UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 23, 2024 (
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (
Not Applicable
(Former name or former address, if changed since last report)
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:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| * | On April 3, 2024, The Nasdaq Stock Market LLC determined to delist View, Inc.’s Class A common stock, par value $0.0001 per share, and redeemable warrants, exercisable for Class A common stock at an exercise price of $11.50 per share, and to suspend trading thereof on April 5, 2024. |
Indicate by check mark whether the 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).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has 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. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
The information disclosed under Item 1.03 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01 to the extent required.
| Item 1.03 | Bankruptcy or Receivership. |
As previously disclosed, on April 2, 2024, View, Inc. (“View” or the “Company”) and certain of its subsidiaries (collectively, the “Debtors”) filed voluntary petitions in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), with a prepackaged chapter 11 plan as contemplated by the Restructuring Support Agreement, dated April 2, 2024 (the “RSA”). The Chapter 11 Cases are jointly administered under the caption In re View Inc., Case No. 24-10692. The Debtors have continued 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.
Confirmation of the Plan of Reorganization
As contemplated in the RSA, on April 2, 2024, the Debtors filed the Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc., and its Debtor Affiliates. On May 19, 2024, the Debtors filed the Second Amended Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc., and its Debtor Affiliates (the “Plan”), a copy of which is attached as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference. Capitalized terms used but not defined in this Current Report on Form 8-K have the meanings ascribed to such terms in the Plan.
On May 20, 2024, the Bankruptcy Court entered an order (Docket No. 201) (the “Confirmation Order”) confirming the Plan. A copy of the Confirmation Order is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
On May 22, 2024 (the “Effective Date”), each condition precedent to consummation of the Plan, enumerated in Article IX.A of the Plan, was satisfied or waived in accordance with the Plan and the Confirmation Order; therefore, the Effective Date of the Plan occurred, and the Debtors emerged from their Chapter 11 Cases. On May 22, 2024, the Debtors filed the notice of the occurrence of the Effective Date (the “Effective Date Notice”) with the Bankruptcy Court. Accordingly, the Plan is binding, enforceable and in full force and effect pursuant to its terms. As part of the transactions undertaken pursuant to the Prepackaged Plan, (i) all of the shares of common stock, par value $0.0001 per share, of the Company (the “Existing Equity Interests”), together with any shares of restricted stock, restricted stock units, or any other right to receive equity in the Company, in each case, outstanding immediately prior to the Effective Date, were cancelled, discharged and of no further force and effect and (ii) the Company converted into a limited liability company, View Operations, LLC, and became a wholly-owned subsidiary of View TopCo, LLC.
A copy of the Effective Date Notice is attached hereto as Exhibit 99.2 and is incorporated by reference herein.
Summary of Material Terms of Bankruptcy Plan
The following is a summary of the material terms of the Plan. This summary highlights only certain material substantive provisions of the Plan and is not intended to be a complete description of the Plan. This summary is qualified in its entirety by reference to the full text of the Plan, the definitive documents implementing the Plan and the Confirmation Order.
The Plan contemplates that the Debtors will continue their day-to-day operations substantially as currently conducted and that all of their commercial and operational contracts will remain in effect in accordance with their terms preserving the rights of all parties.
On the Effective Date, all amounts due under (a) the Prepetition Credit Agreement (totaling approximately $52 million) were equitized and exchanged for 54.2% of the New Common Interests in View TopCo, LLC and (b) the Prepetition Convertible Notes Indenture (totaling approximately $222 million) were equitized in exchange for 10% of the New Common Interests in View TopCo, LLC. The remaining New Common Interests (35.8%) were issued to the Tranche C Commitment Parties (i.e., the Exit Lenders providing the Tranche C Commitment). The New Common Interests to be issued pursuant to the Plan have been issued pursuant to one of the following exemptions from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”): section 1145 of the Bankruptcy Code, which generally exempts from such registration requirements the issuance of certain securities
under a plan of reorganization, and section 4(a) of the Securities Act. Also on the Effective Date, the Debtors will continue to pay or dispute each General Unsecured Claim in the ordinary course of business as if the Chapter 11 Cases had never been commenced. On the Effective Date, all classes of preferred and common securities issued by the Company will be cancelled and thereafter deregistered, at which time Company will cease to be a publicly traded company.
There is no specific number of New Common Interests reserved for future issuance in respect of claims and interests filed and allowed under the Plan. The New Common Interests are not expected to be listed on any national securities exchange or registered with the Securities and Exchange Commission.
Unless otherwise specified, the treatment set forth in the Plan and Confirmation Order will be in full satisfaction of all claims against and interests in the Debtors, which will be discharged on the Effective Date.
Additional information regarding the classification and treatment of claims and interests can be found in Article II of the Plan (Administrative Claims, DIP Claims, Priority Claims, and Restructuring Expenses) and Article III of the Plan (Classification and Treatment of Claims and Interests).
The foregoing summaries of the Plan, the Confirmation Order and the Effective Date Notice do not purport to be complete and are qualified in their entirety by reference to the full text of the Plan, the Confirmation Order and the Effective Date Notice, respectively.
New Exit Facility
On the Effective Date, the Reorganized Debtors entered into the Credit Agreement, dated as of May 22, 2024, by and among View TopCo, LLC, View Operations, LLC, as the borrower (the “Borrower”), the lenders party thereto, and Cantor Fitzgerald Securities, as administrative agent and collateral agent (the “New Exit Facility”). The New Exit Facility will have a five-year maturity, subject to optional and mandatory repayment provisions. Loans under the New Exit Facility will bear interest equal to (x) SOFR plus an applicable margin or (y) the base rate plus an applicable margin. The applicable margin will be based on whether the Borrower elects to pay interest in cash or in-kind (“PIK Interest”) The applicable margin under the New Exit Facility will be (a) in respect of any period for which interest on all loans is timely paid in cash (and not as PIK Interest), 7.50% per annum, and (b) in respect of any period with respect to which the Borrower has made an election to pay interest as PIK Interest, 14.00% per annum.
The New Exit Facility will be secured by, in each case subject to certain limitations and exceptions set forth in the documents governing the New Exit Facility, substantially the same collateral package as secured the Prepetition Credit Agreement.
Settlement, Releases and Exculpations
The Plan incorporates an integrated compromise and settlement of claims with the parties to the RSA to achieve a beneficial and efficient resolution of the Chapter 11 Cases. Unless otherwise specified, the settlement, distributions, and other benefits provided under the Plan, including the releases and exculpation provisions included therein, are in full satisfaction of all claims and causes of action that could be asserted as set forth in Article VIII of the Plan.
The Plan provides releases and exculpations for the benefit of the Debtors, certain of the Debtors’ claimholders, holders of interests, other parties in interest and various parties related thereto, each in their capacity as such, from various claims and causes of action, as further set forth in Article VIII of the Plan (Settlement, Release, Injunction and Related Provisions).
Post-Emergence Governance and Management
On the Effective Date, except as contemplated by the Plan or the documents to be executed in connection with the Plan, each of the Reorganized Debtors will continue to exist after the Effective Date as a separate corporate entity pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the governance documents in effect prior to the Effective Date, except to the extent such New Corporate Governance Documents are amended under the Plan or otherwise. Specifically, on the Effective Date, View TopCo,
LLC, a Delaware limited liability company, was established and a new Limited Liability Company Agreement was executed, each pursuant to and in accordance with the Plan. The Company also converted into a limited liability company, View Operations, LLC, and became a wholly-owned subsidiary of View TopCo, LLC. In connection therewith, on the Effective Date, the Company adopted a new Limited Liability Company Agreement in accordance with the Plan, a copy of which is filed as Exhibit 3.1 hereto and incorporated by reference herein.
As of the Effective Date, the term of the current members of the existing board expired and the existing members of the board of each of the Company’s subsidiaries have resigned. There is no board of managers for View Operations, LLC, which is a member-managed LLC. In connection with the effectiveness of the Prepackaged Plan, Howard Lutnick, Josh Spellman, Parikshat Khanna, Scott Rechler, and Andrew Min have been appointed to the board of View TopCo, LLC. The officer of View TopCo, LLC will be Howard Lutnick. The officers of View Operations, LLC will be Dr. Rao Mulpuri (Chief Executive Officer), Bill Krause (Chief Legal Officer and Secretary), and Nitesh Trikha (Chief Product Officer). All other officers have been terminated in accordance with the Plan.
Share Information
As of November 9, 2023, View, Inc. had 4,067,035 shares of Class A common stock, par value $0.0001 per share, issued and outstanding. As disclosed above, on or around the Effective Date, each such Existing Equity Interests were cancelled.
Assets and Liabilities
Information regarding the assets and liabilities of the Debtors as of the most recent practicable date is hereby incorporated by reference to View, Inc.’s Quarterly Report on Form 10-Q for the period ended September 30, 2023 (the “Form 10-Q”), filed with the Securities and Exchange Commission on November 14, 2023. This information should not be viewed as indicative of future results. A copy of the Form 10-Q is filed as Exhibit 13.1 hereto and incorporated by reference herein.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information disclosed under Item 1.03 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03 to the extent required.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information disclosed under Item 1.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02 to the extent required.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information disclosed under Item 1.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03 to the extent required.
| Item 5.01 | Changes in Control of Registrant. |
On the Effective Date, pursuant to the Prepackaged Plan, the Existing Equity Interests together with any shares of restricted stock, restricted stock units, or any other right to receive equity in the Company, in each case, outstanding immediately prior to the Effective Date, were cancelled, discharged and of no force and effect. As of the Effective Date, the Company converted into a limited liability company, View Operations, LLC, and became a wholly-owned subsidiary of View TopCo, LLC.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensation Arrangements of Certain Officers. |
As of the Effective Date, the term of the current members of the existing board expired and the existing members of the board of each of the Company’s subsidiaries have resigned. There is no board of managers for View Operations, LLC, which is a member-managed LLC. In connection with the effectiveness of the Prepackaged Plan, Howard Lutnick, Josh Spellman, Parikshat Khanna, Scott Rechler, and Andrew Min. have been appointed to the board of View TopCo, LLC The officer of View TopCo, LLC will be Howard Lutnick. The officers of View Operations, LLC will be Dr. Rao Mulpuri (Chief Executive Officer), Bill Krause (Chief Legal Officer and Secretary), and Nitesh Trikha (Chief Product Officer). All other officers have been terminated in accordance with the Plan.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information disclosed under Item 1.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03 to the extent required.
| Item 8.01 | Other Events. |
The Company intends to file a Form 15 with the Securities and Exchange Commission (the “SEC”) deregistering the Company’s common stock pursuant to Rules 12g-4(a)(1) and 12h-3(b)(1)(i) under the Exchange Act. Upon filing the Form 15, the Company’s obligations to file certain reports and
forms with the SEC, including Forms 10-K, 10-Q and 8-K, will be immediately suspended. The Company intends to immediately cease filing any further periodic or current reports under the Exchange Act following the filing of the Form 15.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| ^ | Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request. |
Forward Looking Statements
This Current Report on Form 8-K, and certain materials View files with the SEC, as well as information included in oral statements or other written statements made or to be made by View, other than statements of historical fact, contain certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended, including but not limited to statements regarding the Company’s Chapter 11 Cases and emergence therefrom and the filing of the Form 15. These forward-looking statements are based on current expectations, estimates, assumptions, projections and management’s beliefs, that are subject to change. There can be no assurance that these forward-looking statements will be achieved; these statements are not guarantees of future performance and are subject to certain risks, uncertainties and other factors, many of which are beyond View’s control and are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. Factors that could cause actual outcomes and results to differ materially from such forward-looking statements include, but are not limited to, the bankruptcy process and View’s emergence from bankruptcy. View’s business is subject to a number of risks which are described more fully in View’s Annual Report on Form 10-K for the year ended December 31, 2022, as amended, its Quarterly Reports on Form 10-Q and in its other filings with the SEC. View undertakes no obligation to update forward-looking statements to reflect events or circumstances after the date hereof.
SIGNATURE
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.
| VIEW, INC. | ||||
| By: | /s/ Bill Krause | |||
| Name: | Bill Krause | |||
| Title: | Chief Legal Officer | |||
Dated: May 23, 2024
Exhibit 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| In re:
VIEW, INC., et al.,
Debtors.1 |
Chapter 11
Case No. 24-10692 (CTG)
(Jointly Administered) |
SECOND AMENDED JOINT PREPACKAGED CHAPTER 11 PLAN
OF REORGANIZATION OF VIEW, INC., AND ITS DEBTOR AFFILIATES
| Patrick J. Reilley (DE Bar No. 4451) Stacy L. Newman (DE Bar No. 5044) Michael E. Fitzpatrick (DE Bar No. 6797)
COLE SCHOTZ P.C.
500 Delaware Avenue, Suite 1410 Wilmington, Delaware 19801 Telephone: (302) 625-3131 Facsimile: (302) 325-3117 Email: preilly@coleschotz.com snewman@coleschotz.com mfitzpatrick@coleschotz.com |
Michael D. Sirota (admitted pro hac vice) David M. Bass (admitted pro hac vice) Daniel J. Harris (admitted pro hac vice) Matteo Percontino (admitted pro hac vice)
COLE SCHOTZ P.C.
Court Plaza North 25 Main Street Hackensack, New Jersey 07601 Telephone: (201) 489-3000 Facsimile: (201) 489-1536 Email: msirota@coleschotz.com dbass@coleschotz.com dharris@coleschotz.com mpercontino@coleschotz.com |
Counsel to the Debtors
and Debtors in Possession
Dated: May 19, 2024
| 1 | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: View, Inc. (5065), View Operating Corporation (4899), and Iotium, Inc. (4600). The Debtors’ corporate headquarters is 6280 America Center Drive, Suite 200, San Jose, California 95002. |
TABLE OF CONTENTS
| ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW | 1 | |||||
| A. |
Defined Terms | 1 | ||||
| B. |
Rules of Interpretation | 15 | ||||
| C. |
Computation of Time | 16 | ||||
| D. |
Governing Law | 16 | ||||
| E. |
Reference to Monetary Figures | 17 | ||||
| F. |
Reference to the Debtors or the Reorganized Debtors | 17 | ||||
| G. |
Nonconsolidated Prepackaged Plan | 17 | ||||
| H. |
Controlling Document | 17 | ||||
| I. |
Consultation, Information, Notice, and Consent Rights | 17 | ||||
| ARTICLE II. ADMINISTRATIVE CLAIMS, DIP CLAIMS, PRIORITY CLAIMS, AND RESTRUCTURING EXPENSES | 18 | |||||
| A. |
Administrative Claims | 18 | ||||
| B. |
DIP Claims | 18 | ||||
| C. |
Professional Fee Claims | 19 | ||||
| D. |
Priority Tax Claims | 20 | ||||
| E. |
Payment of Restructuring Expenses | 20 | ||||
| ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS | 20 | |||||
| A. |
Classification of Claims and Interests | 20 | ||||
| B. |
Treatment of Claims and Interests | 21 | ||||
| C. |
Special Provision Governing Unimpaired Claims | 25 | ||||
| D. |
Elimination of Vacant Classes | 26 | ||||
| E. |
Voting Classes, Presumed Acceptance by Non-Voting Classes | 26 | ||||
| F. |
Intercompany Interests | 26 | ||||
| G. |
Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code | 26 | ||||
| H. |
Controversy Concerning Impairment | 27 | ||||
| I. |
Subordinated Claims | 27 | ||||
| ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN | 27 | |||||
| A. |
General Settlement of Claims and Interests | 27 | ||||
| B. |
Restructuring Transactions | 27 | ||||
| C. |
Continued Corporate Existence | 29 | ||||
| D. |
Vesting of Assets in the Reorganized Debtors | 29 | ||||
| E. |
Cancellation of Existing Securities and Agreements | 30 | ||||
| F. |
Cancellation of Certain Existing Security Interests | 31 | ||||
| G. |
Sources of Consideration for Plan Distributions | 31 | ||||
| H. |
New Common Interests | 32 | ||||
| I. |
The New LLC Agreement | 32 | ||||
| J. |
The New Exit Facility Credit Agreement | 33 | ||||
i
| K. |
Corporate Action | 34 | ||||
| L. |
New Corporate Governance Documents | 35 | ||||
| M. |
Preservation of Causes of Action | 36 | ||||
| N. |
Certain Securities Law Matters | 37 | ||||
| O. |
Preservation of Net Operating Losses | 37 | ||||
| P. |
1146(a) Exemption from Certain Taxes and Fees | 38 | ||||
| Q. |
Director and Officer Liability Insurance | 38 | ||||
| R. |
Indemnification Obligations | 39 | ||||
| ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES | 39 | |||||
| A. |
Assumption and Rejection of Executory Contracts and Unexpired Leases | 39 | ||||
| B. |
Claims Based on Rejection of Executory Contracts or Unexpired Leases | 40 | ||||
| C. |
Cure of Defaults for Assumed Executory Contracts and Unexpired Leases | 40 | ||||
| D. |
Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases | 41 | ||||
| E. |
Insurance Policies | 41 | ||||
| F. |
Reservation of Rights | 42 | ||||
| G. |
Nonoccurrence of Effective Date | 42 | ||||
| H. |
Contracts and Leases Entered Into After the Petition Date | 42 | ||||
| ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS | 42 | |||||
| A. |
Distributions on Account of Claims Allowed as of the Effective Date | 42 | ||||
| B. |
Disbursing Agent | 43 | ||||
| C. |
Rights and Powers of Disbursing Agent | 43 | ||||
| D. |
Delivery of Distributions and Undeliverable or Unclaimed Distributions | 44 | ||||
| E. |
Manner of Payment | 46 | ||||
| F. |
Compliance with Tax Requirements | 46 | ||||
| G. |
Allocations | 47 | ||||
| H. |
No Postpetition Interest on Claims | 47 | ||||
| I. |
Foreign Currency Exchange Rate | 47 | ||||
| J. |
Setoffs and Recoupment | 47 | ||||
| K. |
Claims Paid or Payable by Third Parties | 48 | ||||
| ARTICLE VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS | 49 | |||||
| A. |
Disputed Claims Process | 49 | ||||
| B. |
Allowance of Claims | 50 | ||||
| C. |
Claims Administration Responsibilities | 50 | ||||
| D. |
Estimation of Claims and Interests | 50 | ||||
| E. |
Adjustment to Claims or Interests without Objection | 51 | ||||
| F. |
Disallowance of Claims or Interests | 51 | ||||
| G. |
No Distributions Pending Allowance | 51 | ||||
| H. |
Distributions After Allowance | 51 | ||||
ii
| ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS | 52 | |||||
| A. |
Discharge of Claims and Termination of Interests | 52 | ||||
| B. |
Release of Liens | 52 | ||||
| C. |
Releases by the Debtors | 53 | ||||
| D. |
Releases by the Releasing Parties | 54 | ||||
| E. |
Exculpation | 55 | ||||
| F. |
Injunction | 56 | ||||
| G. |
Protections Against Discriminatory Treatment | 57 | ||||
| H. |
Document Retention | 57 | ||||
| I. |
Reimbursement or Contribution | 58 | ||||
| ARTICLE IX. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN | 58 | |||||
| A. |
Conditions Precedent to the Effective Date | 58 | ||||
| B. |
Waiver of Conditions | 60 | ||||
| C. |
Effect of Failure of Conditions | 60 | ||||
| D. |
Substantial Consummation | 60 | ||||
| ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN | 61 | |||||
| A. |
Modification and Amendments | 61 | ||||
| B. |
Effect of Confirmation on Modifications | 61 | ||||
| C. |
Revocation or Withdrawal of Prepackaged Plan | 61 | ||||
| ARTICLE XI. RETENTION OF JURISDICTION | 61 | |||||
| ARTICLE XII. MISCELLANEOUS PROVISIONS | 64 | |||||
| A. |
Immediate Binding Effect | 64 | ||||
| B. |
Additional Documents | 64 | ||||
| C. |
Payment of Statutory Fees | 65 | ||||
| D. |
Statutory Committee and Cessation of Fee and Expense Payment | 65 | ||||
| E. |
Reservation of Rights | 65 | ||||
| F. |
Successors and Assigns | 65 | ||||
| G. |
Notices | 66 | ||||
| H. |
Term of Injunctions or Stays | 66 | ||||
| I. |
Entire Agreement | 67 | ||||
| J. |
Plan Supplement | 67 | ||||
| K. |
Severability of Prepackaged Plan Provisions | 67 | ||||
| L. |
Votes Solicited in Good Faith | 67 | ||||
| M. |
Closing of Chapter 11 Cases | 68 | ||||
| N. |
Waiver or Estoppel | 68 | ||||
| O. |
Creditor Default | 68 | ||||
iii
INTRODUCTION
View, Inc. and the above-captioned debtors and debtors in possession (collectively, the “Debtors”), propose this amended joint prepackaged chapter 11 plan of reorganization (as modified, amended, or supplemented from time to time, the “Prepackaged Plan” or the “Plan”) for the resolution of the outstanding claims against, and equity interests in, the Debtors. Although proposed jointly for administrative purposes, the Prepackaged Plan constitutes a separate Prepackaged Plan for each Debtor. Holders of Claims against, or Interests in, the Debtors may refer to the Disclosure Statement for a discussion of the Debtors’ history, businesses, assets, results of operations, historical financial information, projections of future operations, risk factors, a summary and analysis of this Prepackaged Plan, the releases and injunctions contained in the Prepackaged Plan, the Restructuring Transactions, and certain related matters. The Debtors are the proponents of the Prepackaged Plan within the meaning of section 1129 of the Bankruptcy Code.
ALL HOLDERS OF CLAIMS ENTITLED TO VOTE ON THE PREPACKAGED PLAN ARE ENCOURAGED TO READ THE PREPACKAGED PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PREPACKAGED PLAN.
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME, AND GOVERNING LAW
| A. | Defined Terms. |
As used in this Prepackaged Plan, capitalized terms have the meanings set forth below.
1. “Administrative Claim” refers to any right to payment constituting a cost or expense of administration incurred during the Chapter 11 Cases of a kind specified under section 503(b) of the Bankruptcy Code and entitled to priority under sections 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (i) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the estates and operating the businesses of the Debtors (such as wages, salaries, or commissions for services and payments for goods and other services and leased premises), (ii) Professional Fee Claims, and (iii) Restructuring Expenses.
2. “Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code as if such Entity was a debtor in a case under the Bankruptcy Code.
3. “Agents/Trustees” means, collectively, the DIP Agent, the New Exit Facility Agent, the Prepetition Term Loan Agent and the Prepetition Convertible Notes Trustee.
4. “Allowed” means, with respect to any Claim, except as otherwise provided herein: (a) a Claim allowed pursuant to the Prepackaged Plan or a Final Order; (b) a Claim that is scheduled by the Debtors as not contingent, not unliquidated, and not disputed, and for which no Proof of Claim, as applicable, has been timely Filed; or (c) a Claim that is evidenced by a Proof of Claim or a request for payment of an Administrative Claim, as applicable (or for which Claim a Proof of Claim is not required under the Prepackaged Plan, the Bankruptcy Code, or a Final Order);
1
provided that with respect to a Claim described in clauses (b) and (c) above, such Claim shall be Allowed only if and to the extent that with respect to such Claim no objection to the allowance thereof is interposed within the applicable period of time fixed by the Prepackaged Plan, the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, or such an objection is so interposed and the Claim has been Allowed by a Final Order; provided, further, that the Reorganized Debtors shall retain all claims and defenses with respect to Allowed Claims that are reinstated or otherwise Unimpaired pursuant to the Prepackaged Plan. To the extent applicable, any Claim that has been or is hereafter listed in the Schedules as contingent, unliquidated, or disputed, and for which no contrary or superseding Proof of Claim is or has been timely Filed, or that is not or has not been Allowed by a Final Order, is not considered Allowed and shall be expunged without further action by the Debtors and without further notice to any party or action, approval, or order of the Bankruptcy Court. Unless expressly waived by the Prepackaged Plan, the Allowed amount of Claims or Interests shall be subject to and shall not exceed the limitations or maximum amounts permitted by the Bankruptcy Code, including sections 502 or 503 of the Bankruptcy Code, to the extent applicable. Notwithstanding anything to the contrary herein, no Claim of any Entity subject to section 502(d) of the Bankruptcy Code shall be deemed Allowed unless and until such Entity pays in full the amount that it owes the applicable Debtor or Reorganized Debtor, as applicable.
5. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as amended from time to time.
6. “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware.
7. “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure promulgated under section 2075 of the Judicial Code and the general, local, and chambers rules of the Bankruptcy Court, each, as amended from time to time.
8. “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.
9. “Cantor” means CF Principal Investments, LLC or CFV Investments, LLC, and/or any Affiliates thereof.
10. “Cash” or “$” means cash in legal tender of the United States of America and cash equivalents, including bank deposits, checks, and other similar items.
11. “Cash Collateral” has the meaning ascribed to such term in section 363(a) of the Bankruptcy Code.
12. “Cause of Action” or “Causes of Action” shall refer to any action, claim, cross-claim, third-party claim, cause of action, controversy, dispute, demand, right, lien, indemnity, contribution, guaranty, suit, obligation, liability, loss, debt, fee or expense, damage, interest, judgment, cost, account, defense, remedy, offset, power, privilege, proceeding, license, and franchise of any kind or character whatsoever, known, unknown, foreseen or unforeseen, existing or hereafter arising, contingent or non-contingent, matured or unmatured, suspected or
2
unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively (including any alter ego theories), whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity or pursuant to any other theory of law (including under any state or federal securities laws). For the avoidance of doubt, Cause of Action also includes: (i) any right of setoff, counterclaim, or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) the right to object to Claims or Interests; (iii) any claim pursuant to section 362 or chapter 5 of the Bankruptcy Code; (iv) any claim or defense including fraud, mistake, duress, and usury and any other defenses set forth in section 558 of the Bankruptcy Code; and (v) any state law fraudulent transfer claim.
13. “Chapter 11 Cases” means (a) when used with reference to a particular Debtor, the case pending for that Debtor under chapter 11 of the Bankruptcy Code in the Bankruptcy Court and (b) when used with reference to all the Debtors, the procedurally consolidated chapter 11 cases pending for the Debtors in the Bankruptcy Court.
14. “Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the Debtors.
15. “Claims and Balloting Agent” means Kroll Restructuring Administration LLC, the notice, claims, and solicitation agent retained by the Debtors in the Chapter 11 Cases.
16. “Claims Register” means the official register of Claims and Interests maintained by the Claims and Balloting Agent.
17. “Class” means a class of Claims or Interests as set forth in Article III of the Prepackaged Plan pursuant to section 1122(a) of the Bankruptcy Code.
