020 LLC
|
| 13. |
RDEN Management, Inc.
|
| 14. |
BrandCo Elizabeth Arden 2020 LLC
|
| 15. |
Art & Science, Ltd.
|
| 16. |
Realistic Roux Professional Products Inc.
|
| 17. |
Roux Laboratories, Inc.
|
| 18. |
BrandCo Giorgio Beverly Hills 2020 LLC
|
| 19. |
Revlon Development Corp.
|
| 20. |
Roux Properties Jacksonville, LLC
|
| 21. |
BrandCo Halston 2020 LLC
|
| 22. |
Revlon Government Sales, Inc.
|
| 23. |
SinfulColors Inc.
|
| 24. |
BrandCo Jean Nate 2020 LLC
|
| 25. |
RML, LLC
|
| 26. |
Revlon International Corporation
|
| 27. |
Bari Cosmetics, Ltd.
|
| 28. |
PPI Two Corporation
|
| 29. |
Revlon Professional Holding Company LLC
|
| 30. |
BrandCo Mitchum 2020 LLC
|
| 31. |
Revlon (Puerto Rico) Inc.
|
| 32. |
Riros Corporation
|
| 33. |
BrandCo Multicultural Group 2020 LLC
|
| 34. |
Elizabeth Arden (UK) Ltd.
|
| 35. |
Riros Group Inc.
|
| 36. |
Beautyge Brands USA, Inc.
|
| 37. |
Elizabeth Arden (Canada) Limited
|
| 38. |
BrandCo PS 2020 LLC
|
| 39. |
BrandCo White Shoulders 2020 LLC
|
| 40. |
Revlon Canada Inc.
|
| 41. |
Beautyge USA, Inc.
|
| 42. |
Beautyge I
|
| 43. |
Charles Revson Inc.
|
| 44. |
Beautyge II, LLC
|
| 45. |
Creative Nail Design, Inc.
|
| 46. |
Cutex, Inc.
|
| 47. |
DF Enterprises, Inc.
|
| 48. |
Elizabeth Arden (Financing), Inc.
|
| 49. |
Elizabeth Arden Investments, LLC
|
| 50. |
Elizabeth Arden NM, LLC
|
| 51. |
Elizabeth Arden Travel Retail, Inc.
|
Schedule 2.1
Backstop Commitment Percentages and Direct Allocation Percentages
of the BrandCo Lender Equity Commitment Parties
Schedule 2.2
Backstop Commitment Percentages and Direct Allocation Percentages
of the 2016 Lender Equity Commitment Parties
EXHIBIT A
FORM OF JOINDER FOR RELATED PURCHASER
Joinder to the Restated Backstop Commitment Agreement (this “Joinder”) dated as of [•], by and among [____________] (the “Transferor”) and [____________] (the “Transferee”).
W I T N E S S E T H:
WHEREAS, Revlon, Inc. (“Holdings”), Revlon Consumer Products Corporation (“RCPC”),
certain of their directly- and indirectly-owned subsidiaries and the Equity Commitment Parties party thereto have heretofore executed and delivered the Amended and Restated Backstop Commitment Agreement, dated as of February 21, 2023 (as amended,
supplemented, restated or otherwise modified from time to time, the “Agreement”);
WHEREAS, pursuant to Section 2.6(b) of the Agreement, each Equity Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment and/or
Direct Allocation Commitment to any Related Purchaser, subject to the terms and conditions set forth in the Agreement; and
WHEREAS, Transferor desires to sell to Transferee and Transferee desires to purchase from Transferor the Backstop Commitment Percentage and/or the Direct Allocation Percentage
set forth beneath its signature in the signature page hereto (the “Subject Transfer”);
NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Transferor and the Transferee
covenant and agree as follows:
| 1. |
Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement. The “General Provisions” set forth in Article XI of the
Agreement shall be deemed to apply to this Joinder and are incorporated herein by reference, mutatis mutandis.
|
| 2. |
Agreement to Transfer. The Transferor hereby agrees to Transfer to the Transferee, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, the Backstop
Commitment Percentage and/or the Direct Allocation Percentage as set forth beneath its signature in the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been
revised in accordance with the Agreement).
|
| 3. |
Agreement to be Bound. The Transferee hereby agrees (a) to become a party to the Agreement as an Equity Commitment Party and Party and as such will have all the rights and be subject to all of the
obligations and agreements of an Equity Commitment Party under the Agreement, (b) to purchase, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, such number of Unsubscribed Shares as
corresponds to the Backstop Commitment Percentage and/or such number of Direct Allocation Shares as corresponds to the Direct Allocation Percentage. The Backstop Commitment Percentage and/or the Direct Allocation Percentage Transferred to
the Transferee pursuant to the Subject Transfer as of the date hereof are set forth on the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been revised in
accordance with the Agreement); provided, however, that such Transferee’s Backstop Commitment Percentage and Direct Allocation Percentage may be modified after the date hereof, subject
to the terms of the Agreement and the Backstop Order.
|
| 4. |
Release of Obligations of Transferor. Upon consummation of the Subject Transfer, the Transferor shall be deemed to relinquish its rights and be released from its obligations under the Agreement with
respect to the Subject Transfer.
|
| 5. |
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants that the Subject Transfer does not violate any of the provisions contained in Section 2.6(e) of the
Agreement.
|
| 6. |
Representations and Warranties of the Transferee. The Transferee hereby (a) represents and warrants that the Transferee is a Related Purchaser of the Transferor and (b) makes, to each of the other
Parties, as to itself only and (unless otherwise set forth therein) as of the date hereof and as of the Closing Date, the representations and warranties set forth in Article V of the Agreement; provided, however, for purposes of any
representation concerning OpCo Term Loan Claims and/or 2020 Term B-2 Loan Claims, the Transferee is only hereby making representations with respect to any such Claims that it actually holds on the date hereof (which may be none, in which
case it makes no such representations).
|
| 7. |
Governing Law. This Joinder shall be governed by and construed in accordance with the laws of the State of New York without regard for any conflict of law principles that would apply the laws of any other
jurisdiction, and, to the extent applicable, the Bankruptcy Code.
|
| 8. |
Notice. All notices and other communications given or made to the Transferee in connection with the Agreement shall be made in accordance with Section 11.1 of the Agreement, to the address set
forth under the Transferee’s signature in the signature pages hereto (and the Agreement shall be deemed to have been updated to include such notice information for the Transferee).
|
[Signature pages follow]
IN WITNESS WHEREOF, each of the undersigned parties has caused this Joinder to be executed as of the date first written above.
|
TRANSFEROR:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
|
TRANSFEREE:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
EXHIBIT B-1
FORM OF JOINDER FOR EXISTING COMMITMENT PARTY PURCHASER
Joinder to the Amended and Restated Backstop Commitment Agreement (this “Joinder”) dated as of [•], by and among [____________] (the “Transferor”) and [____________] (the “Transferee”).
W I T N E S S E T H:
WHEREAS, Revlon, Inc. (“Holdings”), Revlon Consumer Products Corporation (“RCPC”),
certain of their directly- and indirectly-owned subsidiaries and the Equity Commitment Parties party thereto have heretofore executed and delivered the Amended and Restated Backstop Commitment Agreement, dated as of February 21, 2023 (as amended,
supplemented, restated or otherwise modified from time to time, the “Agreement”);
WHEREAS, pursuant to Section 2.6(c) of the Agreement, each Equity Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment and/or
Direct Allocation Commitment to any Existing Commitment Party Purchaser, subject to the terms and conditions set forth in the Agreement; and
WHEREAS, Transferor desires to sell to Transferee and Transferee desires to purchase from Transferor the Backstop Commitment Percentage and/or the Direct Allocation Percentage
set forth beneath its signature in the signature page hereto (the “Subject Transfer”);
NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Transferor and the Transferee
covenant and agree as follows:
| 1. |
Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement. The “General Provisions” set forth in Article XI of the
Agreement shall be deemed to apply to this Joinder and are incorporated herein by reference, mutatis mutandis.