18. “CM/ECF” means the Bankruptcy Court’s Case Management and Electronic Case Filing system.
19. “Confirmation” means the Bankruptcy Court’s entry of the Confirmation Order on the docket of the Chapter 11 Cases.
20. “Confirmation Date” means the date upon which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases, within the meaning of Bankruptcy Rules 5003 and 9021.
21. “Confirmation Hearing” means the hearing to be held by the Bankruptcy Court on confirmation of the Prepackaged Plan and the adequacy of the Disclosure Statement, as such hearing may be continued from time to time.
22. “Confirmation Order” means the order of the Bankruptcy Court confirming the Prepackaged Plan pursuant to, inter alia, section 1129 of the Bankruptcy Code and approving the Disclosure Statement as containing, among other things, “adequate information” as required by section 1125 of the Bankruptcy Code.
23. “Consenting Creditors” has the meaning set forth in the Restructuring Support Agreement.
3
24. “Consenting Non-Debtor Guarantors” has the meaning set forth in the Restructuring Support Agreement.
25. “Consenting Creditors Advisors” means (a) Gibson, Dunn & Crutcher LLP; (b) Sidley Austin LLP; and (c) Young Conaway Stargatt & Taylor, LLP, as Delaware local counsel, and any other professional advisor engaged by the forgoing, in their capacity as advisors to the Consenting Creditors.
26. “Consummation” means the occurrence of the Effective Date.
27. “Cure” means all amounts, including an amount of $0.00, required to cure any monetary defaults under any Executory Contract or Unexpired Lease (or such lesser amount as may be agreed upon by the parties under an Executory Contract or Unexpired Lease) that is to be assumed by the Debtors pursuant to sections 365 or 1123 of the Bankruptcy Code, other than a default that is not required to be cured pursuant to section 365(b)(2) of the Bankruptcy Code.
28. “D&O Liability Insurance Policies” means all insurance policies of any of the Debtors for directors’, managers’, and officers’ liability existing as of the Petition Date (including any “tail policy”) and all agreements, documents, or instruments relating thereto.
29. “Debtors” means, collectively, View, Inc.; View Operating Corporation; and Iotium, Inc.
30. “Debtor Release” means the release set forth in Article VIII.C of the Prepackaged Plan.
31. “Definitive Documents” means the documents listed in Section 3 of the Restructuring Support Agreement, as modified, amended, or supplemented from time to time, in accordance with the Restructuring Support Agreement and Article I.I herein.
32. “Delaware Class Action Plaintiffs” means the plaintiffs in the action titled Siseles and Uvaydov v. Lutnick, et al. (Case No. 2023-1152-JTL, Del. Ch.).
33. “DIP Agent” means the administrative agent, collateral agent, or similar Entity under the DIP Facility.
34. “DIP Claims” means any and all Claims arising under, derived from, or based upon the DIP Facility and the DIP Loans, which DIP Claims shall have the priorities set forth in the DIP Facility Term Sheet and/or the DIP Credit Agreement, as applicable, and the DIP Orders.
35. “DIP Credit Agreement” means, if applicable, the debtor in possession credit agreement to govern the DIP Facility among, Parent as borrower, the Debtor guarantors as party thereto, and the lender parties thereto, as may be amended, amended and restated, supplemented, or modified from time to time.
36. “DIP Facility” means the senior secured debtor in possession financing facility for the DIP Loans, in the aggregate principal amount of $17.5 million, entered into on the terms and conditions set forth in the DIP Facility Documents.
4
37. “DIP Facility Documents” means any documents governing the DIP Facility that are entered into in accordance with the DIP Facility Term Sheet (or DIP Credit Agreement, as applicable), and the DIP Orders, and any amendments, modifications, and supplements thereto, and together with any related notes, certificates, agreements, security agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) related to or executed in connection therewith.
38. “DIP Facility Term Sheet” means the DIP Loan Term Sheet attached as Exhibit D to the Restructuring Support Agreement and the DIP Orders; provided, that following entry of each DIP Order by the Bankruptcy Court, the version attached to the applicable DIP Order shall control.
39. “DIP Lender” has the meaning set forth in the DIP Facility Term Sheet (or DIP Credit Agreement, as applicable).
40. “DIP Loans” means the loans provided under the DIP Facility.
41. “DIP Orders” means, together, the Interim DIP Order and the Final DIP Order.
42. “Disbursing Agent” means, as applicable, the Debtors, the Reorganized Debtors, or such other Entity or Entities selected by the Debtors or the Reorganized Debtors, as applicable, in each case, with the consent of the Required Consenting Creditors, to make or facilitate distributions pursuant to the Prepackaged Plan; provided that all non-Cash distributions on account of DIP Claims, Prepetition Term Loan Claims, or Prepetition Convertible Notes Claims shall be made pursuant to: (a) the distribution of the New Common Interests, including the Tranche C Commitment Equity, as set forth in Article IV.H of the Prepackaged Plan and (b) entry into the New Exit Facility Credit Agreement in accordance with the New Exit Facility Documents and Article IV.J of the Prepackaged Plan, provided further, that all distributions on account of the Prepetition Convertible Notes Claims may be made to, or at the direction of, the Prepetition Convertible Notes Claims, for distribution in accordance with the Prepackaged Plan following the procedures specified in the Prepetition Convertible Notes Documents.
43. “Disclosure Statement” means the related disclosure statement in respect of the Prepackaged Plan, including all exhibits and schedules thereto, as approved or ratified by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code, a copy of which is attached to the Restructuring Support Agreement as Exhibit E.
44. “Disputed” means, as to a Claim or an Interest, any Claim or Interest: (a) that is not Allowed; (b) that is not disallowed by the Prepackaged Plan, the Bankruptcy Code, or a Final Order, as applicable; (c) as to which a dispute is being adjudicated by a court of competent jurisdiction in accordance with non-bankruptcy Law; (d) that is Filed in the Bankruptcy Court and not withdrawn, as to which a timely objection or request for estimation has been Filed; and (e) with respect to which a party in interest has Filed a Proof of Claim or otherwise made a written request to a Debtor for payment, without any further notice to or action, order, or approval of the Bankruptcy Court.
5
45. “Distribution Date” means, except as otherwise set forth herein, the date or dates determined by the Debtors or the Reorganized Debtors, on or after the Effective Date, with the first such date occurring on or as soon as is reasonably practicable after the Effective Date, upon which the Disbursing Agent shall make distributions to Holders of Allowed Claims and Interests entitled to receive distributions under the Prepackaged Plan.
46. “Distribution Record Date” means the record date for purposes of making distributions under the Prepackaged Plan on account of Allowed Claims and Interests except with respect to public securities, which date shall be on or as soon as is reasonably practicable after the Effective Date, subject to the consent of the Required Consenting Creditors, and except with respect to the Prepetition Convertible Notes, the Holders of which shall receive a distribution in accordance with Article VI of the Prepackaged Plan.
47. “DTC” means The Depository Trust Company.
48. “Effective Date” means, as to the applicable Debtor, the date that is the first Business Day on which (a) no stay of the Confirmation Order is in effect and (b) all conditions precedent to the occurrence of the Effective Date set forth in Article IX.A of the Prepackaged Plan have been satisfied or waived in accordance with Article IX.B of the Prepackaged Plan. Any action to be taken on the Effective Date may be taken on or as soon as reasonably practicable thereafter, subject to the consent of the Required Consenting Creditors.
49. “Entity” has the meaning set forth in section 101(15) of the Bankruptcy Code, including “person” (as defined in section 101(41) of the Bankruptcy Code) and “governmental unit” (as defined in section 101(27) of the Bankruptcy Code).
50. “Estate” means as to each Debtor, the estate created for such Debtor in its Chapter 11 Case pursuant to section 541 of the Bankruptcy Code upon the commencement of such Debtor’s Chapter 11 Case.
51. “Exchange Act” means the Securities Exchange Act of 1934, 15 U.S.C. § 78a, et seq., as amended from time to time.
52. “Exculpated Parties” means collectively, and in each case in its capacity as such, to the fullest extent permissible pursuant to applicable law, including section 1125(e) of the Bankruptcy Code: (a) the Debtors and the Debtors’ current and former directors and officers; (b) any statutory committee appointed in the Chapter 11 Cases and the members thereof (solely in their capacities as such), (c) the Estate professionals, and, with respect to each of the foregoing Persons in clauses (a) and (b), solely to the extent they are or have been Estate fiduciaries; provided that notwithstanding the foregoing, neither Vidul Prakash nor Saurabh Agarwal shall be an Exculpated Party.
53. “Executory Contract” means a contract to which one or more of the Debtors is a party and that is subject to assumption or rejection under section 365 or 1123 of the Bankruptcy Code.
54. “Existing Equity Interests” means any Interests in Parent, including (a) shares of the class of common stock of Parent, which is traded and quoted on Nasdaq under the symbol “VIEW,” that existed immediately prior to the Effective Date; (b) warrants for the purchase of common stock of Parent, including those traded and quoted on Nasdaq under the symbol
6
“VIEWW,” that existed immediately prior to the Effective Date; (c) any restricted stock units of Parent, whether vested or unvested and those that vest upon a “change of control” transaction; (d) the exercise of any stock options in Parent in accordance with their terms prior to the Effective Date; (e) and any Subordinated Interests.
55. “Exit Lenders” has the meaning set forth in the New Exit Facility Term Sheet.
56. “Federal Judgment Rate” means the federal judgment rate in effect as of the Petition Date.
57. “File,” “Filed,” or “Filing” means file, filed, or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Cases.
58. “Final DIP Order” means any order approving the DIP Facility and related relief on a final basis.
59. “Final Order” means an order or judgment of the Bankruptcy Court, or court of competent jurisdiction with respect to the subject matter that has not been reversed, stayed, modified, or amended, as entered on the docket in any Chapter 11 Case or the docket of any court of competent jurisdiction, and as to which the time to appeal, or seek certiorari or move for a new trial, reargument, or rehearing has expired and no appeal or petition for certiorari or other proceedings for a new trial, reargument, or rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be timely filed has been withdrawn or resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought or the new trial, reargument, or rehearing will have been denied, resulted in no stay pending appeal of such order, or has otherwise been dismissed with prejudice; provided that the possibility that a motion under Rules 59 or 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed with respect to such order will not preclude such order from being a Final Order.
60. “General Unsecured Claim” means any Claim against any of the Debtors that is not (a) paid in full prior to the Effective Date pursuant to an order of the Bankruptcy Court, (b) an Administrative Claim, (c) a DIP Claim, (d) a Secured Claim, (e) an Other Secured Claim, (f) a Priority Tax Claim, (g) an Other Priority Claim, (h) a Prepetition MDA Loan Claim, (i) a Prepetition Term Loan Claim, (j) a Prepetition Convertible Notes Claim, (k) an Intercompany Claim, or (l) a Subordinated Interest.
61. “Governance Term Sheet” means the term sheet attached to the Governance Term Sheet attached as Exhibit F to the Restructuring Support Agreement.
62. “Governing Body” means, in each case in its capacity as such, the board of directors, board of managers, manager, general partner, special committee, or such similar governing body of any of the Debtors or the Reorganized Debtors, as applicable.
63. “Governmental Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code.
7
64. “Holder” means an Entity holding a Claim against or an Interest in a Debtor, as applicable.
65. “Impaired” means with respect to a Class of Claims or Interests, a Class of Claims or Interests that is impaired within the meaning of section 1124 of the Bankruptcy Code.
66. “Intercompany Claim” means any Claim against a Debtor or an Affiliate of a Debtor held by another Debtor or an Affiliate of a Debtor.
67. “Intercompany Interest” means an Interest in a Debtor held by another Debtor.
68. “Interest” means, collectively, the shares (or any class thereof), common stock, preferred stock, limited liability company interests, and any other equity, ownership, or profits interests of any Company Party, and options, warrants, rights, or other securities or agreements to acquire or subscribe for, or which are convertible into the shares (or any class thereof) of, common stock, preferred stock, limited liability company interests, or other equity, ownership, or profits interests of any Company Party (in each case whether or not arising under or in connection with any employment agreement), including the Existing Equity Interests.
69. “Interim DIP Order” means one or more orders entered on an interim basis approving the DIP Facility and the DIP Facility Documents and authorizing the Debtors’ use of Cash Collateral.
70. “Judicial Code” means title 28 of the United States Code, 28 U.S.C. §§ 1–4001, as amended from time to time.
71. “Law” means any federal, state, 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).
72. “Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code.
73. “Mehedi Action” means the class action proceeding captioned as Mehedi v. View, Inc. f/k/a CF Finance Acquisition Corp. II, et al. (No. 5:21-cv-06374, N.D. Cal.).
74. “Mehedi Action Plaintiffs” means Lead Plaintiff Stadium Capital LLC, Plaintiff David Sherman, and all members of the putative class in the class action proceeding captioned as Mehedi v. View, Inc. f/k/a CF Finance Acquisition Corp. II, et al. (No. 5:21-cv-06374, N.D. Cal.), each as defined therein, including to the extent such terms may be amended or modified.
75. “Nasdaq” means Nasdaq Stock Market, together with any successors thereto.
76. “New Board” means the board of directors or members of the applicable Governing Bodies of the Reorganized Debtors, in accordance with the Governance Term Sheet.
8
77. “New Common Interests” depending on the transaction structure, new common interests in New TopCo to be issued on the Effective Date or as otherwise permitted pursuant to the New Corporate Governance Documents.
78. “New Corporate Governance Documents” refers to the documents providing for the corporate governance of the Reorganized Debtors, including the Governance Term Sheet, the New LLC Agreement, and other charters, bylaws, operating agreements, or other organizational documents or stockholders’ agreements, as applicable, which shall be consistent with the Restructuring Support Agreement (including the Governance Term Sheet), the Prepackaged Plan, and section 1123(a)(6) of the Bankruptcy Code (as applicable).
79. “New Exit Facility” means that certain new exit facility to be entered into by certain of the Company Parties and the lenders party thereto on the Effective Date pursuant to the New Exit Facility Term Sheet.
80. “New Exit Facility Agent” means the agent under the New Exit Facility.
81. “New Exit Facility Credit Agreement” means the credit agreement governing the New Exit Facility, a copy of which will be filed in the Plan Supplement, which shall be in accordance with the New Exit Facility Term Sheet (including the New Exit Facility Commitment).
82. “New Exit Facility Documents” means, collectively, the New Exit Facility Term Sheet, the New Exit Facility Credit Agreement, and all other agreements, documents, and instruments evidencing or securing the New Exit Facility, to be delivered or entered into in connection therewith (including any guarantee agreements, pledge and collateral agreements, intercreditor agreements, subordination agreements, commitment letters, term sheets, fee letters, and other security documents), each of which shall be consistent in all material respects with the Restructuring Support Agreement.
83. “New Exit Facility Non-Debtor Guarantees” means those certain secured guarantees on the New Exit Facility, to be provided by the Consenting Non-Debtor Guarantors as guarantors in favor of one or more of the Company Parties as obligor of the obligations under the New Exit Facility from and after the Effective Date, which guarantees and related liens and security interests (together with any amendments thereto) shall be in form and substance reasonably acceptable to the Consenting Non-Debtor Guarantors (which consent shall not be unreasonably withheld).
84. “New Exit Facility Term Sheet” means the term sheet attached as Exhibit E to the Restructuring Support Agreement.
85. “New LLC Agreement” means the limited liability company agreement governing the New Common Interests for the Reorganized Debtors.
86. “New TopCo” means, depending on the transaction structure, Reorganized Parent or a newly formed holding company holding 100 percent of the equity interest in Reorganized Parent, in accordance with the Prepackaged Plan, the Governance Term Sheet, and the Restructuring Transactions Memorandum, each as applicable.
9
87. “Other Priority Claim” means any unsecured Claim, other than an Administrative Claim or a Priority Tax Claim, entitled to priority in right of payment under section 507(a) of the Bankruptcy Code.
88. “Other Secured Claim” means any Secured Claim other than a Prepetition Term Loan Claim or Prepetition MDA Loan Claims.
89. “Parent” means View, Inc.
90. “Person” has the meaning set forth in section 101(41) of the Bankruptcy Code.
91. “Petition Date” means the date on which the Debtors commenced the Chapter 11 Cases.
92. “Plan Distribution” means a payment or distribution of consideration to Holders of Allowed Claims and Allowed Interests under the Prepackaged Plan.
93. “Plan Supplement” means the compilation of documents and forms of documents, term sheets, agreements, schedules, and exhibits to the Prepackaged Plan that, subject to the terms and conditions of this Agreement, an initial draft of which will be filed by the Debtors with the Bankruptcy Court prior to the Confirmation Hearing, and any additional documents filed prior to the Effective Date as amendments to the Plan Supplement. The Plan Supplement will include, without limitation, the following documents: the Restructuring Transaction Memorandum, the New Exit Facility Credit Agreement, the New LLC Agreement, the Schedule of Retained Causes of Action, the identity of the members of the New Board and any officers of the Reorganized Debtors, and the Schedule of Rejected Executory Contracts and Unexpired Leases.
94. “Prepackaged Plan” means this joint chapter 11 plan of reorganization, the Plan Supplement, and all exhibits and schedules annexed hereto or referenced herein, in each case, as may be amended, supplemented, or otherwise modified from time to time.
95. “Prepetition Convertible Notes” means the 6.00% Cash / 9.00% Convertible Senior PIK Toggle Notes due 2027 outstanding under the Prepetition Convertible Notes Indenture
96. “Prepetition Convertible Notes Claim” means any Claim for obligations arising under the Prepetition Convertible Notes Indenture, including any Claims in respect of all principal amounts outstanding, interest, fees, redemption premiums, expenses, costs and other charges arising thereunder or related thereto, including postpetition interest, as applicable.
97. “Prepetition Convertible Notes Documents” means the Prepetition Convertible Notes Indenture and all related agreements and documents, including, without limitation, any agreements executed by any of the Debtors or their Affiliates in connection with the Prepetition Convertible Notes Indentures, including the Prepetition Convertible Notes.
98. “Prepetition Convertible Notes Indenture” means that certain Indenture, dated as of October 26, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time), by and among Parent, as issuer, and the Prepetition Convertible Notes Trustee.
10
99. “Prepetition Convertible Notes Trustee” means Wilmington Trust, National Association, in its capacity as trustee under the Prepetition Convertible Notes Indenture.
100. “Prepetition Convertible Notes Trustee Charging Lien” means any Lien or priority of payment to which the Prepetition Convertible Notes Trustee is entitled under the Prepetition Convertible Notes Indentures and/or the Prepetition Convertible Notes Documents, against distributions to be made to Holders of Prepetition Convertible Notes Claim, for any payment of any Prepetition Convertible Notes Indenture Trustee Fees.
101. “Prepetition Convertible Notes Trustee Fees” means all reasonable compensation, costs, advances, fees, expenses, disbursements, and claims for indemnity, subrogation, and contribution, including, without limitation, reasonable and documented attorneys’ and agents’ fees, expenses, and disbursements, incurred by or owed to the Prepetition Convertible Notes Trustee, solely to the extent payable under the Prepetition Convertible Notes Documents, whether before or after the Petition Date and the Effective Date.
102. “Prepetition Credit Agreement” means that certain credit agreement, dated as of October 16, 2023 (as amended, modified, or otherwise supplemented from time to time) by and among Parent, as borrower, the Prepetition Term Loan Agent, as agent, and the Prepetition Term Loan Lenders thereunder.
103. “Prepetition MDA Loan” means loans under that certain Amended and Restated Loan Agreement, dated as of October 20, 2020, between Parent and the Mississippi Developmental Authority.
104. “Prepetition MDA Loan Claims” means any Claim for obligations arising under the Prepetition MDA Loan, including any Claims in respect of all principal amounts outstanding, interest, fees, redemption premiums, expenses, costs and other charges arising thereunder or related thereto, including postpetition interest, as applicable.
105. “Prepetition Term Loan Agent” means Cantor Fitzgerald Securities, in its capacity as administrative and collateral agent under the Prepetition Credit Agreement.
106. “Prepetition Term Loan Claims” means any Claim for obligations arising under the Prepetition Credit Agreement, including any Claims in respect of all principal amounts outstanding, interest, fees, makewholes, prepayment premiums, redemption premiums, expenses, costs and other charges arising thereunder or related thereto, including postpetition interest, as applicable.
107. “Priority Tax Claim” means any Claim of a Governmental Unit of the kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
108. “Pro Rata” means the proportion that an Allowed Claim or an Allowed Interest in a particular Class bears to the aggregate amount of Allowed Claims or Allowed Interests in that Class, unless otherwise indicated.
11
109. “Professional” means an Entity: (a) employed pursuant to a Bankruptcy Court order in accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or on the Confirmation Date, pursuant to sections 327, 328, 329, 330, 331, and 363 of the Bankruptcy Code; or (b) awarded compensation and reimbursement by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.
110. “Professional Fee Amount” means the aggregate amount of Professional Fee Claims and other unpaid fees and expenses that the Professionals estimate they have incurred or will incur in rendering services to the Debtors as set forth in Article II.C of the Prepackaged Plan.
111. “Professional Fee Claim” means a Claim by a Professional seeking an award by the Bankruptcy Court of compensation for services rendered or reimbursement of expenses incurred through and including the Confirmation Date under sections 330, 331, 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code.
112. “Professional Fee Account” means an account to be funded by the Debtors with Cash on the Effective Date in an amount equal to the Professional Fee Amount.
113. “Proof of Claim” means a proof of Claim Filed against any of the Debtors in the Chapter 11 Cases.
114. “Reinstate,” “Reinstated,” or “Reinstatement” means with respect to Claims and Interests, that the Claim or Interest shall be left Unimpaired under the Prepackaged Plan, and that the holder’s legal, equitable, and contractual rights on account of such Claim or Interest shall remain unaltered by Consummation in accordance with section 1124(1) of the Bankruptcy Code.
115. “Rejected Executory Contracts and Unexpired Leases Schedule” means a schedule of Executory Contracts and Unexpired Leases to be rejected by the Debtors pursuant to the Prepackaged Plan, which schedule shall be included in the Plan Supplement, as the same may be amended, modified, or supplemented from time to time.
116. “Related Party” means, collectively, current and former directors, managers, officers, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, predecessors, participants, successors, assigns, subsidiaries, affiliates, managed accounts or funds, partners, limited partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, heirs, executors, and assigns, and other professionals, in each case solely in their capacities as such; provided that, notwithstanding the foregoing, neither Vidul Prakash and Saurabh Agarwal shall not be considered a Related Party or a Released Party.
117. “Released Parties” means, collectively, and in each case in its capacity as such: (a) each Debtor; (b) each Reorganized Debtor; (c) the Agents/Trustees; (d) the Consenting Creditors; (e) the DIP Lenders; (f) the DIP Agent; (g) each current and former Affiliate of each Entity in the foregoing clause (a) through (f); and (h) each Related Party of each Entity in clause (a) through (g); provided that any Holder of a Claim or Interest that affirmatively opts out of the releases provided by the Prepackaged Plan by checking the box on the applicable ballot or Notice of Non-Voting Status indicating that they opt not to grant the releases provided in the Prepackaged Plan shall not be a “Released Party”; and provided, further, that (i) Vidul Prakash and (ii) Saurabh Agarwal shall not be a “Released Party.”
12
118. “Releasing Parties” means, collectively, and in each case in its capacity as such: (a) the Agents/Trustees; (b) the Consenting Creditors; (c) the DIP Lenders; (d) the DIP Agent; (e) the Delaware Class Action Plaintiffs; (f) all Holders of Claims that vote to accept the Prepackaged Plan; (g) all Holders of Claims or Interests that are presumed to accept the Prepackaged Plan who do not affirmatively opt out of the releases provided by Article VIII.D of the Prepackaged Plan by checking the box on the applicable Notice of Non-Voting Status indicating that they opt not to grant the releases provided by Article VIII.D of the Prepackaged Plan; (h) all Holders of Claims or Interests that abstain from voting on the Prepackaged Plan and who do not affirmatively opt out of the releases provided by Article VIII.D of the Prepackaged Plan by checking the box on the applicable ballot indicating that they opt not to grant the releases provided in the Prepackaged Plan; (i) all other Holders of Claims or Interests that vote to reject the Prepackaged Plan or are deemed to reject the Prepackaged Plan and who do not affirmatively opt out of the releases provided by Article VIII.D of the Prepackaged Plan by checking the box on the applicable ballot or Notice of Non-Voting Status, as applicable, indicating that they opt not to grant the releases provided by Article VIII.D of the Prepackaged Plan; (j) each current and former Affiliate of each Entity in the foregoing clause (a) through (i); and (k) each Related Party of each Entity in clause (a) through this clause (k), provided with respect to (k) hereof, a Related Party is only a Releasing Party with respect to claims that it could have properly asserted on behalf of the Entities identified in (a) through (j) hereof; and provided further that, for the avoidance of doubt, the Mehedi Action Plaintiffs are not Releasing Parties.
119. “Reorganized Debtors” means collectively, New TopCo and/or Reorganized Parent and each other Debtor, any successor or assign thereto, by merger, consolidation, or otherwise, on and after the Effective Date.
120. “Reorganized Parent” means Parent, as reorganized on the Effective Date in accordance with the Prepackaged Plan, the Governance Term Sheet, and the Restructuring Transactions Memorandum, each as applicable.
121. “Required Consenting Creditors” means, collectively, Cantor and RXR.
122. “Restructuring Expenses” means the prepetition and postpetition reasonable and documented fees and expenses of the Consenting Creditors Advisors, not previously paid by the Debtors, in each case, in accordance with the engagement letters of such professionals, the DIP Orders, the Restructuring Support Agreement, and which, without further order of, or application to the Bankruptcy Court by such professionals, including, the requirement for the filing of retention applications, fee applications, or any applications in the Chapter 11 Cases, shall be Allowed as an Administrative Claim upon incurrence and shall not be subject to any offset, defense, counter-claim, reduction, or credit.
123. “Restructuring Support Agreement” means that certain restructuring support agreement, including all attachments thereto, to which the Debtors are a party, a copy of which is attached to this Prepackaged Plan as Exhibit A.
13
124. “Restructuring Transactions” means any transaction and any actions as may be necessary or appropriate to effect a restructuring of the Debtors’ respective businesses or a corporate restructuring of the overall corporate structure of the Debtors on the terms set forth in this Prepackaged Plan, the issuance of all securities, notes, instruments, agreements, certificates, and other documents required to be issued or executed pursuant to the Prepackaged Plan, one or more inter-company mergers, consolidations, amalgamations, arrangements, continuances, restructurings, conversions, dissolutions, transfers, liquidations, or other corporate transactions, as described in Article IV.B of the Prepackaged Plan, in each case, in form and substance consistent with the terms of the Restructuring Support Agreement and the consent rights contained therein.