|
| 2. |
Agreement to Transfer. The Transferor hereby agrees to Transfer to the Transferee, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, the Backstop
Commitment Percentage and/or the Direct Allocation Percentage as set forth beneath its signature in the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been
revised in accordance with the Agreement).
|
| 3. |
Agreement to be Bound. The Transferee hereby agrees (a) to become a party to the Agreement as an Equity Commitment Party and Party and as such will have all the rights and be subject to all of the
obligations and agreements of an Equity Commitment Party under the Agreement, (b) to purchase, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, such number of Unsubscribed Shares as
corresponds to the Backstop Commitment Percentage and/or such number of Direct Allocation Shares as corresponds to the Direct Allocation Percentage. The Backstop Commitment Percentage and/or the Direct Allocation Percentage Transferred to
the Transferee pursuant to the Subject Transfer as of the date hereof are set forth on the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been revised in
accordance with the Agreement); provided, however, that such Transferee’s Backstop Commitment Percentage and Direct Allocation Percentage may be modified after the date hereof, subject
to the terms of the Agreement and the Backstop Order.
|
| 4. |
Release of Obligations of Transferor. Upon consummation of the Subject Transfer, the Transferor shall be deemed to relinquish its rights and be released from its obligations under the Agreement with
respect to the Subject Transfer.
|
| 5. |
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants that the Subject Transfer does not violate any of the provisions contained in Section 2.6(e) of the
Agreement.
|
| 6. |
Representations and Warranties of the Transferee. The Transferee hereby (a) represents and warrants that the Transferee is an Existing Commitment Party Purchaser (and not prior to the date hereof an
Equity Commitment Party) and (b) makes, to each of the other Parties, as to itself only and (unless otherwise set forth therein) as of the date hereof and as of the Closing Date, the representations and warranties set forth in Article V
of the Agreement; provided, however, for purposes of any representation concerning OpCo Term Loan Claims and/or 2020 Term B-2 Loan Claims, the Transferee is only hereby making representations with respect to any such Claims that it
actually holds on the date hereof (which may be none, in which case it makes no such representations).
|
| 7. |
Governing Law. This Joinder shall be governed by and construed in accordance with the laws of the State of New York without regard for any conflict of law principles that would apply the laws of any other
jurisdiction, and, to the extent applicable, the Bankruptcy Code.
|
| 8. |
Notice. All notices and other communications given or made to the Transferee in connection with the Agreement shall be made in accordance with Section 11.1 of the Agreement, to the address set
forth under the Transferee’s signature in the signature pages hereto (and the Agreement shall be deemed to have been updated to include such notice information for the Transferee).
|
[Signature pages follow]
IN WITNESS WHEREOF, each of the undersigned parties has caused this Joinder to be executed as of the date first written above.
|
TRANSFEROR:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
|
TRANSFEREE:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
EXHIBIT B-2
FORM OF AMENDMENT FOR EXISTING COMMITMENT PARTY PURCHASER
Amendment to the Amended and Restated Backstop Commitment Agreement (this “Amendment”) dated as of [•], by and among [____________] (the “Transferor”) and [____________] (the “Transferee”).
W I T N E S S E T H:
WHEREAS, Revlon, Inc. (“Holdings”), Revlon Consumer Products Corporation (“RCPC”),
certain of their directly- and indirectly-owned subsidiaries and the Equity Commitment Parties party thereto have heretofore executed and delivered the Amended and Restated Backstop Commitment Agreement, dated as of February 21, 2023 (as amended,
supplemented, restated or otherwise modified from time to time, the “Agreement”);
WHEREAS, pursuant to Section 2.6(c) of the Agreement, each Equity Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment and/or
Direct Allocation Commitment to any Existing Commitment Party Purchaser, subject to the terms and conditions set forth in the Agreement; and
WHEREAS, Transferor desires to sell to Transferee and Transferee desires to purchase from Transferor the Backstop Commitment Percentage and/or the Direct Allocation Percentage
set forth beneath its signature in the signature page hereto (the “Subject Transfer”);
NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Transferor, the Transferee, and the
Debtors covenant and agree as follows:
| 1. |
Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement. The “General Provisions” set forth in Article XI of the
Agreement shall be deemed to apply to this Amendment and are incorporated herein by reference, mutatis mutandis.
|
| 2. |
Agreement to Transfer. The Transferor hereby agrees to Transfer to the Transferee, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, the Backstop
Commitment Percentage and/or the Direct Allocation Percentage as set forth beneath its signature in the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been
revised in accordance with the Agreement).
|
| 3. |
Agreement to be Bound. The Transferee hereby agrees to purchase, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, such number of Unsubscribed Shares as
corresponds to the Backstop Commitment Percentage and/or such number of Direct Allocation Shares as corresponds to the Direct Allocation Percentage. The Backstop Commitment Percentage and/or the Direct Allocation Percentage Transferred to
the Transferee pursuant to the Subject Transfer as of the date hereof are set forth on the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been revised in
accordance with the Agreement); provided, however, that such Transferee’s Backstop Commitment Percentage and Direct Allocation Percentage may be decreased after the date hereof, subject
to the terms of the Agreement and the Backstop Order.
|
| 4. |
Release of Obligations of Transferor. Upon consummation of the Subject Transfer, the Transferor shall be deemed to relinquish its rights and be released from its obligations under the Agreement with
respect to the Subject Transfer.
|
| 5. |
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants that the Subject Transfer does not violate any of the provisions contained in Section 2.6(e) of the
Agreement.
|
| 6. |
Representations and Warranties of the Transferee. The Transferee hereby (a) represents and warrants that the Transferee is an Existing Commitment Party Purchaser (and prior to the date hereof an Equity
Commitment Party) and (b) makes, to each of the other Parties, as to itself only and (unless otherwise set forth therein) as of the date hereof and as of the Closing Date, the representations and warranties set forth in Article V of
the Agreement; provided, however, for purposes of any representation concerning OpCo Term Loan Claims and/or 2020 Term B-2 Loan Claims, the Transferee is only hereby making representations with respect to any such Claims that it actually
holds on the date hereof (which may be none, in which case it makes no such representations).
|
| 7. |
Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York without regard for any conflict of law principles that would apply the laws of any
other jurisdiction, and, to the extent applicable, the Bankruptcy Code.
|
| 8. |
Notice. All notices and other communications given or made to the Transferee in connection with the Agreement shall be made in accordance with Section 11.1 of the Agreement, to the address set
forth under the Transferee’s signature in the signature pages hereto (and the Agreement shall be deemed to have been updated to include such notice information for the Transferee).
|
[Signature pages follow]
IN WITNESS WHEREOF, each of the undersigned parties has caused this Amendment to be executed as of the date first written above.
|
TRANSFEROR:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
|
TRANSFEREE:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
Acknowledged and Agreed to:
REVLON, INC., and each of the Debtors
listed on Schedule 1 of the Agreement
|
By:
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT C
FORM OF JOINDER FOR NEW PURCHASER
Joinder to the Amended and Restated Backstop Commitment Agreement (this “Joinder”) dated as of [•], by and among [____________] (the “Transferor”) and [____________] (the “Transferee”).