125. “Restructuring Transaction Memorandum” means the document setting forth the sequence of certain Restructuring Transactions, as the same may be modified or supplemented from time to time.
126. “RXR” means RXR FP GP LLC.
127. “RXR Lender” means RXR, RXR FP Investor LP, RXR FP Investor II LP, RXR FP Investor III LP, RXR FP Investor IV LP, and/or the foregoing parties’ Affiliates.
128. “Schedule of Retained Causes of Action” means the schedule of certain Causes of Action of the Debtors that are not released, waived, or transferred pursuant to the Prepackaged Plan, as the same may be amended, modified, or supplemented from time to time.
129. “SEC” means the United States Securities and Exchange Commission.
130. “Section 1125(e) Exculpation Parties” means, collectively, and in each case in its capacity as such: (a) each of the Exculpated Parties; (b) the current and former directors and officers of any of the Debtors; (c) each Consenting Creditor; (d) each DIP Lender; (e) each Exit Lender; (f) each Agent/Trustee; and (g) with respect to each of the foregoing parties, the Related Parties thereof; provided that notwithstanding the foregoing, neither Vidul Prakash nor Saurabh Agarwal shall be a Section 1125(e) Exculpation Party.
131. “Secured Claim” means a Claim: (a) secured by a valid, perfected, and enforceable Lien on collateral to the extent of the value of such collateral, as determined in accordance with section 506(a) of the Bankruptcy Code or (b) subject to a valid right of setoff pursuant to section 553 of the Bankruptcy Code to the extent of the amount subject to setoff.
132. “Securities Act” means the Securities Act of 1933, as amended, 15 U.S.C. §§ 77a–77aa, or any similar Law, as now in effect or hereafter amended, and the rules and regulations promulgated thereunder.
133. “Security” means any security, as defined in section 2(a)(1) of the Securities Act or section 101(49) of the Bankruptcy Code.
134. “Solicitation Materials” means the solicitation materials provided by the Claims and Balloting Agent to the parties entitled to vote to accept or reject the Prepackaged Plan.
135. “Solicitation Procedures Motion” means the motion Filed by the Debtors seeking, among other things, entry of an order approving the solicitation procedures, conditional approval of Disclosure Statement, and scheduling the Confirmation Hearing to consider final approval of the Disclosure Statement and a hearing to consider Confirmation of the Prepackaged Plan.
14
136. “Subordinated Interest” means any Claim against any Debtor subject to subordination under section 510(b) of the Bankruptcy Code, whether by operation of law or contract. For the avoidance of doubt, Subordinated Interests include any Claims against any Debtor asserted by the plaintiffs in the following lawsuits: (a) the Mehedi Action, (b) Jacobson v. Mulpuri, et al. (No. 1:21CV01719, D. Del.); (c) Damidi v. Mulpuri, et al. (No. 1:22CV00675, D. Del.); (d) Monteleone v. Mulpuri, et al. (No. 1:22-cv-00980, D. Del.); and (e) Roberts v. Mulpuri, et al. (No. 5:23-cv-02248, N.D. Cal.); and (f) Siseles and Uvaydov v. Lutnick, et al., (Case No. 2023-1152-JTL, Del. Ch.).
137. “Tranche C Commitment” has the meaning provided in the New Exit Facility Term Sheet.
138. “Tranche C Commitment Date” means the date that is thirty (60) days following the Petition Date.
139. “Tranche C Commitment Parties” means the Exit Lenders providing the Tranche C Commitment.
140. “Tranche C Commitment Equity” means 35.8 percent of the outstanding New Common Interests on a fully diluted basis as of the Effective Date. For the avoidance of doubt, the Tranche C Commitment Equity shall not dilute the 54.2 percent of New Common Interests issued to the Holders of Allowed Prepetition Term Loans on the Plan Effective Date or the 10 percent of New Common Interests provided to the Holders of Allowed Prepetition Convertible Notes Claims.
141. “Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under section 365 or 1123 of the Bankruptcy Code.
142. “Unimpaired” means with respect to a Claim, Interest, or Class of Claims or Interests, not “impaired” within the meaning of sections 1123(a)(4) and 1124 of the Bankruptcy Code.
143. “Unsecured Claim” means any Claim that is not a Secured Claim.
| B. | Rules of Interpretation. |
For purposes of this Prepackaged Plan: (1) 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 the neuter gender; (2) unless otherwise specified, any reference herein to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; provided that nothing in this clause (2) shall affect any parties’ consent rights over any of the Definitive Documents or any amendments thereto, as provided for in the Restructuring Support Agreement; (3) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit, whether or not Filed, having been Filed or to be Filed shall mean that document, schedule, or exhibit, as it may thereafter be amended, modified, or supplemented in accordance with the Prepackaged Plan or Confirmation Order, as applicable;
15
(4) any reference to an Entity as a Holder of a Claim or Interest includes that Entity’s successors and assigns; (5) unless otherwise specified, all references herein to “Articles” are references to Articles hereof or hereto; (6) unless otherwise specified, all references herein to exhibits are references to exhibits in the Plan Supplement; (7) unless otherwise specified, the words “herein,” “hereof,” and “hereto” refer to the Prepackaged Plan in its entirety rather than to a particular portion of the Prepackaged Plan; (8) subject to the provisions of any contract, certificate of incorporation, by-law, instrument, release, or other agreement or document entered into in connection with the Prepackaged Plan, the rights and obligations arising pursuant to the Prepackaged Plan shall be governed by, and construed and enforced in accordance with the applicable federal Law, including the Bankruptcy Code and Bankruptcy Rules; (9) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Prepackaged Plan; (10) unless otherwise specified herein, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; (11) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be; (12) all references to docket numbers of documents Filed in the Chapter 11 Cases are references to the docket numbers under the Bankruptcy Court’s CM/ECF system; (13) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time, and as applicable to the Chapter 11 Cases, unless otherwise stated; (14) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, and shall be deemed to be followed by the words “without limitation”; (15) references to “Proofs of Claim,” “holders of Claims,” “Disputed Claims,” and the like shall include “Proofs of Interest,” “holders of Interests,” “Disputed Interests,” and the like, as applicable; (16) any immaterial effectuating provisions may be interpreted by the Reorganized Debtors in such a manner that is consistent with the overall purpose and intent of the Prepackaged Plan all without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity; and (17) all references herein to consent, acceptance, or approval may be conveyed by counsel for the respective parties that have such consent, acceptance, or approval rights, including by electronic mail.
| C. | Computation of Time. |
Unless otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed herein. If the date on which a transaction may occur pursuant to the Prepackaged Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day. Any action to be taken on the Effective Date may be taken on or as soon as reasonably practicable after the Effective Date.
| D. | Governing Law. |
Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated herein, the laws of the State of Delaware, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements, documents, instruments, or contracts executed or entered into in connection with the Plan (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control);
16
provided that corporate or limited liability company governance matters relating to the Debtors, as applicable, not incorporated or formed (as applicable) in the State of Delaware shall be governed by the laws of the state of incorporation or formation (as applicable) of the applicable Debtor.
| E. | Reference to Monetary Figures. |
All references in the Prepackaged Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided herein.
| F. | Reference to the Debtors or the Reorganized Debtors. |
Except as otherwise specifically provided in the Prepackaged Plan to the contrary, references in the Prepackaged Plan to the Debtors or the Reorganized Debtors shall mean the Debtors and the Reorganized Debtors, as applicable, to the extent the context requires.
| G. | Nonconsolidated Prepackaged Plan. |
Although for purposes of administrative convenience and efficiency this Prepackaged Plan has been filed as a joint plan for each of the Debtors and presents together Classes of Claims against and Interests in the Debtors, the Prepackaged Plan does not provide for the substantive consolidation of any of the Debtors.
| H. | Controlling Document. |
In the event of an inconsistency between the Prepackaged Plan, on the one hand, and (i) the Disclosure Statement or (ii) the Plan Supplement, on the other, the terms of the Prepackaged Plan shall control in all respects. In the event of an inconsistency between the Confirmation Order and the Prepackaged Plan, the Disclosure Statement, or the Plan Supplement, the Confirmation Order shall control.
| I. | Consultation, Information, Notice, and Consent Rights. |
Notwithstanding anything herein to the contrary, any and all consultation, information, notice, and consent rights of the parties to the Restructuring Support Agreement set forth in the Restructuring Support Agreement (including the exhibits thereto) with respect to the form and substance of this Prepackaged Plan, all exhibits to the Prepackaged Plan, and the Plan Supplement, and all other Definitive Documents, including any amendments, restatements, supplements, or other modifications to such agreements and documents, and any consents, waivers, or other deviations under or from any such documents, shall be incorporated herein by this reference (including to the applicable definitions in Article I.A hereof) and fully enforceable as if stated in full herein.
Failure to reference the rights referred to in the immediately preceding paragraph as such rights relate to any document referenced in the Restructuring Support Agreement shall not impair such rights and obligations.
17
Solely with respect to any consultation, information, notice, or consent rights in the Prepackaged Plan, in the event of any inconsistency between the Prepackaged Plan and the Restructuring Support Agreement, the terms of the Restructuring Support Agreement shall control.
ARTICLE II.
ADMINISTRATIVE CLAIMS, DIP CLAIMS, PRIORITY
CLAIMS, AND RESTRUCTURING EXPENSES
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, Professional Fee Claims, Restructuring Expenses, and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set forth in Article III hereof.
| A. | Administrative Claims. |
Subject to the provisions of sections 328, 330(a), and 331 of the Bankruptcy Code, unless otherwise agreed to by the Holder of an Allowed Administrative Claim and the Debtors or the Reorganized Debtors, as applicable, or otherwise provided for under the Prepackaged Plan or the Restructuring Support Agreement, each Holder of an Allowed Administrative Claim (other than holders of Professional Fee Claims and Claims for fees and expenses pursuant to section 1930 of chapter 123 of title 28 of the United States Code) will receive in full and final satisfaction of its Administrative Claim an amount of Cash equal to the amount of such Allowed Administrative Claim in accordance with the following: (1) if an Administrative Claim is Allowed on or prior to the Effective Date, on the Effective Date or as soon as reasonably practicable thereafter (or, if not then due, when such Allowed Administrative Claim is due or as soon as reasonably practicable thereafter); (2) if such Administrative Claim is not Allowed as of the Effective Date, no later than thirty (30) days after the date on which an order allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter; (3) if such Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary course of their business after the Petition Date in accordance with the terms and conditions of the particular transaction giving rise to such Allowed Administrative Claim without any further action by the holders of such Allowed Administrative Claim; (4) at such time and upon such terms as may be agreed upon by such holder and the Debtors or the Reorganized Debtors, as applicable, and in each case, with the consent of the Required Consenting Creditors; or (5) at such time and upon such terms as set forth in an order of the Bankruptcy Court.
| B. | DIP Claims. |
On the Effective Date, in full and final satisfaction of all Allowed DIP Claims, including, for the avoidance of doubt, all Claims in respect of the outstanding principal amount of DIP Loans and any accrued but unpaid interest thereon, shall, except to the extent that a holder of an Allowed DIP Claim agrees to a less favorable treatment, at the option of the Required Consenting Creditors (with consent of the Debtors or the Reorganized Debtors), (i) receive payment in full in Cash, or (ii) be rolled into the New Exit Facility.
18
| C. | Professional Fee Claims. |
1. Final Fee Applications and Payment of Professional Fee Claims.
All requests for payment of Professional Fee Claims for services rendered and reimbursement of expenses incurred prior to the Confirmation Date must be Filed no later than thirty (30) days after the Effective Date. The Bankruptcy Court shall determine the Allowed amounts of such Professional Fee Claims after notice and a hearing in accordance with the procedures established by the Bankruptcy Court. The Reorganized Debtors shall pay Professional Fee Claims in Cash in the amount the Bankruptcy Court allows from the Professional Fee Account, which the Debtors or the Reorganized Debtors will establish in trust for the Professionals and fund with Cash equal to the Professional Fee Amount on or prior to the Effective Date.
2. Professional Fee Account.
As soon as practicable after the Confirmation Date and not later than the Effective Date, the Debtors or Reorganized Debtors, as applicable, shall, in consultation with the Required Consenting Creditors, establish and fund the Professional Fee Account with Cash equal to the Professional Fee Amount. The Professional Fee Account shall be maintained in trust for the Professionals in the Delaware attorney trust account of Cole Schotz P.C. Except as provided herein, such funds shall not be considered property of the Debtors’ Estates. The Professional Fee Account shall be maintained solely for the Professionals. The amount of Allowed Professional Fee Claims shall be paid in Cash to the Professionals by the Reorganized Debtors from the Professional Fee Account as soon as reasonably practicable after such Professional Fee Claims are Allowed. When such Allowed Professional Fee Claims have been paid in full, any remaining amount in the Professional Fee Account shall promptly be paid to the Reorganized Debtors without any further action or order of the Bankruptcy Court.
3. Professional Fee Amount.
Professionals shall reasonably estimate their unpaid Professional Fee Claims in consultation with the Required Consenting Creditors and shall deliver such estimates to the Debtors no later than five (5) days before the Effective Date; provided that such estimate shall not be deemed to limit the amount of the fees and expenses that are the subject of each Professional’s final request for payment in the Chapter 11 Cases. If a Professional does not provide an estimate, the Debtors or Reorganized Debtors shall estimate the unpaid and unbilled fees and expenses of such Professional in consultation with the Required Consenting Creditors.
4. Post-Confirmation Fees and Expenses.
Except as otherwise specifically provided in the Prepackaged Plan, from and after the Confirmation Date, the Debtors shall, in the ordinary course of business and without any further notice to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable and documented legal, professional, or other fees and expenses related to implementation of the Prepackaged Plan and Consummation incurred by the Debtors. Upon the Confirmation Date, any requirement that Professionals comply with sections 327 through 331, 363, and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate, and the Debtors may employ and pay any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court.
19
| D. | Priority Tax Claims. |
Except to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Priority Tax Claim, each Holder of such Allowed Priority Tax Claim shall be treated in accordance with the terms set forth in section 1129(a)(9)(C) of the Bankruptcy Code.
| E. | Payment of Restructuring Expenses. |
The Restructuring Expenses and the outstanding reasonable and documented fees and expenses of the Agents/Trustees (including, for the avoidance of doubt, the Prepetition Convertible Notes Trustee Fees) incurred, or estimated to be incurred, up to and including the Effective Date, shall be paid in full in Cash on the Effective Date(to the extent not previously paid during the course of the Chapter 11 Cases) in accordance with, and subject to, the terms of the Restructuring Support Agreement, any applicable engagement letter(s), and any DIP Orders, as applicable, without any requirement to file a fee application with the Bankruptcy Court, without the need for itemized time detail, or without any requirement for Bankruptcy Court review or approval. All Restructuring Expenses to be paid on the Effective Date shall be estimated prior to and as of the Effective Date and such estimates shall be delivered to the Debtors at least two (2) Business Days before the anticipated Effective Date; provided that such estimates shall not be considered an admission or limitation with respect to such Restructuring Expenses. In addition, the Debtors, the Reorganized Debtors shall continue to pay pre- and post-Effective Date, when due Restructuring Expenses related to implementation, consummation, and defense of the Prepackaged Plan, whether incurred before, on, or after the Effective Date, without any requirement for Bankruptcy Court review or approval.
ARTICLE III.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
| A. | Classification of Claims and Interests. |
This Prepackaged Plan constitutes a separate Prepackaged Plan proposed by each Debtor. Except for the Claims addressed in Article II hereof, all Claims and Interests are classified in the Classes set forth below in accordance with sections 1122 and 1123(a)(1) of the Bankruptcy Code. A Claim or an Interest, or any portion thereof, is classified in a particular Class only to the extent that any portion of such Claim or Interest fits within the description of that Class and is classified in other Classes to the extent that any portion of the Claim or Interest fits within the description of such other Classes. A Claim or an Interest also is classified in a particular Class for the purpose of receiving distributions under the Prepackaged Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date.
20
The classification of Claims and Interests against the Debtors pursuant to the Prepackaged Plan is as follows:
| Class |
Type of Claim or Interest |
Impairment |
Entitled to Vote | |||
| Class 1 | Other Secured Claims | Unimpaired | No (Presumed to accept) | |||
| Class 2 | Other Priority Claims | Unimpaired | No (Presumed to accept) | |||
| Class 3 | Prepetition MDA Loan Claims | Unimpaired | No (Presumed to accept) | |||
| Class 4 | Prepetition Term Loan Claims | Impaired | Yes | |||
| Class 5 | Prepetition Convertible Notes Claims | Impaired | Yes | |||
| Class 6 | General Unsecured Claims | Unimpaired | No (Presumed to accept) | |||
| Class 7 | Intercompany Claims | Impaired/Unimpaired | No (Presumed to accept or deemed to reject) | |||
| Class 8 | Existing Equity Interests | Impaired | No (Deemed to reject) | |||
| Class 9 | Intercompany Interests | Impaired/Unimpaired | No (Presumed to accept or deemed to reject) |
| B. | Treatment of Claims and Interests. |
Each Holder of an Allowed Claim or Allowed Interest, as applicable, shall receive under the Prepackaged Plan the treatment described below in full and final satisfaction, settlement, release, and discharge of and in exchange for such holder’s Allowed Claim or Allowed Interest, except to the extent different treatment is agreed to by the Debtors or the Reorganized Debtors, as applicable, and the Holder of such Allowed Claim or Allowed Interest, as applicable. Unless otherwise indicated, the Holder of an Allowed Claim or Allowed Interest, as applicable, shall receive such treatment on the Effective Date or as soon as reasonably practicable thereafter.
| 1. | Class 1 – Other Secured Claims |
| (a) | Classification: Class 1 consists of all Other Secured Claims. |
| (b) | Treatment: Except to the extent that a holder of an Allowed Other Secured Claim agrees to a less favorable treatment, in full and final satisfaction of such Allowed Other Secured Claim, at the option of the Debtors or the Reorganized Debtors (with consent of the Required Consenting Creditors), one of the following treatments shall be provided to each Holder of an Allowed Other Secured Claim secured by a valid lien: |
| (i) | payment in full in Cash of its Allowed Other Secured Claim; |
| (ii) | retain its lien on its collateral until either such Holder receives the Cash set forth in Section 1(b)(i) or such Holder’s collateral is abandoned to it; |
| (iii) | Reinstatement of its Allowed Other Secured Claim; or |
21
| (iv) | such other treatment that renders its Allowed Other Secured Claim Unimpaired in accordance with section 1124 of the Bankruptcy Code. |
| (c) | Voting: Class 1 is Unimpaired under the Prepackaged Plan. Holders of Other Secured Claims are conclusively presumed to have accepted the Prepackaged Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such holders are not entitled to vote to accept or reject the Prepackaged Plan. For the avoidance of doubt, any portion of any Other Secured Claim that is not secured by collateral or the proceeds thereof shall constitute a General Unsecured Claim to the extent it is Allowed. |
| 2. | Class 2 – Other Priority Claims |
| (a) | Classification: Class 2 consists of all Other Priority Claims. |
| (b) | Treatment: The legal, equitable, and contractual rights of the holders of Allowed Other Priority Claims are unaltered by the Prepackaged Plan. Each Holder of an Allowed Other Priority Claim shall receive payment in full in Cash, in an amount equal to such Allowed Other Priority Claim, without interest, on or as soon as practicable after the latest to occur of (i) the Effective Date; (ii) the first Business Day after the date that is ten (10) Business Days after the date such Claim becomes an Allowed Other Priority Claim; and (iii) the date or dates agreed to by the Reorganized Debtors and the Holder of the Allowed Priority Claim. |
| (c) | Voting: Class 2 is Unimpaired under the Prepackaged Plan. Holders of Other Priority Claims are conclusively presumed to have accepted the Prepackaged Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such holders are not entitled to vote to accept or reject the Prepackaged Plan. |
| 3. | Class 3 – Prepetition MDA Loan Claims |
| (a) | Classification: Class 3 consists of all Prepetition MDA Loan Claims. |
| (b) | Treatment: Except to the extent that a Holder agrees to less favorable treatment, the Allowed Prepetition MDA Loan Claims shall be Reinstated pursuant to the Prepackaged Plan |
| (c) | Voting: Class 3 is Unimpaired under the Prepackaged Plan. Holders of Prepetition MDA Loan Claims are conclusively presumed to have accepted the Prepackaged Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to vote to accept or reject the Prepackaged Plan. |
22
| 4. | Class 4 – Prepetition Term Loan Claims |
| (a) | Classification: Class 4 consists of all Prepetition Term Loan Claims. |
| (b) | Allowance: Class 4 Prepetition Term Loan Claims shall be deemed Allowed in the aggregate amount of $52,108,298.86, plus all interest, fees, expenses, makewholes, prepayment premiums, costs and other charges due under the Prepetition Credit Documents and orders of the Bankruptcy Court, including DIP Orders, through and including the Effective Date. |
| (c) | Treatment: Each Holder of an Allowed Prepetition Term Loan Claim shall receive, in full and final satisfaction of such Allowed Prepetition Term Loan Claim, its Pro Rata share (subject to adjustment in accordance with the Intercreditor Agreement) of fifty-four and two-tenths percent (54.2%) of the total New Common Interests issued pursuant to the Prepackaged Plan on the Effective Date. |
| (d) | Voting: Class 4 is Impaired under the Prepackaged Plan. Holders of Prepetition Term Loan Claims are entitled to vote to accept or reject the Prepackaged Plan. |
| 5. | Class 5 – Prepetition Convertible Notes Claims |
| (a) | Classification: Class 5 consists of all Prepetition Convertible Notes Claims. |
| (b) | Allowance: The Prepetition Convertible Notes Claims shall be deemed Allowed in the amount of $222,258,316.00, plus the Prepetition Convertible Notes Indenture Trustee Fees and all interest, makewholes, prepayment premiums, costs and other charges arising under or related to or provided under the terms of the Prepetition Convertible Notes Documents. The Prepetition Convertible Noteholder Claims shall not be subject to any avoidance, reductions, setoff, offset, recharacterization, subordination (equitable or contractual or otherwise), counter-claim, defense, disallowance, impairment, objection or any challenges under applicable law or regulation except to the extent permitted pursuant to the Prepetition Convertible Notes Documents. |
| (c) | Treatment: Each Holder of an Allowed Prepetition Convertible Notes Claim shall receive, in full and final satisfaction of such Allowed Prepetition Convertible Notes Claim, and subject to the rights and terms of the Prepetition Convertible Notes Documents, its Pro Rata share (subject to adjustment in accordance with the Intercreditor Agreement) of ten percent (10%) of the total New Common Interests issued pursuant to the Prepackaged Plan on the Effective Date. |
| (d) | Voting: Class 5 is Impaired under the Prepackaged Plan. Holders of Prepetition Convertible Notes Claims are entitled to vote to accept or reject the Prepackaged Plan. |
23
| 6. | Class 6 – General Unsecured Claims |
| (a) | Classification: Class 6 consists of all General Unsecured Claims. |
| (b) | Treatment: The legal, equitable, and contractual rights of the holders of Allowed General Unsecured Claims are unaltered by the Prepackaged Plan. Except to the extent that a Holder of an Allowed General Unsecured Claim agrees to different treatment, on and after the Effective Date, the Debtors shall continue to pay or dispute each General Unsecured Claim in the ordinary course of business as if the Chapter 11 Cases had never been commenced. |
| (c) | Voting: Class 6 is Unimpaired under the Prepackaged Plan. Holders of General Unsecured Claims are conclusively presumed to have accepted the Prepackaged Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to vote to accept or reject the Prepackaged Plan. |
| 7. | Class 7 – Intercompany Claims |
| (a) | Classification: Class 7 consists of all Intercompany Claims. |
| (b) | Treatment: All Intercompany Claims shall, at the option of the Reorganized Debtors (with consent of the Required Consenting Creditors), be: (i) Reinstated or (ii) extinguished, compromised, addressed, setoff, cancelled, or settled, potentially without any distribution on account of such Claims. |
| (c) | Voting: Holders of Allowed Intercompany Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) or deemed to have rejected the Prepackaged Plan pursuant to section 1126(g) of the Bankruptcy Code. Holders of Allowed Intercompany Claims are not entitled to vote to accept or reject the Prepackaged Plan. |
8. Class 8 – Existing Equity Interests
| (a) | Classification: Class 8 consists of all Existing Equity Interests. |
| (b) | Treatment: On the Effective Date, Existing Equity Interests (including all Subordinated Interests) will be cancelled, released, and extinguished and will be of no further force and effect and shall receive no recovery under the Prepackaged Plan. |
| (c) | Voting: Class 8 is conclusively deemed to have rejected the Prepackaged Plan pursuant to section 1126(g) of the Bankruptcy Code. Class 8 is not entitled to vote to accept or reject the Prepackaged Plan. |
24
| 9. | Class 9 – Intercompany Interests |
| (a) | Classification: Class 9 consists of all Intercompany Interests. |
| (b) | Treatment: All Intercompany Interests shall, at the option of the Reorganized Debtors (with consent of the Required Consenting Creditors), be: (i) Reinstated; or (ii) discharged, cancelled, released, and extinguished and of no further force or effect without any distribution on account of such Interests. |
| (c) | Voting: Holders of Allowed Intercompany Interests are conclusively presumed to have accepted the Prepackaged Plan pursuant to section 1126(f) or deemed to have rejected the Prepackaged Plan pursuant to section 1126(g) of the Bankruptcy Code. Holders of Allowed Intercompany Interests are not entitled to vote to accept or reject the Prepackaged Plan. |
| C. | Special Provision Governing Unimpaired Claims. |
Except as otherwise provided in the Prepackaged Plan, nothing under the Prepackaged Plan shall affect the Debtors’ or the Reorganized Debtors’ rights regarding any Unimpaired Claim, including, all rights regarding legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim. Unless otherwise Allowed, Claims that are Unimpaired shall remain Disputed Claims under the Prepackaged Plan.