W I T N E S S E T H:
WHEREAS, Revlon, Inc. (“Holdings”), Revlon Consumer Products Corporation (“RCPC”),
certain of their directly- and indirectly-owned subsidiaries and the Equity Commitment Parties party thereto have heretofore executed and delivered the Amended and Restated Backstop Commitment Agreement, dated as of February 21, 2023 (as amended,
supplemented, restated or otherwise modified from time to time, the “Agreement”);
WHEREAS, pursuant to Section 2.6(d) of the Agreement, each Equity Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment and/or
Direct Allocation Commitment to any New Purchaser, subject to the terms and conditions set forth in the Agreement; and
WHEREAS, Transferor desires to sell to Transferee and Transferee desires to purchase from Transferor the Backstop Commitment Percentage and/or the Direct Allocation Percentage
set forth beneath its signature in the signature page hereto (the “Subject Transfer”);
WHEREAS, the Subject Transfer has been consented to (or has been deemed consented to pursuant to Section 2.6(d) of the Agreement) by the Required Equity Commitment
Parties; and
WHEREAS, the Subject Transfer has been consented to (or has been deemed consented to pursuant to Section 2.6(d) of the Agreement) by the Debtors;
NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Transferor and the Transferee
covenant and agree as follows:
| 1. |
Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement. The “General Provisions” set forth in Article XI of the
Agreement shall be deemed to apply to this Joinder and are incorporated herein by reference, mutatis mutandis.
|
| 2. |
Agreement to Transfer. The Transferor hereby agrees to Transfer to the Transferee, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, the Backstop
Commitment Percentage and/or the Direct Allocation Percentage as set forth beneath its signature in the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been
revised in accordance with the Agreement).
|
| 3. |
Agreement to be Bound. The Transferee hereby agrees (a) to become a party to the Agreement as an Equity Commitment Party and Party and as such will have all the rights and be subject to all of the
obligations and agreements of an Equity Commitment Party under the Agreement, (b) to purchase, pursuant and subject to the terms and conditions set forth in the Agreement and the Backstop Order, such number of Unsubscribed Shares as
corresponds to the Backstop Commitment Percentage and/or such number of Direct Allocation Shares as corresponds to the Direct Allocation Percentage. The Backstop Commitment Percentage and/or the Direct Allocation Percentage Transferred to
the Transferee pursuant to the Subject Transfer as of the date hereof are set forth on the signature page hereto (and Schedule 2.1 or Schedule 2.2 (as applicable) to the Agreement shall be deemed to have been revised in
accordance with the Agreement); provided, however, that such Transferee’s Backstop Commitment Percentage and Direct Allocation Percentage may be modified after the date hereof, subject
to the terms of the Agreement and the Backstop Order.
|
| 4. |
Release of Obligations of Transferor. Upon consummation of the Subject Transfer, the Transferor shall be deemed to relinquish its rights and be released from its obligations under the Agreement with
respect to the Subject Transfer.
|
| 5. |
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants that (a) the Subject Transfer has been consented to (or has been deemed consented to pursuant to Section
2.6(d) of the Agreement) by the Required Equity Commitment Parties; (b) the Subject Transfer has been consented to (or has been deemed consented to pursuant to Section 2.6(d) of the Agreement) by the Debtors; and (c) the
Subject Transfer does not violate any of the provisions contained in Section 2.6(e) of the Agreement.
|
| 6. |
Representations and Warranties of the Transferee. The Transferee hereby makes, to each of the other Parties, as to itself only and (unless otherwise set forth therein) as of the date hereof and as of the
Closing Date, the representations and warranties set forth in Article V of the Agreement; provided, however, for purposes of any representation concerning OpCo Term Loan Claims and/or 2020 Term B-2 Loan Claims, the Transferee is
only hereby making representations with respect to any such Claims that it actually holds on the date hereof (which may be none, in which case it makes no such representations).
|
| 7. |
Governing Law. This Joinder shall be governed by and construed in accordance with the laws of the State of New York without regard for any conflict of law principles that would apply the laws of any other
jurisdiction, and, to the extent applicable, the Bankruptcy Code.
|
| 8. |
Notice. All notices and other communications given or made to the Transferee in connection with the Agreement shall be made in accordance with Section 11.1 of the Agreement, to the address set
forth under the Transferee’s signature in the signature pages hereto (and the Agreement shall be deemed to have been updated to include such notice information for the Transferee).