Notwithstanding anything to the contrary in the Prepackaged Plan, Plan Supplement or Confirmation Order, until a Claim arising prior to the Effective Date in Plan Classes 1, 2, 3 and 6 (including cure claims related to the assumption of executory contracts and unexpired leases, but excluding claims for damages related to the rejection of executory contracts and unexpired leases), or which is an Administrative Claim or Priority Tax Claim (collectively, the “Unimpaired Claims”) has been (x) paid in full in accordance with applicable law, or on terms agreed to between the holder of such Claim and the Debtors or Reorganized Debtors, or in accordance with the terms and conditions of the particular transaction giving rise to such Claim or (y) otherwise satisfied or disposed of as determined by a court of competent jurisdiction: (a) the provisions of Prepackaged Plan in Article VIII.A (Discharge of Claims and Termination of Interests), Article VIII.D (Releases by the Releasing Parties), Article VIII.F (Injunction), and Article VIII.C (Releases by the Debtors), but only to the extent that such provision releases claims that could be asserted derivatively by the holder of such Claim, shall not apply or take effect with respect to such Claim, (b) such Claim shall not be deemed settled, satisfied, resolved, released, discharged, barred or enjoined, (c) the property of each of the Debtors’ Estates that vests in the applicable Reorganized Debtor pursuant to the Prepackaged Plan shall not be free and clear of such Claims, and (d) any Liens of Holders of Unimpaired Claims shall not be deemed released. Holders of Unimpaired Claims shall not be required to file a Proof of Claim with the Bankruptcy Court, except for claims for damages related to the rejection of executory contracts and unexpired releases (“Rejection Damages Claims”). Holders of Unimpaired Claims other than those holding Rejection Damages Claims shall not be subject to any claims resolution process in Bankruptcy Court in connection with their Claims and shall retain all their rights under applicable non-bankruptcy law to pursue their Claims against the Debtors or Reorganized Debtors or other Entity in any forum with
25
jurisdiction over the parties. The Debtors and Reorganized Debtors shall retain all defenses, counterclaims, rights to setoff, and rights to recoupment as to Unimpaired Claims. If the Debtors or the Reorganized Debtors dispute any Unimpaired Claim, such dispute shall be determined, resolved, or adjudicated in the manner as if the Chapter 11 Cases had not been commenced, except with respect to Rejection Damages Claims, which shall be determined, resolved or adjudicated as set forth in Article V of the Prepackaged Plan. Notwithstanding the foregoing, any holder of a Claim that is not a Rejection Damages Claim who files a Proof of Claim shall be subject to the Article V of the Plan unless and until such holder withdraws such Proof of Claim.
| D. | Elimination of Vacant Classes. |
Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a Claim or Interest temporarily Allowed by the Bankruptcy Court in an amount greater than zero as of the date of the Confirmation Hearing shall be deemed eliminated from the Prepackaged Plan for purposes of voting to accept or reject the Prepackaged Plan and for purposes of determining acceptance or rejection of the Prepackaged Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.
| E. | Voting Classes, Presumed Acceptance by Non-Voting Classes. |
If a Class contains Claims or Interests eligible to vote and no holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Prepackaged Plan, the holders of such Claims or Interests in such Class shall be deemed to have accepted the Prepackaged Plan.
| F. | Intercompany Interests. |
To the extent Reinstated under the Prepackaged Plan, distributions on account of Intercompany Interests are not being received by holders of such Intercompany Interests on account of their Intercompany Interests but for the purposes of administrative convenience and due to the importance of maintaining the prepetition corporate structure for the ultimate benefit of the holders of New Common Interests, and in exchange for the Debtors’ or Reorganized Debtors’, as applicable, agreement under the Prepackaged Plan to make certain distributions to the holders of Allowed Claims.
| G. | Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code. |
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance of the Prepackaged Plan by one or more of the Classes entitled to vote pursuant to Article III.B of the Prepackaged Plan. The Debtors reserve the right, subject to the prior consent of the Required Consenting Creditors to modify the Prepackaged Plan in accordance with Article X hereof and the Restructuring Support Agreement to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification, including by modifying the treatment applicable to a Class of Claims or Interests to render such Class of Claims or Interests Unimpaired to the extent permitted by the Bankruptcy Code and the Bankruptcy Rules.
26
| H. | Controversy Concerning Impairment. |
If a controversy arises as to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.
| I. | Subordinated Claims. |
The allowance, classification, and treatment of all Allowed Claims and Allowed Interests and the respective distributions and treatments under the Prepackaged Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code, or otherwise. Any such contractual, legal, or equitable subordination rights shall be settled, compromised, and released pursuant to the Prepackaged Plan.
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
| A. | General Settlement of Claims and Interests. |
As discussed in detail in the Disclosure Statement and as otherwise provided herein, pursuant to sections 363 and 1123 of the Bankruptcy Code, and in consideration for the classification, distributions, releases, and other benefits provided under the Prepackaged Plan, upon the Effective Date, the provisions of the Prepackaged Plan shall constitute a good faith compromise and settlement of all Claims, Interests, Causes of Action, and controversies released, settled, compromised, discharged, or otherwise resolved pursuant to the Prepackaged Plan, whether under any provision of chapter 5 of the Bankruptcy Code, on any equitable theory (including equitable subordination, equitable disallowance, or unjust enrichment) or otherwise.
The Prepackaged Plan shall be deemed a motion to approve the good faith compromise and settlement of all such Claims, Interests, and controversies, and the entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of such compromise and settlement under sections 363 and 1123 of the Bankruptcy Code, as well as a finding by the Bankruptcy Court that such settlement and compromise is fair, equitable, reasonable and in the best interests of the Debtors and their Estates. Subject to Article VI hereof, all distributions made to holders of Allowed Claims and Allowed Interests (as applicable) in any Class are intended to be and shall be final.
| B. | Restructuring Transactions. |
On or before the Effective Date, the applicable Debtors or the Reorganized Debtors (and their respective officers, directors, members, or managers (as applicable)) shall enter into and shall take any actions as may be necessary or appropriate to effect the Restructuring Transactions, including as may be set forth in a Restructuring Transactions Memorandum (if applicable) and may take all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Prepackaged Plan and the Restructuring Support Agreement that are consistent with and pursuant to the terms and conditions
27
of the Prepackaged Plan and the Restructuring Support Agreement (and without the need for any approvals, authorizations, or consents except for those expressly required pursuant to the Prepackaged Plan). These actions to implement the Restructuring Transactions may include: (1) the execution and delivery of appropriate agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, arrangement, continuance, dissolution, sale, purchase, or liquidation containing terms that are consistent with the terms of the Prepackaged Plan and the Restructuring Support Agreement and that satisfy the applicable requirements of applicable Law and any other terms to which the applicable Entities may agree; (2) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Prepackaged Plan and the Restructuring Support Agreement and having other terms for which the applicable parties agree; (3) the filing of appropriate certificates or articles of incorporation, formation, reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state or provincial Law; (4) the issuance of the New Common Interests (including the Tranche C Commitment Equity); (5) the execution and delivery of the New Corporate Governance Documents, and any certificates or articles of incorporation, bylaws, or such applicable formation documents (if any) of each Reorganized Debtor, as applicable (including all actions to be taken, undertakings to be made, and obligations to be incurred and fees and expenses to be paid by the Debtors and/or the Reorganized Debtors, as applicable); and (6) all other actions that the applicable Entities determine to be necessary, including making filings or recordings that may be required by applicable Law in connection with the Prepackaged Plan. All Holders of Claims and Interests receiving distributions pursuant to the Prepackaged Plan and all other necessary parties in interest, including any and all agents thereof, shall prepare, execute, and deliver any agreements or documents, including any subscription agreements, and take any other actions as the Debtors and the Required Consenting Creditors may jointly determine are necessary or advisable.
The Confirmation Order shall, and shall be deemed to, pursuant to sections 363 and 1123 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any transaction described in, contemplated by, or necessary to effectuate the Prepackaged Plan.
On the Effective Date, the Reorganized Debtors, as applicable, shall issue all securities, notes, instruments, certificates, and other documents required to be issued pursuant to the Restructuring Transactions.
On the Effective Date, the New Board shall be established, and the Reorganized Debtors shall adopt their New Corporate Governance Documents. The Reorganized Debtors shall be authorized to adopt any other agreements, documents, and instruments and to take any other actions contemplated under the Prepackaged Plan as necessary to consummate the Prepackaged Plan. Cash payments to be made pursuant to the Prepackaged Plan will be made by the Debtors or Reorganized Debtors, as applicable. The Debtors and Reorganized Debtors will be entitled to transfer funds between and among themselves as they determine to be necessary or appropriate to enable the Debtors or Reorganized Debtors, as applicable, to satisfy their obligations under the Prepackaged Plan. Except as set forth herein, any changes in intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the Debtors’ historical intercompany account settlement practices and will not violate the terms of the Prepackaged Plan.
28
From and after the Effective Date, the Reorganized Debtors, subject to any applicable limitations set forth in any post-Effective Date agreement, shall have the right and authority without further order of the Bankruptcy Court to raise additional capital and obtain additional financing, subject to the New Corporate Governance Documents, as the Governing Bodies of the applicable Reorganized Debtors deem appropriate.
| C. | Continued Corporate Existence. |
Except as otherwise provided in the Prepackaged Plan or any agreement, instrument, or other document incorporated in the Prepackaged Plan or the Plan Supplement, each Debtor shall continue to exist after the Effective Date as a separate corporate entity, limited liability company, partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form, as the case may be, pursuant to the applicable Law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation and organizational documents) in effect prior to the Effective Date, except to the extent such certificate of incorporation and bylaws (or other formation and organizational documents) are amended under the Prepackaged Plan or otherwise, in each case, consistent with the Prepackaged Plan, and to the extent such documents are amended in accordance therewith, such documents are deemed to be amended pursuant to the Prepackaged Plan and require no further action or approval (other than any requisite filings required under applicable state, provincial, or federal Law). After the Effective Date, the respective certificate(s) of incorporation and bylaws (or other formation and organizational documents) of one or more of the Reorganized Debtors may be amended or modified on the terms therein without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules. After the Effective Date, one or more of the Reorganized Debtors may be disposed of, dissolved, wound down, or liquidated without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
| D. | Vesting of Assets in the Reorganized Debtors. |
Except as otherwise provided in the Confirmation Order, the Prepackaged Plan, or any agreement, instrument, or other document incorporated in, or entered into in connection with or pursuant to, the Prepackaged Plan or Plan Supplement, on the Effective Date, pursuant to sections 1141(b) and (c), all property in each Estate, all Causes of Action, and any property acquired by any of the Debtors pursuant to the Prepackaged Plan shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Prepackaged Plan, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
29
| E. | Cancellation of Existing Securities and Agreements. |
Except for the purpose of evidencing a right to a distribution under the Prepackaged Plan and except as otherwise set forth in the Prepackaged Plan or the Plan Supplement, on the Effective Date, all agreements, instruments, and other documents evidencing any Claim or Interest (other than Intercompany Interests that are not modified by the Prepackaged Plan) (including, for the avoidance of doubt, the Prepetition Convertible Notes Documents) (collectively, the “Cancelled Instruments”)and any rights of any holder in respect thereof (including, for the avoidance of doubt, in respect of any Subordinated Interest(s)) shall be deemed cancelled and of no force or effect without any need for further action or approval of the Bankruptcy Court or for a Holder to take further action, and the Agents/Trustees and Holders, as applicable, shall be discharged and released and shall not have any continuing duties or obligations thereunder and the obligations of the Debtors, and with respect to the Prepetition Convertible Notes Claims and the Prepetition Term Loan Claims, thereunder shall be deemed fully satisfied, released, and discharged; provided, that, for the avoidance of doubt, the foregoing shall not impact any Claims that are Unimpaired by the Prepackaged Plan. The holders of or parties to such Cancelled Instruments, Securities, and other documentation shall have no rights arising from or related to such Cancelled Instruments, Securities, or other documentation or the cancellation thereof, except the rights provided for pursuant to the Prepackaged Plan. Notwithstanding anything to the contrary herein, but subject to any applicable provisions of Article VI hereof, to the extent cancelled pursuant to this paragraph, the Cancelled Instruments shall continue in effect solely to the extent necessary to: (a) permit Holders of Claims or Interests under the Cancelled Instruments to receive and accept their respective Plan Distributions on account of such Claims or Interests, if any, subject to any applicable charging Liens; (b) permit the Disbursing Agent or other Agents/Trustees, as applicable, to make Plan Distributions on account of the Allowed Claims under the Cancelled Instruments, subject to any applicable charging Liens; (c) preserve any rights of each Agent/Trustee (on its own behalf or on behalf of any applicable Holder) thereunder, respectively, to maintain, exercise, and enforce any applicable rights of indemnity, reimbursement, or contribution, or subrogation or any other claim or entitlement; (d) preserve any rights of each Agent/Trustee (on its own behalf or on behalf of any applicable Holder) thereunder, respectively, to maintain, enforce, and exercise their respective liens, including any charging liens, as applicable, under the terms of the applicable agreements, or any related or ancillary document, instrument, agreement, or principle of law, against any money or property distributed or allocable on account of such Claims or Interests, as applicable; and (e) preserve the rights of each Agent/Trustee (on its own behalf or on behalf of any applicable Holder), to appear and be heard in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court, including, but not limited to, enforcing any obligations owed to any such Agent/Trustee (on its own behalf or on behalf of any applicable Holder), as applicable, under the Prepackaged Plan, the Plan Supplement, the Confirmation Order, or other document incorporated therein.
Except as provided in the Prepackaged Plan (including Article VI hereof), the Plan Supplement, or the Confirmation Order, or as may be necessary to effectuate the terms of the Prepackaged Plan, on the Effective Date, without any further action or approval of the Bankruptcy Court or any Holders, the Agents/Trustees and each Holder, and their respective agents, successors, and assigns, shall each be automatically and fully discharged and released of all of their duties and obligations associated with the Cancelled Instruments, as applicable; provided that any provisions of the Cancelled Instruments that by their terms survive their termination shall
30
survive in accordance with their terms. All distributions made under the Prepackaged Plan or on account of the Allowed Claims of Holders of Prepetition Convertible Notes Claims may be made to or at the direction of the Prepetition Convertible Notes Indenture Trustee for further distribution to the Holders of Allowed Prepetition Convertible Notes Claims under the terms of the Prepetition Convertible Notes Documents, including those provisions relating to the surrender and cancellation of the Prepetition Convertible Notes, and the Debtors and/or Reorganized Debtors, as applicable, shall use commercially reasonable efforts to coordinate with the Unsecured Notes Indenture Trustee under the Prepetition Convertible Notes Indentures with respect to the surrender and cancellation of the Prepetition Convertible Notes at DTC (if any).
| F. | Cancellation of Certain Existing Security Interests. |
Upon the full payment or other satisfaction of an Allowed Secured Claim (including Allowed DIP Claims), or promptly thereafter, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtors and their successors and assigns. Any Holder of such Secured Claim (and the applicable agents for such Holder) shall be authorized and directed, at the sole cost and expense of the Reorganized Debtors, to release any collateral or other property of any Debtor (including any Cash Collateral and possessory collateral) held by such Holder (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Reorganized Debtors to evidence the release of such Liens and/or security interests, including the execution, delivery, and filing or recording of such releases. The presentation or filing of the Confirmation Order to or with any federal, state, provincial, or local agency, records office, or department shall constitute good and sufficient evidence of, but shall not be required to effect, the termination of such Liens.
To the extent that any Holder of an Allowed Secured Claim (including Allowed DIP Claims) that has been satisfied or discharged in full pursuant to the Prepackaged Plan, or any agent for such Holder, has filed or recorded publicly any Liens and/or security interests to secure such Holder’s Allowed Secured Claim, then as soon as practicable on or after the Effective Date, such Holder (or the agent for such Holder) shall take any and all steps requested by the Debtors or the Reorganized Debtors that are necessary or desirable to record or effectuate the cancellation and/or extinguishment of such Liens and/or security interests, including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make any such filings or recordings on such Holder’s behalf.
| G. | Sources of Consideration for Plan Distributions. |
The Debtors or the Reorganized Debtors, as applicable, shall fund distributions under the Prepackaged Plan with the (i) Debtors’ Cash on hand, (ii) Cash generated from operations, (iii) funds from the DIP Facility, and (iv) funds from the New Exit Facility.
31
| H. | New Common Interests. |
The issuance of the New Common Interests (including the Tranche C Commitment Equity) shall be hereby authorized without the need for any further corporate action or without any further action by the holders of Claims or Interests. The Reorganized Debtors shall be authorized to cause to be issued a certain number of shares, units or equity interests (as the case may be based on how the New Common Interests is denominated and the identity of the entity issuing such shares, units, or equity interests) of New Common Interests required to be issued under the Prepackaged Plan and pursuant to their New Corporate Governance Documents. On the Effective Date, the Debtors or Reorganized Debtors, as applicable, shall issue or enter into all Securities, notes, instruments, certificates, and other documents required to be issued or entered into pursuant to the Prepackaged Plan. The New Corporate Governance Documents shall be effective as of the Effective Date and, as of such date, shall be deemed to be valid, binding, and enforceable in accordance with its terms.
All of the shares, units, or equity interests (as the case may be based on how the New Common Interests is denominated) of New Common Interests (including the Tranche C Commitment Equity) issued or authorized to be issued pursuant to the Prepackaged Plan shall be duly authorized, validly issued, fully paid, and non-assessable. Each distribution and issuance referred to in Article VI hereof shall be governed by the terms and conditions set forth in the Prepackaged Plan applicable to such distribution or issuance and by the terms and conditions of the instruments evidencing or relating to such distribution or issuance, which terms and conditions shall bind each Entity receiving such distribution or issuance.
The Reorganized Debtors (i) shall emerge from these Chapter 11 Cases as a private company on the Effective Date and the New Common Interests shall not be listed on a public stock exchange, (ii) shall not be voluntarily subjected to any reporting requirements promulgated by the SEC, and (iii) the New Common Interests (including the Tranche C Commitment Equity) shall not be required to be listed on a recognized U.S. or any foreign stock exchange.
To the extent the following actions have not been completed on or prior to the Effective Date, the Reorganized Debtors shall (i) take all actions reasonably necessary or desirable to delist the Existing Equity Interests from Nasdaq and to deregister under the Exchange Act as promptly as practicable in compliance with SEC rules, (ii) file a Form 25 with the SEC to delist the Existing Equity Interests from Nasdaq and to deregister the Existing Equity Interests from Section 12(b) of the Exchange Act (unless Nasdaq has already filed a Form 25 with the SEC providing for such delisting and deregistration), (iii) file post-effective amendments to terminate all of Parent’s currently effective registration statements under the Securities Act, (iv) file a Form 15 notifying the SEC of the suspension of Parent’s duty to file reports under Section 12(g) and/or Section 15(d) of the Exchange Act, and (v) take all actions reasonably necessary or desirable to ensure (A) that the New Common Interests shall not be listed on a public securities exchange and that the New Common Interests shall not be required to be listed on a recognized securities exchange, except, in each case, as otherwise may be required pursuant to the New Corporate Governance Documents and (B) that the Reorganized Debtors shall not be voluntarily subjected to any reporting requirements promulgated by the SEC.
| I. | The New LLC Agreement. |
On the Effective Date, New TopCo shall enter into the New LLC Agreement, which shall become effective and binding in accordance with its terms and conditions upon the parties thereto, without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Entity (other than as expressly required by the New LLC Agreement).
32
On and as of the Effective Date, each Holder of New Common Interests shall be deemed to be a party to and member under the New LLC Agreement without the need for execution by such Holder. The New LLC Agreement shall be binding on all Entities receiving, and all Holders of, New Common Interests (and their respective successors and assigns), whether such New Common Interests are received or to be received on or after the Effective Date and regardless of whether such Entity executes or delivers a signature page to the New LLC Agreement.
| J. | The New Exit Facility Credit Agreement. |
Entry into the New Exit Facility, the related guarantees (including the New Exit Facility Non-Debtor Guarantees) and security and similar agreements, by the Reorganized Debtors shall be authorized without the need for any further corporate action or without any further action by the holders of Claims or Interests. Confirmation of the Prepackaged Plan shall be deemed authorization for the Debtors or the Reorganized Debtors, as applicable, to, without further notice to or order of the Bankruptcy Court, (i) execute and deliver those documents and agreements necessary or appropriate enter into the New Exit Facility Credit Agreement, and incur and pay any fees, premiums, and expenses in connection therewith, including the Tranche C Commitment Equity, and (ii) act or take action under applicable Law, regulation, order, or rule or vote, consent, authorization, or approval of any person, subject to such modifications as the Debtors or the Reorganized Debtors, as applicable, may deem to be necessary to enter into the New Exit Facility Credit Agreement.
The Tranche C Commitment Parties shall receive their allocated share of the Tranche C Commitment Equity in accordance with the procedures set forth in the New Exit Facility Term Sheet. Those Exit Lenders that are members of the RXR Consortium (as defined in the New Exit Facility Term Sheet) may reallocate their respective portions of the Tranche C Commitment among the members of the RXR Consortium on or before the Tranche C Reallocation Date; provided that the portion of the Tranche C Commitment provided, collectively, by members of the RXR Consortium shall be no less than $12,500,000 in aggregate principal amount.
On the Effective Date, all Liens and security interests granted pursuant to, or in connection with the New Exit Facility, and the related guarantees (including the New Exit Facility Non-Debtor Guarantees), (i) shall be deemed to be approved and shall, without the necessity of the execution, recordation, or filing of mortgages, security agreements, control agreements, pledge agreements, financing statements, or other similar documents, be valid, binding, fully perfected, fully enforceable Liens on, and security interests in, the collateral securing the New Exit Facility and the related guarantees (including the New Exit Facility Non-Debtor Guarantees), with the priorities established in respect thereof, applicable non-bankruptcy Law, the Prepackaged Plan, and the Confirmation Order; and (ii) shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination (including equitable subordination) for any purposes whatsoever and shall not constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy Law, the Prepackaged Plan, or the Confirmation Order.
33
The Reorganized Debtors and the Persons granted Liens and security interests under the New Exit Facility and the related guarantees (including the New Exit Facility Non-Debtor Guarantees), as applicable, are authorized to make all filings and recordings and to obtain all governmental approvals and consents necessary to establish and perfect such Liens and security interests under the provisions of the applicable state, provincial, federal, or other Law (whether domestic or foreign) that would be applicable in the absence of the Prepackaged Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the entry of the Confirmation Order without the need for any filings or recordings) and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable Law to give notice of such Liens and security interests to third parties.
On and as of the Effective Date, all DIP Lenders with DIP Claims that roll into the New Exit Facility shall be deemed to be parties to, and bound by, the Exit Term Loan Facility Credit Agreement, without the need for execution thereof by any such DIP Lender.
By voting to accept this Prepackaged Plan, each DIP Lender thereby instructs and directs the DIP Agent and/or the New Exit Facility Agent to (a) act as Disbursing Agent to the extent required by the Prepackaged Plan, (b) execute and deliver the New Exit Facility Documents (each to the extent it is a party thereto), as well as to execute, deliver, file, record, and issue any notes, documents (including U.C.C. Financing Statements), or agreements in connection therewith, to which the New Exit Facility Agent is a party and to promptly consummate the transactions contemplated thereby, and (c) take any other actions required or contemplated to be taken by the DIP Agent or the New Exit Facility Agent (as applicable) under this Prepackaged Plan or any of the Restructuring Documents to which it is a party.
| K. | Corporate Action. |
Upon the Effective Date, all actions contemplated under the Prepackaged Plan shall be deemed authorized and approved in all respects, including: (a) the issuance and distribution of the New Common Interests; (b) implementation of the Restructuring Transactions, (c) all other actions contemplated under the Prepackaged Plan (whether to occur before, on, or after the Effective Date); (d) adoption of the New Corporate Governance Documents; (e) the rejection, assumption, or assumption and assignment, as applicable, of Executory Contracts and Unexpired Leases (as applicable); (f) payment of the Tranche C Commitment Equity; and (g) all other acts or actions contemplated or reasonably necessary or appropriate to promptly consummate the Restructuring Transactions contemplated by the Prepackaged Plan (whether to occur before, on, or after the Effective Date). All matters provided for in the Prepackaged Plan involving the corporate structure of the Debtors or the Reorganized Debtors, and any corporate, partnership, limited liability company, or other governance action required by the Debtors or the Reorganized Debtor, as applicable, in connection with the Prepackaged Plan shall be deemed to have occurred and shall be in effect, without any requirement of further action by the Security holders, members, directors, or officers of the Debtors or the Reorganized Debtors, as applicable. On or (as applicable) prior to the Effective Date, the appropriate officers of the Debtors or the Reorganized Debtors, as applicable, shall be authorized and (as applicable) directed to issue, execute, and deliver the agreements, documents, Securities, and instruments contemplated under the Prepackaged Plan (or necessary or desirable to effect the transactions contemplated under the Prepackaged Plan) in the name of and on behalf of the Reorganized Debtors, including the New Common Interests, the New
34
Corporate Governance Documents, the Tranche C Commitment Equity, and any and all other agreements, documents, Securities, and instruments relating to the foregoing. The authorizations and approvals contemplated by this Article IV.J shall be effective notwithstanding any requirements under non-bankruptcy Law.
| L. | New Corporate Governance Documents. |
On or immediately prior to the Effective Date, the New Corporate Governance Documents shall be automatically adopted by the applicable Reorganized Debtors. To the extent required under the Prepackaged Plan or applicable non-bankruptcy Law, each of the Reorganized Debtors will file its New Corporate Governance Documents with the applicable Secretaries of State and/or other applicable authorities in its respective state or country of organization if and to the extent required in accordance with the applicable Laws of the respective state or country of organization. The New Corporate Governance Documents will prohibit the issuance of non-voting equity Securities, to the extent required under section 1123(a)(6) of the Bankruptcy Code.
After the Effective Date, the Reorganized Debtors may amend and restate their respective New Corporate Governance Documents in accordance with the terms thereof, and the Reorganized Debtors may file such amended certificates or articles of incorporation, bylaws, or such other applicable formation documents, and other constituent documents as permitted by the Laws of the respective states, provinces, or countries of incorporation and the New Corporate Governance Documents.
1. Directors and Officers of the Reorganized Debtors.
As of the Effective Date, the terms of the current members of the board of directors of the Debtors shall expire and the existing officers of the Debtors shall be automatically removed as officers, and the New Board and new officers of each of the Reorganized Debtors shall be appointed. For subsequent terms, following the Effective Date, members of the New Board and new officers of each of the Reorganized Debtors shall be appointed in accordance with the New Corporate Governance Documents and other constituent documents of each Reorganized Debtor.
Pursuant to section 1129(a)(5) of the Bankruptcy Code, to the extent known, the identity and affiliation of any Person proposed to serve on the New Board will be disclosed in the Plan Supplement. Provisions regarding the removal, appointment, and replacement of members of the New Board to the extent applicable, will be disclosed in the New Corporate Governance Documents.
2. Effectuating Documents; Further Transactions.
On and after the Effective Date, the Reorganized Debtors, and their respective officers, directors, members, or managers (as applicable), are authorized to and may issue, execute, deliver, file, or record such contracts, Securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Prepackaged Plan, and the Securities issued pursuant to the Prepackaged Plan in the name of and on behalf of the Reorganized Debtors, without the need for any approvals, authorizations, or consents except for those expressly required pursuant to the Prepackaged Plan.
35
| M. | Preservation of Causes of Action. |
In accordance with section 1123(b) of the Bankruptcy Code, but subject to Article VIII hereof, each Reorganized Debtor shall retain and may enforce all rights to commence and pursue, as appropriate, any and all Causes of Action of the Debtors, whether arising before or after the Petition Date, including any actions specifically enumerated in the Schedule of Retained Causes of Action, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date, other than the Causes of Action released by the Debtors pursuant to the releases and exculpations contained in the Prepackaged Plan, including in Article VIII hereof, which shall be deemed released and waived by the Debtors and the Reorganized Debtors as of the Effective Date.
The Reorganized Debtors may pursue such retained Causes of Action, as appropriate, in accordance with the best interests of the Reorganized Debtors. No Entity (other than the Debtors’ respective officers, directors, members, or managers that are Released Parties, the Consenting Creditors, and the DIP Lenders) may rely on the absence of a specific reference in the Prepackaged Plan, the Plan Supplement, or the Disclosure Statement to any Cause of Action against it as any indication that the Debtors or the Reorganized Debtors, as applicable, will not pursue any and all available Causes of Action of the Debtors against it. The Debtors and Reorganized Debtors expressly reserve all rights to prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Prepackaged Plan, including Article VIII hereof. Unless any Causes of Action of the Debtors against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Prepackaged Plan or a Final Order, the Reorganized Debtors expressly reserve all Causes of Action, for later adjudication, and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation.
The Reorganized Debtors reserve and shall retain such Causes of Action of the Debtors notwithstanding the rejection or repudiation of any Executory Contract or Unexpired Lease during the Chapter 11 Cases or pursuant to the Prepackaged Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action that a Debtor may hold against any Entity shall vest in the Reorganized Debtors, except as otherwise expressly provided in the Prepackaged Plan, including Article VIII hereof. The applicable Reorganized Debtors, through their authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action. The Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court.
36
| N. | Certain Securities Law Matters. |
The offering, issuance (or entry into), and distribution of the New Common Interests (including the Tranche C Commitment Equity) and any other Securities entered into and/or issued in connection with the Prepackaged Plan, shall be exempt, pursuant to section 1145 of the Bankruptcy Code or section 4(a)(2) of the Securities Act, as applicable, without further act or actions by any Person, from, among other things, the registration requirements of section 5 of the Securities Act and any other applicable Law requiring registration prior to the offering, issuance, distribution, or sale of Securities to the maximum extent permitted by Law, in accordance with, and pursuant to, (i) section 1145 of the Bankruptcy Code (ii) section 4(a)(2) of the Securities Act, and any (iii) other available exemption from registration, as applicable.
In addition, the New Common Interests (including the Tranche C Commitment Equity) are issued in reliance on section 1145 of the Bankruptcy Code and section 4(a)(2) of the Securities Act, as applicable, and (1) will not be “restricted securities” as defined in Rule 144(a)(3) under the Securities Act and (2) will be freely tradable and transferable in the United States by a recipient thereof that (i) is an entity that is not an “underwriter” as defined in section 1145(b)(1) of the Bankruptcy Code, (ii) is not an “affiliate” of the Debtors as defined in Rule 144(a)(1) under the Securities Act, (iii) has not been such an “affiliate” within 90 days of the time of the transfer, and (iv) has not acquired such securities from an “affiliate” within one year of the time of transfer, subject in each case to compliance with applicable securities Laws and any rules and regulations of the SEC or state or local securities Laws, if any, applicable at the time of any future transfer of such Securities, and subject to any restrictions in the New Corporate Governance Documents.
The issuance of the New Common Interests shall not constitute an invitation or solicitation of an invitation or offer to sell or buy, any securities in contravention of any applicable Law in any jurisdiction. No action has been taken, nor will be taken, in any jurisdiction that would permit a public offering of any of the New Common Interests (other than securities issued pursuant to section 1145 of the Bankruptcy Code) in any jurisdiction where such action for that purpose is required.
The Reorganized Debtors need not provide any further evidence other than the Prepackaged Plan or the Confirmation Order with respect to the treatment of the New Common Interests (including the Tranche C Commitment Equity) under applicable securities Laws. Notwithstanding anything to the contrary in the Plan, no Entity (including, for the avoidance of doubt, DTC and any transfer agent) shall be entitled to require a legal opinion regarding the validity of any transaction contemplated by the Prepackaged Plan, including, for the avoidance of doubt, whether the New Common Interests are exempt from registration and/or eligible for DTC book-entry delivery, settlement, and depository services. DTC and any transfer agent shall be required to accept and conclusively rely upon the Prepackaged Plan and Confirmation Order in lieu of a legal opinion regarding whether the New Common Interests and are exempt from registration and/or eligible for DTC book-entry delivery, settlement and depository services.
| O. | Preservation of Net Operating Losses. |
The Bankruptcy Court will enter one or more orders, which may be the Confirmation Order, to facilitate preservation of “net operating losses” of the Debtors, which may also be provided for in the applicable New Organizational Documents.
37
| P. | 1146(a) Exemption from Certain Taxes and Fees. |
To the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any transfers (whether from a Debtor to a Reorganized Debtor or to any other Person) of property under the Prepackaged Plan or pursuant to: (1) the issuance, distribution, transfer, or exchange of any debt, equity Security, or other interest in the Debtors or the Reorganized Debtors, including the New Common Interests (including the Tranche C Commitment Equity); (2) the Restructuring Transactions; (3) the creation, modification, consolidation, termination, refinancing, and/or recording of any mortgage, deed of trust, or other security interest, or the securing of additional indebtedness by such or other means; (4) the making, assignment, or recording of any lease or sublease; (5) the grant of collateral as security for the Reorganized Debtors’ obligations under and in connection with the Exit Facilities; or (6) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Prepackaged Plan, including any deeds, bills of sale, assignments, or other instrument of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Prepackaged Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, personal property transfer tax, sales or use tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, regulatory filing or recording fee, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forego the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental assessment. All filing or recording officers (or any other Person with authority over any of the foregoing), wherever located and by whomever appointed, shall comply with the requirements of section 1146(a) of the Bankruptcy Code, shall forego the collection of any such tax or governmental assessment, and shall accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.
| Q. | Director and Officer Liability Insurance. |
Notwithstanding anything in the Prepackaged Plan to the contrary, the Reorganized Debtors shall be deemed to have assumed all of the Debtors’ D&O Liability Insurance Policies pursuant to section 365(a) of the Bankruptcy Code effective as of the Effective Date. Entry of the Confirmation Order will constitute the Bankruptcy Court’s approval of the Reorganized Debtors’ foregoing assumption of each of the unexpired D&O Liability Insurance Policies.
In addition, after the Effective Date, none of the Reorganized Debtors shall terminate or otherwise reduce the coverage under any D&O Liability Insurance Policies (including any “tail policy”) in effect on or after the Petition Date, with respect to conduct occurring prior thereto, and all directors and officers of the Debtors who served in such capacity at any time prior to the Effective Date shall be entitled to the full benefits of any such policy for the full term of such policy, to the extent set forth therein, regardless of whether such directors and officers remain in such positions after the Effective Date.
38
| R. | Indemnification Obligations. |
Consistent with applicable Law, all indemnification provisions in place as of the Effective Date (whether in the by-laws, certificates of incorporation or formation, limited liability company agreements, other organizational documents, board resolutions, indemnification agreements, employment contracts, engagement letters, or otherwise) for current and former directors, officers, managers, employees, attorneys, accountants, investment bankers, and other professionals of the Debtors or owed to Cantor and RXR Lender and each of Cantor’s and RXR Lender’s Related Parties, as applicable, shall be reinstated and remain intact, irrevocable, and shall survive the effectiveness of the Prepackaged Plan on terms no less favorable to such current and former directors, officers, managers, employees, attorneys, accountants, investment bankers, and other professionals of the Debtors than the indemnification provisions in place prior to the Effective Date.
ARTICLE V.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
| A. | Assumption and Rejection of Executory Contracts and Unexpired Leases. |
On the Effective Date, except as otherwise provided in Article V.H and elsewhere herein, all Executory Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that are: (a) identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (b) previously expired or terminated pursuant to their own terms; (c) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (d) are the subject of a motion to reject that is pending on the Effective Date; or (e) have an ordered or requested effective date of rejection that is after the Effective Date.
Entry of the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions, assumptions and assignments, or rejections of the Executory Contracts or Unexpired Leases as set forth in the Prepackaged Plan, the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases pursuant to the Prepackaged Plan are effective as of the Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Prepackaged Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may have been modified by the provisions of the Prepackaged Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order on or after the Effective Date but may be withdrawn, settled, or otherwise prosecuted by the Reorganized Debtors.
39
Each Executory Contract or Unexpired Lease assumed pursuant to the Prepackaged Plan shall be assumed solely in accordance with the express and written terms of such Executory Contract or Unexpired Lease. The assumption of an Executory Contract or Unexpired Lease pursuant to the Prepackaged Plan shall not be construed as an assumption of any implied terms, implied contract, or implied warranty under any circumstance, except as may be expressly agreed in writing by the Debtors or Reorganized Debtors and, any such rights, to the extent they exist as a matter of applicable law, shall be deemed rejected and subject to Article V.B of this Prepackaged Plan.
To the maximum extent permitted by Law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Prepackaged Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Prepackaged Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Notwithstanding anything to the contrary in the Prepackaged Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to forty-five (45) days after the Effective Date, so long as such allocation, amendment, modification, or supplement is consistent with the Restructuring Support Agreement.
| B. | Claims Based on Rejection of Executory Contracts or Unexpired Leases. |
Unless otherwise provided by a Final Order of the Bankruptcy Court, all Proofs of Claim with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases, pursuant to the Prepackaged Plan or the Confirmation Order, if any, must be Filed with the Bankruptcy Court within thirty (30) days after the later of (1) the date of entry of an order of the Bankruptcy Court (including the Confirmation Order) approving such rejection, (2) the effective date of such rejection, or (3) the Effective Date. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not Filed with the Bankruptcy Court within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors, the Reorganized Debtors, the Estates, or their property without the need for any objection by the Reorganized Debtors or further notice to, or action, order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully satisfied, released, and discharged, notwithstanding anything in the Proof of Claim to the contrary. All Allowed Claims arising from the rejection of the Debtors’ Executory Contracts or Unexpired Leases shall be classified as General Unsecured Claims and shall be treated in accordance with Article III.B.6 of this Prepackaged Plan.
| C. | Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. |
The Debtors’ and counterparties’ respective rights and obligations under each Executory Contract and Unexpired Lease assumed under the Prepackaged Plan shall be unaffected by virtue of these Chapter 11 Cases, and the amounts coming due under such Executory Contracts and Unexpired Leases assumed under the Plan will be paid in the ordinary course of business pursuant to the terms of the Plan, the Confirmation Order, and such Executory Contracts or Unexpired Leases.
40
If you believe any amounts are due as a result of a Debtor’s monetary default under an Executory Contract or Unexpired Lease to be assumed under the Prepackaged Plan, or you wish to otherwise object to the Debtors’ assumption of an Executory Contract or Unexpired Lease under the Plan, including an objection regarding the ability of the Reorganized Debtors to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code), you may assert an objection against the Debtors, subject to all defenses the Debtors may have with respect to such objection, by no later than May 6, 2024 at 4:00 p.m..
ANY COUNTERPARTY TO AN EXECUTORY CONTRACT OR UNEXPIRED LEASE THAT DOES NOT TIMELY OBJECT TO THE PROPOSED ASSUMPTION OF SUCH EXECUTORY CONTRACT OR UNEXPIRED LEASE BY THE DEADLINE TO OBJECT TO ASSUMPTION OF EXECUTORY CONTRACT OR UNEXPIRED LEASE WILL BE DEEMED TO HAVE CONSENTED TO SUCH ASSUMPTION.
The assumption of any Executory Contract or Unexpired Lease pursuant to the Prepackaged Plan or other Final Order shall result in the full release and satisfaction of any nonmonetary defaults arising from or triggered by the filing of these Chapter 11 Cases, including defaults of provisions restricting the change in control or ownership interest composition or any bankruptcy-related defaults, arising at any time prior to the effective date of assumption. Any and all Proofs of Claim based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including pursuant to the Confirmation Order, shall be deemed disallowed and expunged as of the later of (1) the date of entry of an order of the Bankruptcy Court (including the Confirmation Order) approving such assumption, (2) the effective date of such assumption, or (3) the Effective Date without the need for any objection thereto or any further notice to or action, order, or approval of the Bankruptcy Court.
| D. | Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases. |
Rejection of any Executory Contract or Unexpired Lease pursuant to the Prepackaged Plan or other Final Order shall not constitute a termination of preexisting obligations owed to the Debtors or the Reorganized Debtors, as applicable, under such Executory Contracts or Unexpired Leases. In particular, notwithstanding any non-bankruptcy Law to the contrary, the Reorganized Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide, warranties or continued maintenance obligations with respect to goods previously purchased by the Debtors pursuant to rejected Executory Contracts or Unexpired Leases.
| E. | Insurance Policies. |
Each of the Debtors’ insurance policies and any agreements, documents, or instruments relating thereto, shall be treated as Executory Contracts hereunder. Unless otherwise provided in the Prepackaged Plan, on the Effective Date, in connection with all contemplated transactions under this Prepackaged Plan, (1) the Debtors shall be deemed to have assumed all insurance policies and any agreements, documents, and instruments relating to coverage of all insured Claims, including all D&O Liability Insurance Policies, and (2) such insurance policies and any agreements, documents, or instruments relating thereto, including all D&O Liability Insurance Policies, shall revest in the applicable Reorganized Debtors.
41
Nothing in this Prepackaged Plan, Restructuring Support Agreement, the Plan Supplement, the Disclosure Statement, the Confirmation Order, or any other Final Order (including any other provision that purports to be preemptory or supervening), (1) alters, modifies, or otherwise amends the terms and conditions of (or the coverage provided by) any of such insurance policies or (2) alters or modifies the duty, if any, that the insurers or third party administrators have to pay claims covered by such insurance policies and their right to seek payment or reimbursement from the Debtors or draw on any collateral or security therefor. For the avoidance of doubt, insurers and third-party administrators shall not need to nor be required to file or serve a cure objection or a request, application, claim, Proof of Claim, or motion for payment and shall not be subject to any claims bar date or similar deadline governing cure amounts or Claims.
| F. | Reservation of Rights. |
Nothing contained in the Prepackaged Plan, the Restructuring Support Agreement, or the Plan Supplement shall constitute an admission by the Debtors or any other party that any contract or lease is in fact an Executory Contract or Unexpired Lease or that any Reorganized Debtor has any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtors or the Reorganized Debtors, as applicable, shall have forty-five (45) days following entry of a Final Order resolving such dispute to alter their treatment of such contract or lease.
| G. | Nonoccurrence of Effective Date. |
In the event that the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect to any request to extend the deadline for assuming or rejecting Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code.
| H. | Contracts and Leases Entered Into After the Petition Date. |
Contracts and leases entered into after the Petition Date by any Debtor, including any Executory Contracts and Unexpired Leases assumed by such Debtor, will be performed by the applicable Debtor or Reorganized Debtor in the ordinary course of their business. Accordingly, such contracts and leases (including any assumed Executory Contracts and Unexpired Leases) will survive and remain unaffected by entry of the Confirmation Order.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
| A. | Distributions on Account of Claims Allowed as of the Effective Date. |
Except as otherwise provided herein, in a Final Order, or as otherwise agreed to by the Debtors or the Reorganized Debtors, as the case may be, and the Holder of the applicable Allowed Claim on the first Distribution Date, the applicable Reorganized Debtors shall make initial distributions under the Prepackaged Plan on account of Claims Allowed on or before the Effective Date, subject to the Reorganized Debtors’ right to object to Claims; provided that (1) Allowed Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors prior to the Effective Date shall be paid or performed in the ordinary course of business in accordance with the terms and conditions
42
of any controlling agreements, course of dealing, course of business, or industry practice, (2) Allowed Priority Tax Claims shall be paid in accordance with Article II.D of the Prepackaged Plan, and (3) Allowed General Unsecured Claims shall be paid in accordance with Article III.B.6 of the Prepackaged Plan. To the extent any Allowed Priority Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and the Holder of such Claim or as may be due and payable under applicable non-bankruptcy Law or in the ordinary course of business.
All distributions to Holders of Prepetition Convertible Notes Claims may be deemed completed when made to (or at the direction of) the Prepetition Convertible Notes Indenture Trustee, which shall be deemed to be the Holder of all Prepetition Convertible Notes Claims for purposes of distributions to be made hereunder. The Prepetition Convertible Notes Indenture Trustee may hold or direct such distributions for the benefit of the Holders of the Prepetition Convertible Notes Claims. Except as provided in the Prepetition Convertible Notes Documents, the Prepetition Convertible Notes Indenture Trustee shall not incur any liability whatsoever on account of any distributions under the Prepackaged Plan except for gross negligence or willful misconduct. For the avoidance of doubt, the Reorganized Debtors, with the Prepetition Convertible Notes Indenture Trustee’s cooperation, shall make such distribution. The Prepetition Convertible Notes Indenture Trustee shall have no duties, obligations, or responsibilities with respect to any form of distribution to Holders of Prepetition Convertible Notes Claims that is not DTC eligible, and the Debtors or the Reorganized Debtors, as applicable, shall make such distributions. For the avoidance of doubt, all distributions referenced in this paragraph shall be subject to the Prepetition Convertible Notes Indenture Trustee Charging Lien solely to the extent provided in the Prepetition Convertible Notes Documents.
| B. | Disbursing Agent. |
The Debtors or the Reorganized Debtors, as applicable, shall have the authority to enter into agreements with one or more Disbursing Agents to facilitate the distributions required hereunder. All distributions under the Prepackaged Plan shall be made by the Disbursing Agent. The Disbursing Agent shall not be required to give any bond or surety or other security for the performance of its duties unless otherwise ordered by the Bankruptcy Court. Additionally, in the event that the Disbursing Agent is so otherwise ordered, all costs and expenses of procuring any such bond or surety shall be borne by the Reorganized Debtors.
| C. | Rights and Powers of Disbursing Agent. |
1. Powers of the Disbursing Agent.
The Disbursing Agent shall be empowered to: (a) effect all actions and execute all agreements, instruments, and other documents necessary to perform its duties under the Prepackaged Plan; (b) make all distributions contemplated hereby; (c) employ professionals to represent it with respect to its responsibilities; and (d) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Prepackaged Plan, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof. Subject to the cooperation of the Prepetition Convertible Notes Indenture Trustee, the Disbursing Agent may make distributions on account of the Prepetition Convertible Notes Claims, subject in all respects to the rights of the Prepetition Convertible Notes Indenture Trustee Charging Lien against all such distributions solely to the extent permitted in accordance with the Prepetition Convertible Notes Documents.
43
2. Expenses Incurred On or After the Effective Date.
Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and expenses incurred by the Disbursing Agent on or after the Effective Date (including taxes), and any reasonable compensation and expense reimbursement claims (including reasonable attorney fees and expenses), made by the Disbursing Agent shall be paid in Cash by the Reorganized Debtors.
| D. | Delivery of Distributions and Undeliverable or Unclaimed Distributions. |
1. Record Date for Distribution.
On the Distribution Record Date, the Claims Register shall be closed and any party responsible for making distributions shall instead be authorized and entitled to recognize only those record holders listed on the Claims Register as of the close of business on the Distribution Record Date. If a Claim is transferred twenty (20) or fewer days before the Distribution Record Date, the Disbursing Agent shall make distributions to the transferee only to the extent practical and, in any event, only if the relevant transfer form contains an unconditional and explicit certification and waiver of any objection to the transfer by the transferor. For the avoidance of doubt, the Distribution Record Date shall not apply to the Prepetition Convertible Notes Claims, the Holders of which shall receive a distribution (if any) in accordance with the terms of this Article VI on or as soon as practicable after the Effective Date.
2. Delivery of Distributions in General.
Except as otherwise provided herein, the Disbursing Agent shall make distributions to holders of Allowed Claims and Allowed Interests (as applicable) as of the Distribution Record Date at the address for each such holder as indicated on the Debtors’ records as of the date of any such distribution; provided that the manner of such distributions shall be determined at the discretion of the Reorganized Debtors.
3. Minimum Distributions.
No fractional shares of New Common Interests shall be distributed, and no Cash shall be distributed in lieu of such fractional amounts. When any distribution pursuant to the Prepackaged Plan on account of an Allowed Claim or Allowed Interest (if applicable) would otherwise result in the issuance of a number of shares of New Common Interests that is not a whole number, the actual distribution of shares of New Common Interests shall be rounded to the next lower whole number with no further payment therefor. The total number of authorized shares of New Common Interests to be distributed to the Holders of Allowed Claims hereunder shall be adjusted as necessary to account for the foregoing rounding.
The Reorganized Debtors or the Disbursing Agent shall not have any obligation to make a Cash distribution that is less than one hundred dollars ($100) to any Holder of an Allowed Claim.
44
4. Undeliverable Distributions and Unclaimed Property.
In the event that any distribution to any Holder of Allowed Claims or Allowed Interests (as applicable) is returned as undeliverable, no distribution to such holder shall be made unless and until the Disbursing Agent has determined the then-current address of such holder, at which time all currently due, missed distributions shall be made to such Holder without interest. Undeliverable distributions shall remain in the possession of the Reorganized Debtors until such time as a distribution becomes deliverable, or such distribution reverts to the Reorganized Debtors or is cancelled pursuant to this Article VI, and shall not be supplemented with any interest, dividends, or other accruals of any kind.
Any distribution under the Prepackaged Plan that is an unclaimed distribution or remains undeliverable (as reasonably deemed unclaimed or undeliverable by the Reorganized Debtors or the Disbursing Agent) for a period of ninety (90) days after distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and such unclaimed distribution or undeliverable distribution shall revest in the applicable Reorganized Debtor automatically (and without need for a further order by the Bankruptcy Court, notwithstanding any applicable federal, provincial, or estate escheat, abandoned, or unclaimed property Laws to the contrary) and, to the extent such unclaimed distribution is comprised of New Common Interests, then such New Common Interests shall be cancelled. Upon such revesting, the Claim of the Holder or its successors with respect to such property shall be cancelled, released, discharged, and forever barred notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property Laws, or any provisions in any document governing the distribution that is an unclaimed distribution, to the contrary, and the Claim of any Holder of Claims and Interests to such property or Interest in property shall be discharged and forever barred. The Disbursing Agent shall adjust the distributions of the New Common Interests to reflect any such cancellation; however, for the avoidance of doubt, additional Securities shall not be issued to other Holders of Claims due to any such cancellations.
5. Surrender of Cancelled Instruments or Securities.
On the Effective Date or as soon as reasonably practicable thereafter, each holder of a certificate or instrument evidencing a Claim or an Interest that has been cancelled in accordance with Article IV.F hereof shall be deemed to have surrendered such certificate or instrument to the Disbursing Agent. Such surrendered certificate or instrument shall be cancelled solely with respect to the Debtors, and such cancellation shall not alter the obligations or rights of any non-Debtor third parties vis-à -vis one another with respect to such certificate or instrument, including with respect to any indenture or agreement that governs the rights of the Holder of a Claim or Interest, which shall continue in effect for purposes of allowing holders to receive distributions under the Prepackaged Plan, charging liens, priority of payment, and indemnification rights. Notwithstanding anything to the contrary herein, this paragraph shall not apply to certificates or instruments evidencing Claims that are Reinstated under the Prepackaged Plan.
45
6. Delivery of Distributions to Allowed Prepetition Convertible Notes Claims, Allowed Prepetition Term Loan Claims, and DIP Claims.
Except as otherwise reasonably requested by the applicable Agents/Trustees, all distributions to holders of Allowed DIP Claims, Allowed Prepetition Term Loan Claims, and Allowed Prepetition Convertible Notes Claims shall be deemed completed when made to or at the direction of the applicable Agents/Trustees. The Agents/Trustees shall hold or direct such distributions for the benefit of the holders of Allowed DIP Claims, Allowed Prepetition Term Loan Claims, and Allowed Prepetition Convertible Notes Claims, as applicable. As soon as practicable in accordance with the requirements set forth in this Article VI, the Agents/Trustees shall arrange to deliver or direct delivery of such distributions to or on behalf of its holders, subject to the Agents/Trustees’ charging lien. The Agents/Trustees may, if applicable, transfer or direct the transfer of such distributions directly through the facilities of DTC (whether by means of book-entry exchange, free delivery or otherwise) and will be entitled to recognize and deal for all purposes under the Plan with holders of Allowed DIP Claims, Allowed Prepetition Term Loan Claims, and Allowed Prepetition Convertible Notes Claims, to the extent consistent with the customary practices of DTC. If the Agents/Trustees are unable to make, or the Agents/Trustees consent to the Disbursing Agent making such distributions, the Disbursing Agent, with the Agents/Trustees’ cooperation, shall make such distributions to the extent practicable to do so; provided that until such distributions are made, the Agents/Trustees’ charging lien shall attach to the property to be distributed in the same manner as if such distributions were made through the Agents/Trustees. The Agents/Trustees or the Disbursing Agent, as applicable, shall seek the cooperation of DTC so that any distribution on account of an Allowed Prepetition Convertible Notes Claim that is held in the name of, or by a nominee of, DTC, shall be made through the facilities of DTC on the Effective Date or as soon as practicable thereafter.
| E. | Manner of Payment. |
| 1. | All distributions of the New Common Interests to the holders of the applicable Allowed Claims under the Prepackaged Plan shall be made by the Disbursing Agent on behalf of the Debtors or the Reorganized Debtors, as applicable. |
| 2. | All distributions of Cash to the holders of the applicable Allowed Claims under the Prepackaged Plan shall be made by the Disbursing Agent on behalf of the applicable Debtor or Reorganized Debtor, as applicable. |
| 3. | At the option of the Disbursing Agent, any Cash payment to be made hereunder may be made by check or wire transfer or as otherwise required or provided in applicable agreements. |
| F. | Compliance with Tax Requirements. |
In connection with the Prepackaged Plan, to the extent applicable, the Debtors, Reorganized Debtors, the Disbursing Agent, and any applicable withholding agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions made pursuant to the Prepackaged Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Prepackaged Plan to the
46
contrary, such parties shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Prepackaged Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. The Debtors and the Reorganized Debtors reserve the right to allocate all distributions made under the Prepackaged Plan in compliance with all applicable wage garnishments, alimony, child support, and similar spousal awards, Liens, and encumbrances.
| G. | Allocations. |
Distributions in respect of Allowed Claims shall be allocated first to the principal amount of such Claims (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claims, to any portion of such Claims for accrued but unpaid interest.
| H. | No Postpetition Interest on Claims. |
Unless otherwise specifically provided for in the Prepackaged Plan, the Confirmation Order, the DIP Orders, any other order of the Bankruptcy Court, or required by applicable bankruptcy and non-bankruptcy Law, postpetition interest shall not accrue or be paid on any prepetition Claims, and no Holder of a Claim shall be entitled to interest accruing on or after the Petition Date on such Claim; provided that this section shall not apply to DIP Claims and Prepetition Term Loan Claims.
| I. | Foreign Currency Exchange Rate. |
Except as otherwise provided in a Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate for the applicable currency as published in The Wall Street Journal (National Edition), on the Effective Date.
| J. | Setoffs and Recoupment. |
Except as expressly provided in this Prepackaged Plan, each Reorganized Debtor may, pursuant to section 553 of the Bankruptcy Code, set off and/or recoup against any Plan Distributions to be made on account of any Allowed Claim (other than DIP Claims and Prepetition Term Loan Claims), any and all claims, rights, and Causes of Action that such Reorganized Debtor may hold against the Holder of such Allowed Claim to the extent such setoff or recoupment is either (1) agreed in amount among the relevant Reorganized Debtor(s) and the Holder of the Allowed Claim or (2) otherwise adjudicated by the Bankruptcy Court or another court of competent jurisdiction; provided that neither the failure to effectuate a setoff or recoupment nor the allowance of any Claim hereunder shall constitute a waiver or release by a Reorganized Debtor or its successor of any and all claims, rights, and Causes of Action that such Reorganized Debtor or its successor may possess against the applicable holder. In no event shall any Holder of a Claim be entitled to recoup such Claim against any claim, right, or Cause of Action of the Debtors or the Reorganized Debtors, as applicable, unless such holder actually has performed such recoupment and provided notice thereof in writing to the Debtors in accordance with Article XII.G hereof on or before the Effective Date, notwithstanding any indication in any Proof of Claim or otherwise that such holder asserts, has, or intends to preserve any right of recoupment.