|
[Signature pages follow]
IN WITNESS WHEREOF, each of the undersigned parties has caused this Joinder to be executed as of the date first written above.
|
TRANSFEROR:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
|
TRANSFEREE:
[ ]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
|||
|
Email:
|
|||
|
Facsimile:
|
|||
|
Backstop Commitment Percentage:
|
|||
|
Direct Allocation Percentage:
|
|||
Exhibit 99.1
SOLICITATION VERSION
Paul M. Basta
Alice Belisle Eaton
Kyle J. Kimpler
Robert A. Britton
Brian Bolin
Sean A. Mitchell
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
Telephone: (212) 373-3000
Facsimile: (212) 757-3990
Counsel to the Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
|
)
|
||
|
In re:
|
)
|
Chapter 11
|
|
)
|
||
|
REVLON, INC., et al.,1
|
)
|
Case No. 22-10760 (DSJ)
|
|
)
|
||
|
Debtors.
|
)
|
(Jointly Administered)
|
|
)
|
FIRST AMENDED JOINT PLAN OF REORGANIZATION OF
REVLON, INC. AND ITS DEBTOR AFFILIATES
PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
NOTHING CONTAINED HEREIN SHALL CONSTITUTE AN OFFER, ACCEPTANCE, COMMITMENT, OR LEGALLY BINDING OBLIGATION OF THE DEBTORS OR ANY OTHER PARTY IN INTEREST, AND THIS PLAN IS SUBJECT TO
APPROVAL BY THE BANKRUPTCY COURT AND OTHER CUSTOMARY CONDITIONS. THIS PLAN IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES.
|
1
|
The last four digits of Debtor Revlon, Inc.’s tax identification number are 2955. Due to the large number of debtor entities in these Chapter 11 Cases, for which the Court has granted joint
administration, a complete list of the debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list of such information may be obtained on the website of the Debtors’
claims and noticing agent at https://cases.ra.kroll.com/Revlon. The location of the Debtors’ service address for purposes of these Chapter 11 Cases is: 55 Water St., 43rd Floor, New York, 10041-0004.
|
TABLE OF CONTENTS
|
Page
|
|||
|
ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW
|
1
|
||
|
A.
|
Defined Terms
|
1
|
|
|
B.
|
Rules of Interpretation
|
33
|
|
|
C.
|
Computation of Time
|
34
|
|
|
D.
|
Governing Law
|
34
|
|
|
E.
|
Reference to Monetary Figures
|
34
|
|
|
F.
|
Reference to the Debtors or the Reorganized Debtors
|
34
|
|
|
G.
|
Controlling Document
|
34
|
|
|
ARTICLE II. ADMINISTRATIVE CLAIMS AND OTHER UNCLASSIFIED CLAIMS
|
35
|
||
|
A.
|
Administrative Claims
|
35
|
|
|
B.
|
Professional Compensation Claims
|
36
|
|
|
C.
|
Priority Tax Claims
|
37
|
|
|
D.
|
ABL DIP Facility Claims
|
38
|
|
|
E.
|
Term DIP Facility Claims
|
39
|
|
|
F.
|
Intercompany DIP Facility Claims
|
39
|
|
|
G.
|
Statutory Fees
|
39
|
|
|
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
|
40
|
||
|
A.
|
Classification of Claims and Interests
|
40
|
|
|
B.
|
Summary of Classification
|
40
|
|
|
C.
|
Treatment of Claims and Interests
|
41
|
|
|
D.
|
Voting of Claims
|
49
|
|
|
E.
|
No Substantive Consolidation
|
49
|
|
|
F.
|
Acceptance by Impaired Classes
|
50
|
|
|
G.
|
Special Provision Governing Unimpaired Claims
|
50
|
|
|
H.
|
Elimination of Vacant Classes
|
50
|
|
|
I.
|
Consensual Confirmation
|
50
|
|
|
J.