47
| K. | Claims Paid or Payable by Third Parties. |
1. Claims Paid by Third Parties/Insurers.
The Debtors or the Reorganized Debtors, as applicable, shall reduce in full a Claim, and such Claim shall be disallowed without a Claims objection having to be Filed and without any further notice to or action, order, or approval of the Bankruptcy Court, to the extent that the Holder of such Claim receives payment in full on account of such Claim from a party that is not a Debtor, or a Reorganized Debtor. Subject to the last sentence of this paragraph, to the extent a Holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is not a Debtor or a Reorganized Debtor on account of such Claim, such holder shall, within fourteen (14) days of receipt thereof, repay or return the distribution to the applicable Reorganized Debtor to the extent the holder’s total recovery on account of such Claim from the third party and under the Prepackaged Plan exceeds the amount of such Claim as of the date of any such distribution under the Prepackaged Plan. The failure of such holder to timely repay or return such distribution shall result in the holder owing the applicable Reorganized Debtor annualized interest at the Federal Judgment Rate on such amount owed for each Business Day after the fourteen (14) day grace period specified above until the amount is repaid.
2. Claims Payable by Third Parties.
Other than with respect to any Claims of the Consenting Creditors or the DIP Lenders, no distributions under the Prepackaged Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the Holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors’ insurers agrees to satisfy in full or in part a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement, the applicable portion of such Claim may be expunged without a Claims objection having to be Filed and without any further notice to or action, order, or approval of the Bankruptcy Court.
3. Applicability of Insurance Policies.
Except as otherwise provided in the Prepackaged Plan, distributions to holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy. Nothing contained in the Prepackaged Plan shall constitute or be deemed a waiver of any Cause of Action that the Debtors or any Entity may hold against any other Entity, including insurers under any policies of insurance, nor shall anything contained herein constitute or be deemed a waiver by such insurers of any defenses, including coverage defenses, held by such insurers.
48
ARTICLE VII.
PROCEDURES FOR RESOLVING CONTINGENT,
UNLIQUIDATED, AND DISPUTED CLAIMS
| A. | Disputed Claims Process. |
In light of the Unimpaired status of all Allowed General Unsecured Claims under the Prepackaged Plan, there is no requirement to file a Proof of Claim (or move the Bankruptcy Court for allowance) to have a Claim Allowed for the purposes of the Prepackaged Plan, except as provided in Article V.B of the Prepackaged Plan or Article V.C with respect to a Cure amount, and the Debtors or the Reorganized Debtors, as applicable, (with the consent of the Required Consenting Creditors) shall determine, adjudicate, and resolve any disputes over the validity and amounts of such Claims in the ordinary course of business as if the Chapter 11 Cases had not been commenced (and no approval or authority from the Bankruptcy Court shall be required) except that (unless expressly waived pursuant to the Prepackaged Plan) the Allowed amount of such Claims shall be subject to the limitations or maximum amounts permitted by the Bankruptcy Code, including sections 502 and 503 of the Bankruptcy Code, to the extent applicable.
On and after the Effective Date, except as otherwise provided in this Prepackaged Plan, all Allowed Claims shall be satisfied in the ordinary course of business by the Reorganized Debtors. The Debtors and/or the Reorganized Debtors, as applicable, (with the consent of the Required Consenting Creditors) shall have the exclusive authority to (i) determine, without the need for notice to or action, order, or approval of the Bankruptcy Court, that a claim subject to any Proof of Claim that is Filed is Allowed and (ii) file, settle, compromise, withdraw, or litigate to judgment any objections to Claims as permitted under this Prepackaged Plan. If the Debtors or Reorganized Debtors dispute any Claim, such dispute shall be determined, resolved, or adjudicated, as the case may be, in the manner as if the Chapter 11 Cases had not been commenced and shall survive the Effective Date as if the Chapter 11 Cases had not been commenced; provided that the Debtors or Reorganized Debtors may elect, at their sole option, to object to any Claim (other than Claims expressly Allowed by this Prepackaged Plan) and to have the validity or amount of any Claim adjudicated by the Bankruptcy Court; provided further that holders of Claims may elect to resolve the validity or amount of any Claim in the Bankruptcy Court. All Proofs of Claim Filed in the Chapter 11 Cases shall be deemed objected to and Disputed without further action by the Debtors. Upon the Effective Date, all Proofs of Claim filed against the Debtors, regardless of the time of filing, and including Proofs of Claim filed after the Effective Date, shall be deemed withdrawn and expunged, except as otherwise provided herein. Notwithstanding anything in this Prepackaged Plan to the contrary, disputes regarding the amount of any Cure pursuant to section 365 of the Bankruptcy Code and Claims that the Debtors seek to have determined by the Bankruptcy Court, shall in all cases be determined by the Bankruptcy Court. Except as otherwise provided herein, all Proofs of Claim Filed after the Effective Date shall be disallowed and forever barred, estopped, and enjoined from assertion, and shall not be enforceable against any Reorganized Debtor without the need for any objection by the Reorganized Debtors or any further notice to or action, order, or approval of the Bankruptcy Court.
49
| B. | Allowance of Claims. |
After the Effective Date, except as otherwise expressly set forth herein, each of the Reorganized Debtors shall have and retain any and all rights and defenses such Debtor had with respect to any Claim or Interest immediately prior to the Effective Date. The Debtors or the Reorganized Debtors, as applicable, may affirmatively determine to deem Unimpaired Claims Allowed to the same extent such Claims would be allowed under applicable non-bankruptcy Law, without further notice or order from the Bankruptcy Court.
| C. | Claims Administration Responsibilities. |
Except as otherwise specifically provided in the Prepackaged Plan, after the Effective Date, the Reorganized Debtors, in consultation with the Required Consenting Creditors, shall have the exclusive authority: (1) to File, withdraw, or litigate to judgment, objections to Claims or Interests; (2) to settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court; and (3) to administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court. For the avoidance of doubt, except as otherwise provided herein, from and after the Effective Date, each Reorganized Debtor shall have and retain any and all rights and defenses such Debtor had immediately prior to the Effective Date with respect to any Disputed Claim or Interest, including the Causes of Action retained pursuant to Article IV.L of the Prepackaged Plan.
Any objections to Proofs of Claims (other than Administrative Claims) shall be served and Filed (a) on or before the date that is one hundred and eighty days following the later of (i) the Effective Date and (ii) the date that a Proof of Claim is Filed or amended or a Claim is otherwise asserted or amended in writing by or on behalf of a Holder of a Claim or (b) such later date as ordered by the Bankruptcy Court.
| D. | Estimation of Claims and Interests. |
Before, on, or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, (with the consent of the Required Consenting Creditors) may (but are not required to) at any time request that the Bankruptcy Court estimate any Disputed Claim or Interest that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party in interest previously has objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation of any objection to any Claim or Interest or during the appeal relating to such objection. Notwithstanding any provision otherwise in the Prepackaged Plan, a Claim that has been expunged from the Claims Register, but that either is subject to appeal or has not been the subject of a Final Order, shall be deemed to be estimated at zero dollars, unless otherwise ordered by the Bankruptcy Court. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Prepackaged Plan (including for purposes of distributions), and the relevant Reorganized Debtor may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.
50
| E. | Adjustment to Claims or Interests without Objection. |
Any duplicate Claim or Interest or any Claim or Interest that has been paid, satisfied, amended, or superseded may be adjusted or expunged on the Claims Register by the Reorganized Debtors without the Reorganized Debtors having to File an application, motion, complaint, objection, or any other legal proceeding seeking to object to such Claim or Interest and without any further notice to or action, order, or approval of the Bankruptcy Court.
| F. | Disallowance of Claims or Interests. |
Except as otherwise expressly set forth herein, all Claims and Interests of any Entity from which property is sought by the Debtors under sections 542, 543, 550, or 553 of the Bankruptcy Code or that the Debtors or the Reorganized Debtors allege is a transferee of a transfer that is avoidable under sections 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code shall be disallowed if: (a) the Entity, on the one hand, and the Debtors or the Reorganized Debtors, as applicable, on the other hand, agree or the Bankruptcy Court has determined by Final Order that such Entity or transferee is liable to turn over any property or monies under any of the aforementioned sections of the Bankruptcy Code; and (b) such Entity or transferee has failed to turn over such property by the date set forth in such agreement or Final Order. No payment or distribution shall be made on account of such Claim or Interest unless the transferee has paid or turned over such property.
| G. | No Distributions Pending Allowance. |
Notwithstanding any other provision of the Prepackaged Plan, if any portion of a Claim or Interest is a Disputed Claim or Interest, as applicable, no payment or distribution provided hereunder shall be made on account of such Claim or Interest unless and until such Disputed Claim or Interest becomes an Allowed Claim or Interest; provided that if only the Allowed amount of an otherwise valid Claim or Interest is Disputed, such Claim or Interest shall be deemed Allowed in the amount not Disputed and payment or distribution shall be made on account of such undisputed amount.
| H. | Distributions After Allowance. |
To the extent that a Disputed Claim or Interest ultimately becomes an Allowed Claim or Interest, distributions (if any) shall be made to the Holder of such Allowed Claim or Interest in accordance with the provisions of the Prepackaged Plan. As soon as reasonably practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim or Interest becomes a Final Order, the Disbursing Agent shall provide to the Holder of such Claim or Interest the distribution (if any) to which such holder is entitled under the Prepackaged Plan as of the Effective Date, without any interest to be paid on account of such Claim or Interest.
51
ARTICLE VIII.
SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS
| A. | Discharge of Claims and Termination of Interests. |
Pursuant to and to the fullest extent permitted by section 1141(d) of the Bankruptcy Code, and except as otherwise specifically provided in the Definitive Documents, the Prepackaged Plan, or in any contract, instrument, or other agreement or document created or entered into pursuant to the Prepackaged Plan, the distributions, rights, and treatment that are provided in the Prepackaged Plan shall be in complete satisfaction, discharge, and release, effective as of the Effective Date, of Claims (including any Intercompany Claims resolved or compromised after the Effective Date by the Reorganized Debtors), Interests, and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Interests from and after the Petition Date, whether known or unknown, against, liabilities of, Liens on, obligations of, rights against, and interests in, the Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Prepackaged Plan on account of such Claims and Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any liability (including withdrawal liability) to the extent such Claims or Interests relate to services performed by employees of the Debtors prior to the Effective Date and that arise from a termination of employment, any contingent or non-contingent liability on account of representations or warranties issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, in each case whether or not: (1) a Proof of Claim based upon such debt or right is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code; (2) a Claim or Interest based upon such debt, right, or interest is Allowed pursuant to section 502 of the Bankruptcy Code; or (3) the Holder of such a Claim or Interest has accepted the Prepackaged Plan. The Confirmation Order shall be a judicial determination of the discharge of all Claims (other than the Reinstated Claims) and Interests (other than the Intercompany Interests that are Reinstated) subject to the occurrence of the Effective Date.
| B. | Release of Liens. |
Except as otherwise provided in the Prepackaged Plan, the Restructuring Support Agreement, the Confirmation Order, or in any contract, instrument, release, or other agreement or document amended or created pursuant to the Prepackaged Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to the Prepackaged Plan and, in the case of a Secured Claim, satisfaction in full of the portion of the Secured Claim that is Allowed as of the Effective Date, except for Other Secured Claims that the Debtors elect to Reinstate in accordance with this Prepackaged Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtors and their successors and assigns. Any Holder of such Secured Claim (and the applicable agents for such Holder) shall be authorized and directed, at the sole cost and expense of the Reorganized Debtors, to release any collateral or other property of any Debtor (including any Cash Collateral and possessory collateral) held by such Holder (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Reorganized Debtors to evidence the release of such Liens and/or security
52
interests, including the execution, delivery, and filing or recording of such releases. The presentation or filing of the Confirmation Order to or with any federal, state, provincial, or local agency, records office, or department shall constitute good and sufficient evidence of, but shall not be required to effect, the termination of such Liens.
To the extent that any Holder of a Secured Claim that has been satisfied or discharged in full pursuant to the Prepackaged Plan, or any agent for such Holder, has filed or recorded publicly any Liens and/or security interests to secure such Holder’s Secured Claim, then as soon as practicable on or after the Effective Date, such Holder (or the agent for such Holder) shall take any and all steps requested by the Debtors or the Reorganized Debtors that are necessary or desirable to record or effectuate the cancellation and/or extinguishment of such Liens and/or security interests, including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make any such filings or recordings on such Holder’s behalf.
| C. | Releases by the Debtors. |
As of the Effective Date, except for the rights and remedies that remain in effect from and after the Effective Date to enforce the Prepackaged Plan and the obligations contemplated by the Definitive Documents and the documents in the Plan Supplement or as otherwise provided in any order of the Bankruptcy Court, to the maximum extent permitted by law, for good and valuable consideration, the adequacy of which is hereby confirmed, including the service of the Released Parties to facilitate the reorganization of the Debtors and the implementation of the Restructuring, on and after the Effective Date, the Released Parties shall be conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by the Debtors, the Reorganized Debtors, and the Debtors’ Estates, and each of their Related Parties, in each case on behalf of themselves and their respective successors, permitted assigns, and representatives and any and all other Persons or Entities that may purport to assert any Cause of Action derivatively, by or through the foregoing Persons or Entities, from any and all claims, interests (including Interests), obligations, suits, judgments, damages, demands, debts, rights, Causes of Action, liens, losses, remedies, contributions, indemnities, costs, or liabilities whatsoever, including any derivative claims or Causes of Action, asserted or assertable on behalf of the Debtors, the Reorganized Debtors, or the Debtors’ Estates and each of their Related Parties, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or arising, in law, equity, contract, tort, or otherwise, by statute, violations of federal, state, provincial, foreign, or territorial securities laws or otherwise that the Debtors, the Reorganized Debtors, or the Debtors’ Estates and each of their Related Parties would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of a Claim or Interest or other Person or Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtors, the Reorganized Debtors, the Debtors’ Estates, the Chapter 11 Cases, the purchase, sale, issuance, cancellation, or rescission of the purchase of any security of the Debtors or the Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest, the business or contractual arrangements between the Debtors and any Released Party, the restructuring of Claims and Interests before or during the Debtors’ Chapter 11 Cases, the Restructuring, the DIP Documents, the New Exit Facility, the negotiation, formulation,
53
preparation or consummation of the Prepackaged Plan (including the Plan Supplement), the Definitive Documents, the Restructuring Support Agreement, and any exhibits or documents related thereto, the Solicitation Materials, or the solicitation of votes with respect to the Prepackaged Plan, in all cases based on any act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date; provided that claims or Causes of Action arising out of or related to any act or omission of a Released Party that constitutes actual fraud, gross negligence, or willful misconduct as determined by a Final Order shall not be released; provided, further, that the releases under this section VIII.C do not release any direct claims of Related Parties against the Released Parties and provided, further, that (i) Vidul Prakash and (ii) Saurabh Agarwal shall not be a “Released Party.”
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference each of the related provisions and definitions contained in the Prepackaged Plan, and further, shall constitute the Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties, including the Released Parties’ contributions to facilitating the Restructuring Transactions and implementing the Prepackaged Plan; (2) a good faith settlement and compromise of the claims and Causes of Action released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a bar to any of the Debtors, the Reorganized Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action of any kind whatsoever released pursuant to the Debtor Release.
| D. | Releases by the Releasing Parties. |
As of the Effective Date, except for the rights and remedies that remain in effect from and after the Effective Date to enforce the Prepackaged Plan and the obligations contemplated by the Definitive Documents and the documents in the plan supplement or as otherwise provided in any order of the Bankruptcy Court, to the maximum extent permitted by law, for good and valuable consideration, the adequacy of which is hereby confirmed, including the service of the Released Parties to facilitate the reorganization of the Debtors and the implementation of the Restructuring, on and after the Effective Date, the Released Parties shall be conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by the Releasing Parties from any and all claims, interests (including Interests), obligations, suits, judgments, damages, demands, debts, rights, Causes of Action, liens, losses, remedies, contributions, indemnities, costs, or liabilities whatsoever, including any derivative claims or Causes of Action, asserted or assertable on behalf of the Debtors, the Reorganized Debtors, or the Debtors’ Estates, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or arising, in law, equity, contract, tort, or otherwise, by statute, violations of federal, state, provincial, foreign, or territorial securities laws or otherwise that such Releasing Parties would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of a Claim or Interest or other Person or Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtors, the Reorganized Debtors, the Debtors’ Estates, the Chapter 11 Cases, the purchase, sale, issuance, cancellation, or rescission of the purchase of any security of the of the Debtors or
54
the Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest, the business or contractual arrangements between the Debtors and any Released Party, the restructuring of Claims and Interests before or during the Debtors’ Chapter 11 Cases, the Restructuring, the DIP Documents, the New Exit Facility, the negotiation, formulation, preparation or consummation of the Prepackaged Plan (including the plan supplement), the Definitive Documents, the Restructuring Support Agreement, and any exhibits or documents related thereto, the Solicitation Materials, or the solicitation of votes with respect to the Prepackaged Plan, in all cases based on any act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date; provided that claims or Causes of Action arising out of or related to any act or omission of a Released Party that constitutes actual fraud, gross negligence, or willful misconduct as determined by a Final Order shall not be released; provided, further, that (i) Vidul Prakash and (ii) Saurabh Agarwal shall not be a “Released Party”; and provided, further that, for the avoidance of doubt, nothing in this Article VIII.D. shall be construed to release or discharge any claim, interest, or cause of action asserted by the Mehedi Action Plaintiffs against any non-Debtor defendant (or, solely to the extent of available insurance, Debtor View, Inc.) in the Mehedi Action.
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of these releases, which includes by reference each of the related provisions and definitions contained in this Prepackaged Plan, and, further, shall constitute the Bankruptcy Court’s finding that these releases are: (1) essential to the confirmation of the Prepackaged Plan; (2) given in exchange for the good and valuable consideration provided by the Released Parties, including the Released Parties’ contributions to facilitating the Restructuring Transactions and implementing the Prepackaged Plan; (3) a good faith settlement and compromise of the claims and Causes of Action released by these releases; (4) in the best interests of the Debtors and their Estates; (5) fair, equitable, and reasonable; (6) given and made after due notice and opportunity for hearing; and (7) a bar to any of the Releasing Parties asserting any claim or Cause of Action of any kind whatsoever released pursuant to these releases.
| E. | Exculpation. |
Effective as of the Effective Date, to the fullest extent permissible under applicable Law and without affecting or limiting the releases set forth in Articles VIII.C and VIII.D herein, and except as otherwise specifically provided in the Prepackaged Plan or the Confirmation Order, no Exculpated Party shall have or incur liability for, and each Exculpated Party shall be released and exculpated from any Cause of Action or any claim arising from any act or omission from the Petition Date through the Effective Date in connection with, relating to, or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation, entry into, or filing of, as applicable the Chapter 11 Cases, the Restructuring Support Agreement, the Disclosure Statement, the Prepackaged Plan (including the Plan Supplement), the DIP Facility, the DIP Documents, or any Restructuring Transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Disclosure Statement or the Prepackaged Plan, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Prepackaged Plan, including the issuance of Securities pursuant to the Prepackaged Plan, or the distribution of property
55
under the Prepackaged Plan or any other related agreement (excluding, for the avoidance of doubt, providing any legal opinion effective as of the Effective Date requested by any Entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the Prepackaged Plan), except for claims or Causes of Action related to any act or omission that is determined in a Final Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Prepackaged Plan. The Exculpated Parties have, and upon Consummation of the Prepackaged Plan shall be deemed to have, participated in good faith and in compliance with the applicable Laws with regard to the solicitation of votes and distribution of consideration pursuant to the Prepackaged Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any applicable Law, rule, or regulation governing the solicitation of acceptances or rejections of the Prepackaged Plan or such distributions made pursuant to the Prepackaged Plan. Notwithstanding the foregoing, the exculpation shall not release any obligation or liability of any Entity for any post-Effective Date obligation under the Prepackaged Plan or any document, instrument or agreement (including those set forth in the Plan Supplement) executed to implement the Prepackaged Plan.
The Exculpated Parties and other parties set forth above have, and upon confirmation of the Prepackaged Plan shall be deemed to have, participated in good faith and in compliance with the applicable Laws with regard to the solicitation of votes and distribution of consideration pursuant to the Prepackaged Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any applicable Law, rule, or regulation governing the solicitation of acceptances or rejections of the Prepackaged Plan or such distributions made pursuant to the Prepackaged Plan.
Solely with respect to the exculpation provision, notwithstanding anything to the contrary in the Plan or Plan Supplement, each of the Section 1125(e) Exculpation Parties shall not incur liability for any Cause of Action or claim related to any act or omission in connection with, relating to, or arising out of, in whole or in part, (a) the solicitation of acceptance or rejection of the Plan in good faith and in compliance with the applicable provisions of the Bankruptcy Code or (b) the participation, in good faith and in compliance with the applicable provisions of the Bankruptcy Code, in the offer, issuance, sale, or purchase of a security, offered or sold under the Plan.
| F. | Injunction. |
Except as otherwise expressly provided in the Prepackaged Plan, or for obligations issued or required to be paid pursuant to the Prepackaged Plan or the Confirmation Order, all Entities that have held, hold, or may hold claims, interests, obligations, suits, judgments, damages, demands, debts, rights, Causes of Action, liens, losses, remedies, contributions, indemnities, costs, or liabilities that have been settled, released, discharged, or exculpated under the Prepackaged Plan or the Confirmation Order (collectively, the “Enjoined Matters”) are permanently enjoined, from and after the Effective Date, from taking any of the following actions against, as applicable, the Debtors, the Reorganized Debtors, the Exculpated Parties, or the Released Parties: (1) commencing or continuing in any manner
56
any action or other proceeding of any kind on account of or in connection with or with respect to the Enjoined Matters; (2) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or in connection with or with respect to the Enjoined Matters; (3) creating, perfecting, or enforcing any encumbrance of any kind against such Entities or the property or the estates of such Entities on account of or in connection with or with respect to the Enjoined Matters; (4) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property of such Entities on account of or in connection with or with respect to the Enjoined Matters unless such Holder has Filed a motion requesting the right to perform such setoff on or before the Effective Date, and notwithstanding an indication of a Claim or Interest or otherwise that such Holder asserts, has, or intends to preserve any right of setoff pursuant to applicable Law or otherwise; and (5) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such claims or interests released or settled pursuant to the Prepackaged Plan; provided that notwithstanding the foregoing, nothing in this Article VIII.F. shall be construed to enjoin (a) any action by the Mehedi Action Plaintiffs, or (b) any claim, interest, or cause of action asserted by the Mehedi Action Plaintiffs, in each of the foregoing cases (a) and (b), solely to the extent asserted against any non-Debtor defendant (or Debtor View, Inc, limited to and solely to the extent of available insurance) in the Mehedi Action.
| G. | Protections Against Discriminatory Treatment. |
Consistent with section 525 of the Bankruptcy Code and the Supremacy Clause of the U.S. Constitution, all Entities, including Governmental Units, shall not discriminate against the Reorganized Debtors, or deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, the Reorganized Debtors or another Entity with whom the Reorganized Debtors have been associated, solely because each Debtor has been a debtor under chapter 11 of the Bankruptcy Code, has been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtors are granted or denied a discharge), or has not paid a debt that is dischargeable in the Chapter 11 Cases.
| H. | Document Retention. |
Until the entry of a final order of judgment or settlement in the Mehedi Action, the Debtors, the Reorganized Debtors, and any transferees, successors and/or assigns of the Debtors’ books, records, documents, files, electronic data (in whatever format, including native format), including but not limited to those that are, or as of the Petition Date were required to be preserved by the Debtors pursuant to the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. §§ 77z-1(b) (2), 78u-4(b)(3)(C)(i) and/or Federal Rule of Civil Procedure 37(e) (the “Books and Records”), shall preserve such Books and Records solely to the extent required by applicable law and the terms of this Prepackaged Plan.
Subject in all respects to the specific requirements set forth in this Article VIII.H, on and after the Effective Date, the Reorganized Debtors may maintain documents in accordance with their standard document retention policy, as may be altered, amended, modified, or supplemented by the Reorganized Debtors.
57
| I. | Reimbursement or Contribution. |
If the Bankruptcy Court disallows a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is contingent as of the time of allowance or disallowance, such Claim shall be forever disallowed and expunged notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the Confirmation Date: (1) such Claim has been adjudicated as non-contingent or (2) the relevant Holder of a Claim has Filed a non-contingent Proof of Claim on account of such Claim and a Final Order has been entered prior to the Confirmation Date determining such Claim as no longer contingent.
ARTICLE IX.
CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN
A. Conditions Precedent to the Effective Date.
It shall be a condition to the Effective Date that the following conditions shall have been satisfied or waived pursuant to the provisions of Article IX.B hereof:
| (a) | the Bankruptcy Court shall have entered the Confirmation Order (which shall include final approval of the Disclosure Statement), which shall be a Final Order, in form and substance consistent in all respects with the Restructuring Support Agreement (including any consent rights thereunder) and otherwise in form and substance acceptable to the Debtors, the Required Consenting Creditors, and which shall: |
| (i) | authorize the Debtors to take all actions necessary to enter into, implement, and consummate the contracts, instruments, releases, leases, indentures, and other agreements or documents created in connection with the Prepackaged Plan; |
| (ii) | decree that the provisions in the Confirmation Order and the Prepackaged Plan are non-severable and mutually dependent; |
| (iii) | authorize the Debtors, as applicable/necessary, to: (a) implement the Restructuring Transactions, (b) distribute the New Common Interests (including the Tranche C Commitment Equity), pursuant to the exemption from registration under the Securities Act provided by section 1145 of the Bankruptcy Code, section 4(a)(2) of the Securities Act, or Regulation S under the Securities Act, as applicable; (c) make all distributions and issuances as required under the Prepackaged Plan, including Cash, the New Common Interests; and (d) enter into any agreements, transactions, and sales of property as set forth in the Plan Supplement, in each case, in a manner consistent with the terms of the Restructuring Support Agreement and subject to the consent rights set forth therein; |
58
| (iv) | authorize the implementation of the Prepackaged Plan in accordance with its terms; and |
| (v) | provide that, pursuant to section 1146 of the Bankruptcy Code, the assignment or surrender of any lease or sublease, and the delivery of any deed or other instrument or transfer order, in furtherance of, or in connection with the Prepackaged Plan, including any deeds, bills of sale, or assignments executed in connection with any disposition or transfer of assets contemplated under the Prepackaged Plan, shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax; and |
| (b) | the Debtors shall have obtained all authorizations, consents, regulatory approvals, rulings, or documents that are necessary to implement and effectuate the Prepackaged Plan; |
| (c) | the final version of each of the Prepackaged Plan, the Definitive Documents, and all documents contained in any supplement to the Prepackaged Plan, including the Plan Supplement and any exhibits, schedules, amendments, modifications, or supplements thereto or other documents contained therein shall have been executed or filed, as applicable in form and substance consistent in all respects with the Restructuring Support Agreement, the Prepackaged Plan, and comply with the applicable consent rights set forth in the Restructuring Support Agreement and/or the Prepackaged Plan for such documents and shall not have been modified in a manner inconsistent with the Restructuring Support Agreement; |
| (d) | the Restructuring Support Agreement shall not have been terminated as to the Required Consenting Creditors, shall be in full force and effect, and the Debtors and the other parties thereto shall be in compliance therewith; |
| (e) | the DIP Facility shall be in full force and effect and there shall be no defaults continuing unless waived by the requisite DIP Lenders party thereto; |
| (f) | the New Exit Facility, including all documentation related thereto, shall have been consummated; |
| (g) | all Professional Fee Amounts that require the approval of the Bankruptcy Court shall have been paid in full or amounts sufficient to pay such fees and expenses after the Effective Date shall have been funded into the Professional Fee Account pending the approval of such fees and expenses by the Bankruptcy Court; |
| (h) | all outstanding Restructuring Expenses and all outstanding reasonable and documented fees and expenses of the Agents/Trustees, including estimated fees and expenses through the Effective Date shall have been paid in full in Cash; |
59
| (i) | no court of competent jurisdiction or other competent governmental or regulatory authority shall have issued a final and non-appealable order making illegal or otherwise restricting, preventing or prohibiting the consummation of the Prepackaged Plan; |
| (j) | the conditions to effectiveness of the New LLC Agreement shall have been duly satisfied or waived and the New Common Interests will be issued in accordance with the Distribution Record Date; |
| (k) | the Debtors shall have implemented the Restructuring Transactions and all transactions contemplated in the Prepackaged Plan in a manner consistent with the Restructuring Support Agreement (and subject to, and in accordance with, the consent rights set forth therein). |
| B. | Waiver of Conditions. |
Except as otherwise specified in the Prepackaged Plan or the Restructuring Support Agreement, any one or more of the conditions to Consummation (or component thereof) set forth in this Article IX (other than entry of the Confirmation Order) may be waived by the Debtors with the prior written consent of the Required Consenting Creditors, without notice, leave, or order of the Bankruptcy Court or any formal action other than proceedings to confirm or consummate the Prepackaged Plan.
| C. | Effect of Failure of Conditions. |
If Consummation does not occur as to any Debtor, the Prepackaged Plan shall be null and void in all respects as to such Debtor and nothing contained in the Prepackaged Plan, the Disclosure Statement or Restructuring Support Agreement as to such Debtor shall: (1) constitute a waiver or release of any Claims by the Debtors, any Holders of Claims or Interests or any other Entity; (2) prejudice in any manner the rights of the Debtors, any holders of Claims or Interests, or any other Entity; or (3) constitute an admission, acknowledgment, offer, or undertaking by the Debtors, any holders of Claims or Interests, or any other Entity.
| D. | Substantial Consummation |
“Substantial Consummation” of the Prepackaged Plan, as defined in 11 U.S.C. § 1101(2), shall be deemed to occur on the Effective Date.
60
ARTICLE X.
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
A. Modification and Amendments.
Except as otherwise specifically provided in this Prepackaged Plan and subject to the consent rights set forth in the Restructuring Support Agreement, the Debtors reserve the right to modify the Prepackaged Plan, whether such modification is material or immaterial, and seek Confirmation consistent with the Bankruptcy Code and, as appropriate, not resolicit votes on such modified Prepackaged Plan. Subject to those restrictions on modifications set forth in the Prepackaged Plan and the requirements of section 1127 of the Bankruptcy Code, Rule 3019 of the Federal Rules of Bankruptcy Procedure, and, to the extent applicable, sections 1122, 1123, and 1125 of the Bankruptcy Code, each of the Debtors expressly reserves its respective rights to revoke or withdraw, or to alter, amend, or modify the Prepackaged Plan with respect to such Debtor, one or more times, after Confirmation, and, to the extent necessary may initiate proceedings in the Bankruptcy Court to so alter, amend, or modify the Prepackaged Plan, or remedy any defect or omission, or reconcile any inconsistencies in the Prepackaged Plan, the Disclosure Statement, or the Confirmation Order, in such matters as may be necessary to carry out the purposes and intent of the Prepackaged Plan.
| B. | Effect of Confirmation on Modifications. |
Entry of the Confirmation Order shall mean that all modifications or amendments to the Prepackaged Plan since the solicitation thereof are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or resolicitation under Bankruptcy Rule 3019.
| C. | Revocation or Withdrawal of Prepackaged Plan. |
To the extent permitted by the Restructuring Support Agreement and subject to the consent of the Required Consenting Creditors, the Debtors reserve the right to revoke or withdraw the Prepackaged Plan prior to the Confirmation Date and to File subsequent plans of reorganization. If the Debtors revoke or withdraw the Prepackaged Plan, or if Confirmation or Consummation does not occur, then: (1) the Prepackaged Plan shall be null and void in all respects; (2) any settlement or compromise embodied in the Prepackaged Plan (including the fixing or limiting to an amount certain of any Claim or Interest or Class of Claims or Interests), assumption or rejection of Executory Contracts or Unexpired Leases effected under the Prepackaged Plan, and any document or agreement executed pursuant to the Prepackaged Plan, shall be deemed null and void; and (3) nothing contained in the Prepackaged Plan shall: (a) constitute a waiver or release of any Claims or Interests; (b) prejudice in any manner the rights of such Debtor or any other Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by such Debtor or any other Entity.
ARTICLE XI.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or relating to, the Chapter 11 Cases and the Prepackaged Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, and to the fullest extent permissible by 28 U.S.C. § 1334 to hear, and by 28 U.S.C. § 157 to determine, all proceedings in respect thereof, including, without limitation, for the following purposes:
61
| (a) | allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests; |
| (b) | decide and resolve all matters related to the granting and denying, in whole or in part, any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Prepackaged Plan; |
| (c) | resolve any matters related to: (a) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor may be liable and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Cures pursuant to section 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; (c) the Reorganized Debtors amending, modifying, or supplementing, after the Effective Date, pursuant to Article V hereof, any Executory Contracts or Unexpired Leases to the list of Executory Contracts and Unexpired Leases to be assumed or rejected or otherwise; and (d) any dispute regarding whether a contract or lease is or was executory or expired; |
| (d) | to resolve disputes concerning Disputed Claims and consider the allowance, classification, priority, compromise, estimation, secured or unsecured status, amount or payment of any Claim, including any Administrative Claims, including any dispute over the application to any Claim of any limitation on its allowance set forth in sections 502 or 503 of the Bankruptcy Code or asserted under non-bankruptcy Law pursuant to section 502(b)(1) of the Bankruptcy Code; |
| (e) | ensure that distributions to holders of Allowed Claims and Allowed Interests (as applicable) are accomplished pursuant to the provisions of the Prepackaged Plan; |
| (f) | adjudicate, decide, or resolve any motions, adversary proceedings, contested or litigated matters, and any other matters, and grant or deny any applications involving a Debtor that may be pending on the Effective Date; |
| (g) | adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code; |
| (h) | enter and implement such orders as may be necessary to execute, implement, or consummate the provisions of the Prepackaged Plan and all contracts, instruments, releases, indentures, and other agreements or documents created or entered into in connection with the Prepackaged Plan or the Disclosure Statement, including the Restructuring Support Agreement; |
62
| (i) | enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code; |
| (j) | resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Prepackaged Plan or any Entity’s obligations incurred in connection with the Prepackaged Plan; |
| (k) | issue injunctions, enter and implement other orders, or take such other actions as may be necessary to restrain interference by any Entity with Consummation or enforcement of the Prepackaged Plan; |
| (l) | resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, exculpations, and other provisions contained in Article VIII hereof and enter such orders as may be necessary or appropriate to implement such releases, injunctions, and other provisions; |
| (m) | resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by the Holder of a Claim or Interest for amounts not timely repaid pursuant to Article VII.F hereof; |
| (n) | enter and implement such orders as are necessary if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated; |
| (o) | determine any other matters that may arise in connection with or relate to the Prepackaged Plan, the Plan Supplement, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Prepackaged Plan or the Disclosure Statement, including the Restructuring Support Agreement; |
| (p) | enter an order concluding or closing the Chapter 11 Cases; |
| (q) | adjudicate any and all disputes arising from or relating to distributions under the Prepackaged Plan; |
| (r) | consider any modifications of the Prepackaged Plan in accordance with section 1127 of the Bankruptcy Code, to cure any defect or omission, or to reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order; |
| (s) | determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code; |
63
| (t) | hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Prepackaged Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Prepackaged Plan; |
| (u) | hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code; |
| (v) | to recover all assets of the Debtors and property of the Debtors’ Estates, wherever located; |
| (w) | hear and determine all disputes involving the existence, nature, scope, or enforcement of any exculpations, discharges, injunctions, and releases granted in the Prepackaged Plan, including under Article VIII hereof; |
| (x) | enforce all orders previously entered by the Bankruptcy Court; and |
| (y) | hear any other matter not inconsistent with the Bankruptcy Code. |
As of the Effective Date, notwithstanding anything in this Article XI to the contrary, the New Corporate Governance Documents, the New Common Interests, New Exit Facility, and any documents related thereto shall be governed by the jurisdictional provisions therein and the Bankruptcy Court shall not retain jurisdiction with respect thereto.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
| A. | Immediate Binding Effect. |
Subject to Article IX.A hereof and notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of the Prepackaged Plan (including, for the avoidance of doubt, the documents and instruments contained in the Plan Supplement) shall be immediately effective and enforceable and deemed binding upon the Debtors, the Reorganized Debtors, any and all holders of Claims or Interests (irrespective of whether such holders of Claims or Interests have, or are deemed to have accepted the Prepackaged Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Prepackaged Plan, each Entity acquiring property under the Prepackaged Plan, and any and all non-Debtor parties to Executory Contracts and Unexpired Leases with the Debtors.
| B. | Additional Documents. |
On or before the Effective Date, and consistent in all respects with the terms of the Restructuring Support Agreement, the Debtors may file with the Bankruptcy Court such agreements and other documents as may be necessary to effectuate and further evidence the terms and conditions of the Prepackaged Plan and the Restructuring Support Agreement. The Debtors or the Reorganized Debtors, as applicable, and all holders of Claims or Interests receiving distributions pursuant to the Prepackaged Plan and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Prepackaged Plan.
64
| C. | Payment of Statutory Fees. |
All fees due and payable pursuant to section 1930 of Title 28 of the U.S. Code, together with the statutory rate of interest set forth in section 3717 of Title 31 of the U.S. Code to the extent applicable (“U.S. Trustee Fees”) prior to the Effective Date shall be paid by the Debtors on the Effective Date. After the Effective Date, the Reorganized Debtors and Disbursing Agent shall be jointly and severally liable to pay any and all U.S. Trustee Fees when due and payable. The Debtors shall file all monthly operating reports due prior to the Effective Date when they become due, using UST Form 11-MOR. After the Effective Date, each of the Reorganized Debtors and Disbursing Agent shall file with the Bankruptcy Court separate UST Form 11-PCR reports when they become due. Each and every one of the Debtors and the Reorganized Debtors shall remain obligated to pay U.S. Trustee Fees to the Office of the U.S. Trustee until the earliest of that particular Debtor or Reorganized Debtor’s case being closed, dismissed, or converted to a case under Chapter 7 of the Bankruptcy Code. The U.S. Trustee shall not be required to file any Administrative Claim in the case and shall not be treated as providing any release under the Prepackaged Plan.
| D. | Statutory Committee and Cessation of Fee and Expense Payment. |
On the Confirmation Date, any statutory committee appointed in the Chapter 11 Cases shall dissolve and members thereof shall be released and discharged from all rights and duties from or related to the Chapter 11 Cases. The Reorganized Debtors shall no longer be responsible for paying any fees or expenses incurred by the members of or advisors to any statutory committees after the Confirmation Date.
| E. | Reservation of Rights. |
Except as expressly set forth in the Prepackaged Plan, the Prepackaged Plan shall have no force or effect unless the Bankruptcy Court shall enter the Confirmation Order, and the Confirmation Order shall have no force or effect if the Effective Date does not occur. None of the Filing of the Prepackaged Plan, any statement or provision contained in the Prepackaged Plan, or the taking of any action by any Debtor with respect to the Prepackaged Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of any Debtor with respect to the holders of Claims or Interests prior to the Effective Date.
| F. | Successors and Assigns. |
The rights, benefits, and obligations of any Entity named or referred to in the Prepackaged Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, Affiliate, officer, manager, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.
65
| G. | Notices. |
All notices, requests, and demands to or upon the Debtors to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:
| Debtors |
Counsel to the Debtors | |
| View, Inc. 6280 America Center Drive, Suite 200 San Jose, California 95002 Attention: Bill Krause, Chief Legal Officer and Secretary |
Cole Schotz P.C. Court Plaza North 25 Main Street Hackensack, NJ 07601 Attention: Michael D. Sirota, David M. Bass, Daniel J. Harris, and Matteo Percontino
-and-
Cole Schotz P.C. 500 Delaware Avenue, Suite 1410 Wilmington, Delaware 19801 Attention: Patrick J. Reilley and Stacy L. Newman | |
| Co-Counsel to the Consenting Creditors |
Co-Counsel to the Consenting Creditors | |
| Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Attention: Stephen Hessler, Jason Hufendick, and Margaret R. Alden |
Gibson, Dunn & Crutcher, LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Attention: Matthew J. Williams and AnnElyse Scarlett Gains | |
After the Effective Date, the Reorganized Debtors have the authority to send a notice to Entities that to continue to receive documents pursuant to Bankruptcy Rule 2002, such Entity must file a renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Reorganized Debtors are authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have Filed such renewed requests.
| H. | Term of Injunctions or Stays. |
Unless otherwise provided in the Prepackaged Plan or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Prepackaged Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Prepackaged Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
66
| I. | Entire Agreement. |
Except as otherwise indicated, and without limiting the effectiveness of the Restructuring Support Agreement, the Prepackaged Plan (including, for the avoidance of doubt, the documents and instruments in the Plan Supplement) supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into the Prepackaged Plan.
| J. | Plan Supplement. |
All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Prepackaged Plan as if set forth in full in the Prepackaged Plan. After the exhibits and documents are Filed, copies of such exhibits and documents shall be available upon written request to the Debtors’ counsel at the address above or by downloading such exhibits and documents from the Debtors’ restructuring website at https://cases.ra.kroll.com/View or the Bankruptcy Court’s website at https://www.deb.uscourts.gov/. To the extent any exhibit or document is inconsistent with the terms of the Prepackaged Plan, unless otherwise ordered by the Bankruptcy Court, the non-exhibit or non-document portion of the Prepackaged Plan shall control.
| K. | Severability of Prepackaged Plan Provisions. |
If, prior to Confirmation, any term or provision of the Prepackaged Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Prepackaged Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Prepackaged Plan, as it may have been altered or interpreted in accordance with the foregoing, is: (1) valid and enforceable pursuant to its terms; (2) integral to the Prepackaged Plan and may not be deleted or modified without the Debtors’ or Reorganized Debtors’ consent, as applicable; and (3) non-severable and mutually dependent.
| L. | Votes Solicited in Good Faith. |
Upon entry of the Confirmation Order, the Debtors will be deemed to have solicited votes on the Prepackaged Plan in good faith and in compliance with section 1125(g) of the Bankruptcy Code, and pursuant to section 1125(e) of the Bankruptcy Code, the Debtors, the Consenting Creditors, and each of their respective Affiliates, agents, representatives, members, principals, stockholders, officers, directors, employees, advisors, and attorneys will be deemed to have participated in good faith and in compliance with the Bankruptcy Code in the offer, issuance, sale, and purchase of securities offered and sold under the Prepackaged Plan and any previous plan, and, therefore, neither any of such parties or individuals nor the Reorganized Debtors will have any liability for the violation of any applicable Law, rule, or regulation governing the solicitation of votes on the Prepackaged Plan or the offer, issuance, sale, or purchase of the Securities offered and sold under the Prepackaged Plan and any previous plan.
67
| M. | Closing of Chapter 11 Cases. |
The Reorganized Debtors shall, promptly after the full administration of the Chapter 11 Cases, File with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court to close the Chapter 11 Cases.
| N. | Waiver or Estoppel. |
Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtors or their counsel, or any other Entity, if such agreement was not disclosed in the Prepackaged Plan, the Disclosure Statement, or papers Filed with the Bankruptcy Court prior to the Confirmation Date.
| O. | Creditor Default |
An act or omission by a Holder of a Claim or an Interest (other than the Consenting Creditors or DIP Lenders) in contravention of the provisions of this Prepackaged Plan shall be deemed an event of default under this Prepackaged Plan. Upon an event of default, the Reorganized Debtors may seek to hold the defaulting party in contempt of the Confirmation Order and shall be entitled to reasonable attorneys’ fees and costs of the Reorganized Debtors in remedying such default. Upon the finding of such a default by a creditor, the Bankruptcy Court may: (a) designate a party to appear, sign and/or accept the documents required under the Prepackaged Plan on behalf of the defaulting party, in accordance with Bankruptcy Rule 7070; (b) enforce the Prepackaged Plan by order of specific performance; (c) award judgment against such defaulting creditor in favor of the Reorganized Debtor in an amount, including interest, to compensate the Reorganized Debtors for the damages caused by such default; and (d) make such other order as may be equitable that does not materially alter the terms of the Prepackaged Plan.
68
| Dated: May 19, 2024 | VIEW, INC. | |||||
| VIEW OPERATING CORPORATION | ||||||
| IOTIUM, INC. | ||||||
| /s/ Rao Mulpuri | ||||||
| Dr. Rao Mulpuri, Director | ||||||
| Authorized Signatory | ||||||
69
Exhibit A
Restructuring Support Agreement
Exhibit 3.1
EXECUTION VERSION
LIMITED LIABILITY COMPANY AGREEMENT
OF
VIEW OPERATIONS, LLC
This limited liability company agreement (this “Agreement”) of View Operations, LLC, a Delaware limited liability company (formerly View, Inc., the “LLC”), is entered into by View TopCo, LLC, as the sole member (the “Member”), as of May 22, 2024.
The Member, by execution of this Agreement, hereby forms a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del.C. §18-101, et seq.), as amended from time to time (the “Act”), and hereby agrees as follows:
1. Name. The name of the limited liability company is “View Operations, LLC”. The business of the LLC may be conducted under any other name that complies with applicable law as the Member may from time to time deem necessary or desirable.
2. Purpose. The LLC is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the LLC is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
3. Principal Office. The principal office address of the LLC shall be such place as the Member may determine from time to time. The Member may establish additional offices as it deems necessary.
4. Member. The Member shall have a limited liability company interest in the LLC and the respective rights, powers, duties and obligations as provided in the Act, except, to the extent permitted by the Act, as otherwise provided herein.
5. Management. Management, control and operation of the LLC is vested exclusively in, or under the direction of, the Member. The Member may delegate the duties of managing the day-to-day business operations of the LLC to other persons in accordance with Section 6 hereto.
6. Delegation of Authority to Officers and Others.
(a) The Member may appoint individuals to act as agents or officers (each, an “Officer” and collectively, the “Officers”) of the LLC with such titles and authority as shall be delegated to such persons by the Member from time to time.
(b) Subject to the provisions of this Agreement, the Officers shall have such rights, powers, authority and responsibilities, general or specific, as may be expressly delegated to them pursuant to this Agreement or as determined from time to time by the Member pursuant to a written consent of the Member. Officers shall be subject to removal with or without cause at any time by the Member.
(c) The Member agrees that all determinations, decisions and actions made or taken by any of the Officers in accordance with the authority delegated to such Officer in this Agreement or in any written consent of the Member shall be conclusive and absolutely binding upon the LLC, the Member and its successors, assigns and personal representatives.
(d) Persons dealing with the LLC are entitled to rely conclusively upon the power and authority of the Officers as set forth in this Agreement. A certified copy of the written consent of the Member certifying that an individual is an Officer shall be conclusive evidence that such individual is an Officer, and such individual’s actions as an Officer shall be authorized and binding on the LLC.
(e) The execution of the Certificate of Formation of the Company by the person that executed such certificate is hereby approved and ratified as the actions of an authorized person of the Company for such purpose.
7. Capital Contributions.
(a) The Member shall have no obligation to make any capital contributions to the LLC, but may, in its sole discretion, make such capital contributions to the LLC as the Member may deem necessary or advisable in connection with the business of the LLC from time to time.
(b) The provisions of this Section 7 are intended solely to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the LLC other than the Member (and no such creditor of the LLC shall be a third party beneficiary of this Agreement). The Member shall not have a duty or obligation to any creditor of the LLC to make any contribution to the LLC or to issue any call for capital pursuant to this Section 7.
8. Common Units. The limited liability company interest of the Member shall be divided into units designated as “Common Units”. The Member owns 1,000 common units, which represent 100% of the outstanding Common Units.
9. Distributions.
(a) The Member shall not be entitled to interest on its capital contributions to the LLC or have the right to distributions or the return of any contribution to the capital of the LLC, except for distributions in accordance with this Section 9 or upon dissolution of the LLC in accordance with Section 15. To the fullest extent permitted by law, the Member shall not be liable for the return of any such amounts. Notwithstanding any provision in this Agreement to the contrary, the LLC shall not make a distribution to the Member on account of its interest in the LLC if such distribution would violate the Act or other applicable law.
(b) Distributions shall be made either in cash or in kind to the Member at the times and in the aggregate amounts determined by the Member.
2
10. Assignments and Transfers of Interests. The Member may transfer all or any portion of its Common Units and any and all rights and/or obligations associated therewith. The transferee of Common Units shall be admitted to the LLC as a member of the LLC upon the effectiveness of such transfer. If the transferring Member is the sole member and transfers all of its Common Units, upon the effectiveness of such transfer, the transferee shall automatically be deemed admitted to the LLC as a substituted member of the LLC, the Member shall simultaneously be deemed to have resigned from the LLC as a member of the LLC, and the LLC shall continue without dissolution (and all applicable references herein to the “Member” shall be read as references to the transferee as the substituted member of the LLC).
11. Admission of Additional Members. One or more additional member(s) may be admitted to the LLC with the written consent of the Member. Upon admission to the LLC of any additional member(s), the members shall cause this Agreement to be amended and restated to reflect the admission of such additional member(s) and the initial capital contribution, if any, of such additional member(s), and to include such other provisions as the members may agree to reflect the change of status of the LLC from a single member limited liability company to a limited liability company with two or more members.
12. Liability of the Member. To the maximum extent permitted by applicable law, the Member shall not have any personal liability to the LLC for the breach of any express or implied duty of loyalty or duty of care.
13. Exculpation and Indemnification.
(a) Except as otherwise provided under the Act, no member, in such capacity, shall be liable for any debts, liabilities, contracts or any other obligations of the LLC, except for and only to the extent of such member’s capital contribution, and then only to the extent and under the circumstances set forth in the Act, or for any debts, liabilities, contracts or obligations of any other member. Except as otherwise provided in the Act, this Agreement or in any separate written instrument signed by the Member, no member of the LLC shall be obligated personally for any debt, obligation or liability of the LLC or of any other member solely by reason of being a member of the LLC. Except as otherwise provided in the Act, by applicable law or expressly in this Agreement, no member shall have any fiduciary or other duty to another member with respect to the business and affairs of the LLC. No member shall have any responsibility to contribute to or in respect of the liabilities or obligations of the LLC or to return distributions made by the LLC, except as required by the Act or other applicable law.
(b) No member, manager, Officer, or any direct or indirect officer, director, affiliate stockholder, member or partner of a member (each, an “Indemnitee”), shall be liable, responsible or accountable in damages or otherwise to the LLC or any member for any act or failure to act by such Indemnitee in connection with the conduct of the business of the LLC, or by any other such Indemnitee in performing or participating in the performance of the obligations of the LLC, so long as such Indemnitee acted in the good faith belief that such action or failure to act was in the best interests, or not opposed to the best interests, of the LLC and/or its subsidiaries and such action or failure to act was not in material violation of this Agreement and did not constitute gross negligence or willful misconduct. Except as otherwise required by the Act, no person who
3
is a member, manager or Officer, or any combination of the foregoing, shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the LLC, whether such debt, obligation or liability arises in contract, tort or otherwise, solely by reason of being a member, manager, Officer or any combination of the foregoing.