|
Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code
|
50
|
|
|
K.
|
Controversy Concerning Impairment or Classification
|
51
|
|
i
|
L.
|
Subordinated Claims
|
51
|
|
|
M.
|
2016 Term Loan Claims
|
51
|
|
|
N.
|
Intercompany Interests
|
51
|
|
|
ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN
|
51
|
||
|
A.
|
Sources of Consideration for Plan Distributions
|
51
|
|
|
B.
|
Restructuring Transactions
|
56
|
|
|
C.
|
Corporate Existence
|
57
|
|
|
D.
|
Vesting of Assets in the Reorganized Debtors
|
58
|
|
|
E.
|
Cancellation of Existing Indebtedness and Securities
|
58
|
|
|
F.
|
Corporate Action
|
59
|
|
|
G.
|
New Organizational Documents
|
60
|
|
|
H.
|
Directors and Officers of the Reorganized Debtors
|
60
|
|
|
I.
|
Employment Obligations
|
61
|
|
|
J.
|
Qualified Pension Plans
|
62
|
|
|
K.
|
Retiree Benefits
|
62
|
|
|
L.
|
Key Employee Incentive/Retention Plans
|
62
|
|
|
M.
|
Effectuating Documents; Further Transactions
|
63
|
|
|
N.
|
Management Incentive Plan
|
63
|
|
|
O.
|
Exemption from Certain Taxes and Fees
|
63
|
|
|
P.
|
Indemnification Provisions
|
64
|
|
|
Q.
|
Preservation of Causes of Action
|
64
|
|
|
R.
|
GUC Trust and PI Settlement Fund
|
65
|
|
|
S.
|
Restructuring Expenses
|
67
|
|
|
ARTICLE V. THE GUC TRUST
|
67
|
||
|
A.
|
Establishment of the GUC Trust
|
67
|
|
|
B.
|
The GUC Administrator
|
68
|
|
|
C.
|
Certain Tax Matters
|
68
|
|
|
ARTICLE VI. PI SETTLEMENT FUND
|
69
|
||
|
A.
|
Establishment of the PI Settlement Fund
|
69
|
|
|
B.
|
The PI Claims Administrator
|
69
|
|
|
C.
|
Certain Tax Matters
|
69
|
|
ii
|
ARTICLE VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
|
70
|
||
|
A.
|
Assumption and Rejection of Executory Contracts and Unexpired Leases
|
70
|
|
|
B.
|
Claims Based on Rejection of Executory Contracts or Unexpired Leases
|
71
|
|
|
C.
|
Cure of Defaults for Assumed Executory Contracts and Unexpired Leases
|
71
|
|
|
D.
|
Pre-existing Obligations to the Debtors under Executory Contracts and Unexpired Leases
|
73
|
|
|
E.
|
Insurance Policies
|
73
|
|
|
F.
|
Indemnification Provisions
|
73
|
|
|
G.
|
Modifications, Amendments, Supplements, Restatements, or Other Agreements
|
73
|
|
|
H.
|
Reservation of Rights
|
74
|
|
|
I.
|
Nonoccurrence of Effective Date
|
74
|
|
|
J.
|
Contracts and Leases Entered Into After the Petition Date
|
74
|
|
|
ARTICLE VIII. PROVISIONS GOVERNING DISTRIBUTIONS
|
75
|
||
|
A.
|
Timing and Calculation of Amounts to Be Distributed
|
75
|
|
|
B.
|
Distributions on Account of Obligations of Multiple Debtors
|
75
|
|
|
C.
|
Disbursing Agent
|
75
|
|
|
D.
|
Rights and Powers of Disbursing Agent
|
75
|
|
|
E.
|
Delivery of Distributions and Undeliverable or Unclaimed Distributions
|
76
|
|
|
F.
|
Manner of Payment
|
79
|
|
|
G.
|
Registration or Private Placement Exemption
|
79
|
|
|
H.
|
|||