(c) The LLC hereby acknowledges that certain Indemnitees may have certain rights to other indemnification, advancement of expenses and/or insurance (collectively, the “Other Indemnitors”). The LLC hereby agrees that it (i) is the indemnitor of first resort (i.e., its obligations to an Indemnitee are primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnitee are secondary), (ii) shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all losses, claims, damages, liabilities and expenses (including attorneys’ fees, judgments, fines, penalties and amounts paid in settlement) to the extent legally permitted and as required by the terms of this Agreement (or any other agreement between the LLC and an Indemnitee), without regard to any rights an Indemnitee may have against the Other Indemnitors, and (iii) irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The LLC further agrees that no advancement or payment by the Other Indemnitors on behalf of an Indemnitee with respect to any claim for which such Indemnitee has sought indemnification from the LLC shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against the LLC. The LLC and each Indemnitee agree that the Other Indemnitors are express third party beneficiaries of the terms of this Section 14.
(d) The LLC shall indemnify and hold harmless each Indemnitee to the fullest extent permitted by applicable law against losses, damages, liabilities, costs or expenses (including reasonable attorneys’ fees and expenses and amounts paid in settlement) incurred by any such Indemnitee in connection with any action, suit or proceeding to which such Indemnitee may be made a party or otherwise involved or with which it shall be threatened by reason of its being a member, manager, Officer, or any direct or indirect officer, director, affiliate stockholder or partner of a member, or while acting as (or on behalf of) a member on behalf of the LLC or in the LLC’s interest. Such attorneys’ fees and expenses shall be paid by the LLC as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnitee to repay such amounts if it is ultimately determined that such Indemnitee is not entitled to indemnification with respect thereto.
(e) The right of an Indemnitee to indemnification hereunder shall not be exclusive of any other right or remedy that a member, manager or Officer may have pursuant to applicable law or this Agreement.
(f) An Indemnitee shall be fully protected in relying in good faith upon the records of the LLC and upon such information, opinions, reports or statements presented to the LLC by any person as to matters the Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the LLC, including information, opinions, reports or statements as to the value and amount of the assets, liabilities or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.
4
(g) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the LLC or to any other Indemnitee, an Indemnitee acting within the scope of this Agreement shall not be liable to the LLC or to any other Indemnitee for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the LLC or any other Indemnitee. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of an Indemnitee otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Indemnitee.
(h) The foregoing provisions of this Section 14 shall (i) survive any termination of this Agreement, and (ii) be contract rights, and no amendment, modification, supplement, restatement or repeal of this Section 14 shall have the effect of limiting or denying any such rights with respect to actions giving rise to losses, damages, liabilities, costs or expenses (including reasonable attorneys’ fees and expenses and amounts paid in settlement) prior to any such amendment, modification, supplementation or repeal.
14. Dissolution.
(a) Subject to the occurrence of an event of dissolution pursuant to Section 15(b), the LLC shall have perpetual existence.
(b) The LLC shall dissolve, and its affairs shall be wound up, upon the written consent of the Member,
(c) In the event of dissolution, the LLC shall wind up its affairs (including the sale of the assets of the LLC) in an orderly manner, and the assets of the LLC shall be applied in the manner, and in the order of priority, set forth in the Act. As part of the winding up process, any amounts permitted to be distributed to the Member in accordance with the Act shall be distributed to the Member.
15. Amendments. Except as otherwise provided in this Agreement or in the Act, any amendments to this Agreement may be made by written consent of the Member.
16. Successors and Assigns. This Agreement shall be binding upon the parties and their respective successors, executors, administrators, legal representatives, heirs and legal assigns and shall inure to the benefit of the parties and, except as otherwise provided herein, their respective successors, executors, administrators, legal representatives, heirs and legal assigns.
17. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, without giving effect to principles of conflicts of laws, and all rights and remedies shall be governed by said laws. The Member intends the provisions of the Act to be controlling as to any matters not set forth in this Agreement.
18. No Benefit of Third Parties. Subject to Section 14(c), the provisions of this Agreement are intended only for the regulation of relations among the Member and former or prospective members of the LLC. Subject to Section 14(c), this Agreement is not intended for the benefit of any other persons.
5
19. Severability. Each provision of this Agreement shall be considered separable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal.
20. Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile or other electronic signature. All counterparts shall be construed together and shall constitute one instrument.
21. Entire Agreement. This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the date first written above.
| SOLE MEMBER: | ||
| VIEW TOPCO , LLC | ||
| By: | /s/ Howard Lutnick | |
| Name: | Howard Lutnick | |
| Title: | Chairman | |
[Signature Page to LLC Agreement of View Operations, LLC – May 2024]
| COMPANY: | ||
| VIEW OPERATIONS, LLC | ||
| By: | /s/ William Krause | |
| Name: | William Krause | |
| Title: | Chief Legal Officer and Secretary | |
[Signature Page to LLC Agreement of View Operations, LLC – May 2024]
Exhibit 4.1
Execution Version
CREDIT AGREEMENT
Dated as of May 22, 2024
among
VIEW TOPCO, LLC,
as Holdings,
VIEW OPERATIONS, LLC,
as the Borrower,
THE LENDERS PARTY HERETO,
and
CANTOR FITZGERALD SECURITIES,
as Administrative Agent and Collateral Agent
FOR U.S. FEDERAL INCOME TAX PURPOSES, THE LOANS UNDER THIS AGREEMENT HAVE BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED). UPON WRITTEN REQUEST, THE BORROWER WILL PROMPTLY MAKE AVAILABLE TO LENDER THE FOLLOWING INFORMATION WITH RESPECT TO ANY LOAN HEREUNDER: (1) THE ISSUE PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE LOANS AND (3) THE YIELD TO MATURITY OF THE LOANS. LENDER SHOULD CONTACT THE LEGAL DEPARTMENT OF THE BORROWER AT (408) 263-9200.
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 |
||||||
| DEFINITIONS |
2 | |||||
| Section 1.01 |
Defined Terms | 2 | ||||
| Section 1.02 |
[Reserved] | 29 | ||||
| Section 1.03 |
Terms Generally | 29 | ||||
| Section 1.04 |
Accounting Terms | 30 | ||||
| Section 1.05 |
Effectuation of Transactions | 30 | ||||
| Section 1.06 |
Timing of Payment of Performance | 30 | ||||
| Section 1.07 |
Times of Day | 30 | ||||
| Section 1.08 |
Cashless Rollovers | 30 | ||||
| Section 1.09 |
[Reserved] | 30 | ||||
| Section 1.10 |
Certain Calculations | 30 | ||||
| Section 1.11 |
Rates | 31 | ||||
| ARTICLE 2 |
||||||
| THE CREDITS |
31 | |||||
| Section 2.01 |
Commitments | 31 | ||||
| Section 2.02 |
Loans and Borrowings | 32 | ||||
| Section 2.03 |
Requests for Borrowings | 32 | ||||
| Section 2.04 |
Funding of Borrowings | 33 | ||||
| Section 2.05 |
Interest Elections; Continuation | 33 | ||||
| Section 2.06 |
Termination and Reduction of Commitments | 34 | ||||
| Section 2.07 |
Repayment of Loans; Evidence of Debt; Amortization | 34 | ||||
| Section 2.08 |
Prepayment of Loans | 35 | ||||
| Section 2.09 |
Fees | 37 | ||||
| Section 2.10 |
Interest and Acceptance Fees | 38 | ||||
| Section 2.11 |
Alternate Rate of Interest | 39 | ||||
| Section 2.12 |
Incremental Credit Extensions | 40 | ||||
| Section 2.13 |
Taxes | 41 | ||||
| Section 2.14 |
Payments Generally; Allocation of Proceeds; Sharing of Payments | 46 | ||||
| Section 2.15 |
Defaulting Lenders | 48 | ||||
| ARTICLE 3 |
||||||
| REPRESENTATIONS AND WARRANTIES |
49 | |||||
| Section 3.01 |
Organization; Powers | 49 | ||||
| Section 3.02 |
Authorization; Enforceability | 50 | ||||
| Section 3.03 |
Governmental Approvals; No Conflicts | 50 | ||||
| Section 3.04 |
Financial Condition; No Material Adverse Effect | 50 | ||||
| Section 3.05 |
Properties | 50 | ||||
| Section 3.06 |
Compliance with Laws | 51 | ||||
| Section 3.07 |
Investment Company Status | 51 | ||||
| Section 3.08 |
Taxes | 51 | ||||
| Section 3.09 |
Security Interest in Collateral | 51 | ||||
| Section 3.10 |
Solvency | 52 | ||||
| Section 3.11 |
OFAC; USA PATRIOT Act and FCPA | 52 | ||||
| ARTICLE 4 |
||||||
| CONDITIONS |
53 | |||||
| Section 4.01 |
Closing Date | 53 | ||||
| Section 4.02 |
Delayed Draw Funding Dates | 55 | ||||
| ARTICLE 5 |
||||||
| AFFIRMATIVE COVENANTS |
56 | |||||
| Section 5.01 |
Financial Statements and Other Reports | 56 | ||||
| Section 5.02 |
Existence | 56 | ||||
| Section 5.03 |
Maintenance of Properties | 57 | ||||
| Section 5.04 |
Insurance | 57 | ||||
| Section 5.05 |
Maintenance of Book and Records | 57 | ||||
| Section 5.06 |
Use of Proceeds | 57 | ||||
| Section 5.07 |
Covenant to Guarantee Obligations and Provide Security | 57 | ||||
| Section 5.08 |
Further Assurances | 58 | ||||
| Section 5.09 |
Anti-Corruption Laws; Sanctions | 59 | ||||
| Section 5.10 |
Compliance with the Holdings LLCA. Holdings will comply with Section 5.10(a) of the Holdings LLCA | 59 | ||||
ii
| ARTICLE 6 |
||||||
| NEGATIVE COVENANTS |
59 | |||||
| Section 6.01 |
Indebtedness and Liens | 59 | ||||
| Section 6.02 |
Restricted Payments | 60 | ||||
| Section 6.03 |
Fundamental Changes; Dispositions.: | 60 | ||||
| Section 6.04 |
Transactions With Affiliates | 61 | ||||
| ARTICLE 7 |
||||||
| EVENTS OF DEFAULT |
61 | |||||
| Section 7.01 |
Events of Default | 61 | ||||
| ARTICLE 8 |
||||||
| THE AGENTS |
65 | |||||
| Section 8.01 |
Administrative Agent and Collateral Agent | 65 | ||||
| Section 8.02 |
Erroneous Payments | 76 | ||||
| ARTICLE 9 |
||||||
| MISCELLANEOUS |
78 | |||||
| Section 9.01 |
Notices | 78 | ||||
| Section 9.02 |
Waivers; Amendments | 79 | ||||
| Section 9.03 |
Expenses; Indemnity | 83 | ||||
| Section 9.04 |
Waiver of Claim | 86 | ||||
| Section 9.05 |
Successors and Assigns | 86 | ||||
| Section 9.06 |
Survival | 87 | ||||
| Section 9.07 |
Counterparts; Integration; Effectiveness | 87 | ||||
| Section 9.08 |
Severability | 87 | ||||
| Section 9.09 |
Right of Setoff | 87 | ||||
| Section 9.10 |
Governing Law; Jurisdiction; Consent to Service of Process | 88 | ||||
| Section 9.11 |
Waiver of Jury Trial | 89 | ||||
| Section 9.12 |
Headings | 89 | ||||
| Section 9.13 |
Confidentiality | 89 | ||||
| Section 9.14 |
No Fiduciary Duty | 91 | ||||
| Section 9.15 |
Electronic Execution of Assignments and Certain Other Documents | 92 | ||||
| Section 9.16 |
Several Obligations | 92 | ||||
iii
| Section 9.17 |
USA PATRIOT Act | 92 | ||||
| Section 9.18 |
Disclosure of Agent Conflicts | 92 | ||||
| Section 9.19 |
Appointment for Perfection | 92 | ||||
| Section 9.20 |
Interest Rate Limitation | 92 | ||||
| Section 9.21 |
[Reserved] | 93 | ||||
| Section 9.22 |
Conflicts | 93 | ||||
| Section 9.23 |
Release of Guarantors | 93 |
| SCHEDULES: |
||||
| Schedule 1.01(a) | – | Commitment Schedule | ||
| Schedule 5.07(c) | – | Deposit Accounts | ||
| Schedule 9.01 | – | Notice Information | ||
| EXHIBITS: | ||||
| Exhibit A | – | Form of Borrowing Request | ||
| Exhibit B | – | [Reserved] | ||
| Exhibit C | – | Form of Interest Election Request | ||
| Exhibit D | – | Form of Promissory Note | ||
| Exhibit E-1 – E-4 | – | Forms of U.S. Tax Compliance Certificates | ||
| Exhibit F | Form of Prepayment Notice | |||
iv
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of May 22, 2024 (this “Agreement”), is by and among View TopCo, LLC, a Delaware limited liability company (“Holdings”), View Operations, LLC, a Delaware limited liability company (the “Borrower”), the Term Lenders from time to time party hereto, Cantor Fitzgerald Securities, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent” and together with the Administrative Agent, collectively, the “Agents”) for the Term Lenders.
RECITALS
WHEREAS, View, Inc. (“View”) was incorporated as a Delaware corporation pursuant to and in accordance with the General Corporation Law of the State of Delaware (“DGCL”) on September 17, 2019, under the name “CF Finance Acquisition Corp. II” and changed its name to “View, Inc.” on March 8, 2021, by the filing of an Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware in accordance with Sections 228, 242 and 245 of the DGCL;
WHEREAS, pursuant to the Borrower’s Joint Prepackaged Chapter 11 Plan of Reorganization of View and its Debtor Affiliates Docket No. 15 (such plan, as may be amended, supplemented or otherwise modified from time to time, the “Prepackaged Plan”), which was confirmed by the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) on May 20, 2024 (the “Order”), Holdings was formed as a Delaware limited liability company by filing a Certificate of Formation with the Secretary of State of the State of Delaware on May 17, 2024 and entering into the Original LLC Agreement (as defined in the Holdings LLCA);
WHEREAS, pursuant to the Order and as set forth in the Prepackaged Plan, among other things, (a) all of View’s Equity Securities (as defined in the Holdings LLCA) authorized, issued or outstanding prior to the Effective Date (as defined in the Prepackaged Plan) were cancelled, released and extinguished, (b) newly issued shares of common stock of View were distributed pursuant to the Prepackaged Plan, (c) the persons who received common stock of View pursuant to the Prepackaged Plan contributed 100% of such common stock to Holdings in exchange for Class A Common Units (as defined in the Holdings LLCA) in the amounts as set forth on Schedule A to the Holdings LLCA, (d) View converted to a limited liability company that is wholly owned by Holdings and became disregarded as an entity separate from Holdings for U.S. federal income tax purposes and (e) it is intended that Holdings will be treated as a continuation of View pursuant to a reorganization under Section 368(a)(1)(F) of the Code;
WHEREAS, in connection with the foregoing, the Borrower has requested that the Term Lenders extend credit under this Agreement consisting of (a) the Initial Term Loans to be funded on the Closing Date in an aggregate principal amount equal to $17,500,000, (b) the Tranche B Delayed Draw Term Loan Commitments in an aggregate principal amount equal to $7,500,000 and (c) the Tranche C Delayed Draw Term Loan Commitments in an aggregate principal amount equal to $25,000,000; and
WHEREAS, the Term Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“Additional Agreement” has the meaning assigned to such term in Section 8.01(t).
“Administrative Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with, that Person. None of the Administrative Agent, any Term Lender or any of their respective Affiliates shall be considered an Affiliate of the Borrower or any subsidiary thereof. With respect to any Term Lender, for the avoidance of doubt, Affiliate shall include any limited partners of, or investors in, such Lender.
“Agent Fee Letter” means that certain fee letter, dated as of the date hereof, by and among, inter alios, the Borrower and the Administrative Agent, as amended.
“Agents” has the meaning assigned to such term in the preamble to this Agreement.
“Agreement” has the meaning assigned to such term in the preamble to this Credit Agreement.
“Alternate Base Rate” means, as of any date of determination, a rate of interest per annum determined by the Administrative Agent (in consultation with the Required Lenders).
“Anti-Money Laundering Laws” means any and all laws, rules or regulations of any jurisdiction relating to money laundering or terrorism financing applicable to the Borrower or any Subsidiary by virtue of such Person being organized or operating in such jurisdiction, including but not limited to (a) 18 U.S.C. §§ 1956 and 1957 and (b) the Bank Secrecy Act, 31 U.S.C. §§ 5311 et seq., as amended by the USA PATRIOT Act and its implementing regulations.
“Applicable Percentage” means, (a) with respect to any Term Lender, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Loans and unused Commitments of such Lender and the denominator of which is aggregate outstanding principal amount of the Loans and unused Commitments of all Lenders and (b) with respect to any Term Lender of a particular Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Loans of such Class and unused Commitments of such Class of such Term Lender and the denominator of which is the aggregate outstanding principal amount of the Loans of such Class and unused Commitments of such Class of all Term Lenders of such Class.
2
“Applicable Rate” means (a) in respect of any period for which interest on all Loans is timely paid in cash (and not as PIK Interest) in full on the applicable Interest Payment Date 7.50% per annum, and (b) in respect of any period with respect to which the Borrower has made an election to pay interest as PIK Interest, pursuant to Section 2.10(c), 14.00% per annum.
“Approved Fund” means, with respect to any Term Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers, advises or manages such Lender.
“Available Incremental Amount” means an aggregate principal amount of up to $15,000,000, which amount shall be reduced by the aggregate principal amount of Incremental Loans and Incremental Equivalent Debt previously incurred.
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Bankruptcy Court” has the meaning assigned to such term in the preamble to this Agreement.
“Board” means the Board of Governors of the Federal Reserve System of the U.S.
“Borrower” has the meaning assigned to such term in the preamble to this Agreement.
“Borrowing” means any Loans made or continued on the same date and as to which a single Interest Period is in effect.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form attached hereto as Exhibit A or such other form that is reasonably acceptable to the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent).
“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, New York City (New York, U.S.).
“Cantor Representative” means, initially, Cantor Fitzgerald Securities, in its capacity as a Term Lender hereunder; provided that if Cantor Fitzgerald Securities transfers all of its Loans to any of its Affiliates, then such Affiliate shall automatically be deemed the successor to Cantor Fitzgerald Securities in its capacity as a Term Lender hereunder.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
3
“Cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance with GAAP.
“Change in Law” means
(a) the adoption of any law, treaty, rule or regulation after the Closing Date;
(b) any change in any law, treaty, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date; or
(c) compliance by any Term Lender with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date).
For purposes of this definition, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” has the meaning assigned to such term in the Holdings LLCA.
“Chapter 11 Cases” means those certain voluntary proceedings brought before the Bankruptcy Court by the Borrower in connection with the Prepackaged Plan.
“Charged Amounts” has the meaning assigned to such term in Section 9.20.
“Class” refers, when used in reference to (a) any Loan or Borrowing, to whether such Loan or the Loans comprising such Borrowing, have identical terms and conditions, which may include Initial Term Loans, Delayed Draw Term Loans or Incremental Loans, (b) any Commitment, to whether such Commitment is a Commitment in respect of a separate Class of Loans and (c) any Term Lender, whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.
“Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Closing Date Refinancing” means the repayment in full in cash of all outstanding obligations under the DIP Facility.
“Code” means the Internal Revenue Code of 1986, as amended.
4
“Collateral” means any and all property of any Loan Party subject (or purported to be subject) to a Lien under any Collateral Document and any and all other property of any Loan Party, now existing or hereafter acquired, that is or becomes subject (or purported to be subject) to a Lien pursuant to any Collateral Document to secure the Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Collateral and Guarantee Requirements” means, at any time, subject to (a) the applicable limitations set forth in this Agreement and/or any other Loan Document, (b) the time periods (and extensions thereof) set forth in Section 5.07 and/or Section 5.08, as applicable, and (c) the requirement that the Collateral Agent shall have received in the case of any Subsidiary that is acquired, formed or incorporated after the Closing Date the following:
(a) a joinder to the Loan Guarantee in substantially the form attached as an exhibit thereto;
(b) a supplement to the Security Agreement in substantially the form attached as an exhibit thereto;
(c) if the respective Subsidiary owns registrations of or applications for IP Rights that constitute Collateral, one or more Intellectual Property Security Agreements;
(d) UCC financing statements in appropriate form for filing in such jurisdictions as the Collateral Agent may reasonably request (at the direction of the Cantor Representative, or, if the Cantor Representative is no longer a Lender, the Required Lenders);
(e) the filing of appropriate Intellectual Property Security Agreements with the U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable;
(f) each item of Collateral that such Subsidiary is required to deliver under Section 4.02 of the Security Agreement, if applicable (which, for the avoidance of doubt, shall be delivered within the applicable time period set forth in Section 5.08(a));
(g) with respect to any Material Real Estate Asset, evidence of the satisfaction of the Real Estate Collateral Requirements; and
(h) with respect to any Deposit Account of a Loan Party (other than Holdings) that is not an Excluded Account, a Control Agreement.
Notwithstanding anything to the contrary contained herein or any other Loan Document, no actions in any non-U.S. jurisdiction or required by the law of any non-U.S. jurisdiction shall be required in order to create a security interest in any assets or to perfect or make enforceable such security interest (including property registered or applied-for in any non-U.S. jurisdiction) it being understood that there shall be no security agreement or pledge agreement governed under the laws of any non-U.S. jurisdiction or any requirement to make any filings in any foreign jurisdiction.
5
“Collateral Documents” means, collectively, (a) the Security Agreement, (b) each Mortgage (if any) and/or each Leasehold Mortgage (if any), (c) each Intellectual Property Security Agreement, (d) any supplement to any of the foregoing delivered pursuant to the Collateral and Guarantee Requirements and (e) each other document and/or instrument pursuant to which any Loan Party grants (or purports to grant) a Lien on any Collateral as security for payment of the Obligations.
“Commercial Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment” means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Delayed Draw Term Loan Commitment, Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment in effect as of such time.
“Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Confidential Information” has the meaning assigned to such term in Section 9.13.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” means, with respect to Collateral consisting of any Deposit Account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, among the Collateral Agent, the financial institution or other person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party (other than Holdings) maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Collateral Agent.
“Debtor Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the U.S. or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting Lender” means any Term Lender that has:
(a) defaulted in (or is otherwise unable to perform) its obligations under this Agreement, including, without limitation, to make a Loan within two Business Days of the date required to be made by it hereunder unless such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied;
6
(b) notified the Administrative Agent or the Borrower in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally (unless such writing indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied);
(c) failed, within two Business Days after the request of the Administrative Agent or the Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent;
(d) become (or any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any Governmental Authority; or
(e) become the subject of (i) a bankruptcy or insolvency proceeding or (ii) has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Term Lender subject to this clause (e), the Borrower and the Administrative Agent (upon written instruction from the Required Lenders) have each determined that such Lender intends, and has all approvals required to enable it (in form and substance satisfactory to the Borrower and, subject to the review and approval of the Required Lenders, the Administrative Agent), to continue to perform its obligations as a Term Lender hereunder; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party.
“Delayed Draw Funding Date” means any Tranche B Delayed Draw Funding Date or any Tranche C Delayed Draw Funding Date, as applicable.
“Delayed Draw Term Lender” means any Term Lender with a Delayed Draw Term Loan Commitment or any outstanding Delayed Draw Term Loan.
“Delayed Draw Term Loan” means any Tranche B Delayed Draw Term Loan or any Tranche C Delayed Draw Term Loan, as applicable.
7
“Delayed Draw Term Loan Commitment” means, with respect to each Delayed Draw Term Lender, such Delayed Draw Term Lender’s Tranche B Delayed Draw Term Loan Commitment and/or Tranche C Delayed Draw Term Loan Commitment in effect as of such time.
“Delayed Draw Term Loan Termination Date” means either the Tranche B Delayed Draw Term Loan Termination Date or the Tranche C Delayed Draw Term Loan Termination Date, as applicable.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced by an instrument (within the meaning of the UCC).
“Derivative Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity (including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees, members of management, managers or consultants of the Borrower or its Subsidiaries shall constitute a Derivative Transaction.
“DIP Facility” means the senior secured debtor in possession financing facility of the Borrower, in the aggregate principal amount of $17,500,000, entered into on the terms and conditions set forth in the DIP Facility Documents.
“DIP Facility Documents” means the documents governing the DIP Facility that are entered into in accordance with the DIP Facility Term Sheet (as defined in the Restructuring Support Agreement), and the DIP Orders, and any amendments, modifications, and supplements thereto, and together with any related notes, certificates, agreements, security agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) related to or executed in connection therewith.
“DIP Orders” means, together, the Interim DIP Order and the Final DIP Order.
“Disposition” means the sale, lease, license, sublease or other disposition of any property of any Person.
“Dollars” or “$” refers to lawful money of the U.S.
8
“Eligible Assignee” means (a) any Term Lender and (b) any other Person approved by the Required Lenders; provided that in any event, “Eligible Assignee” shall not include (i) any natural person or (ii) Holdings, the Borrower or any of their respective Subsidiaries; provided further, that any Eligible Assignee with respect to Delayed Draw Term Loans other than the Cantor Representative or the RXR Representative shall be subject to the Cantor Representative’s consent, which consent may be reasonably withheld; provided that in any case the following shall not be Eligible Assignees: (x) any Person that the Cantor Representative determines (in its sole discretion) is not a sufficiently creditworthy entity, (y) any Person that is a competitor of any Cantor Representative and in the same or a similar line of business as any Cantor Representative and (z) any “vulture fund” or Person that purchases distressed debt in the ordinary course of its business.
“Environment” means ambient air, indoor and outdoor air, surface water, groundwater, drinking water, soil, land surface and subsurface strata, natural resources, wetlands, flora and fauna.
“Environmental Laws” means any and all applicable current foreign or domestic, federal, state, provincial, territorial (or any subdivision of any of them) laws, statutes, ordinances, orders, legally binding rules, regulations, judgments, Governmental Authorizations, or any other applicable legally binding requirements of or agreements with Governmental Authorities and the common law relating to (a) protection of the Environment or human health and safety (to the extent relating to the exposure to Hazardous Materials), or (b) the generation, management, use, storage, transportation or disposal of or exposure to Hazardous Materials or any other Hazardous Materials Activity.
“Environmental Liability” means any liability (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), resulting from or based upon (a) any Environmental Law, (b) the generation, management, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials or any other Hazardous Materials Activity, (c) exposure of any person to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, written agreement or other consensual binding arrangement to the extent liability is assumed or imposed with respect to any of the foregoing.
“Event of Default” has the meaning assigned to such term in Article 7.
“Excluded Accounts” means each account of the Borrower or any U.S. Subsidiary thereof (A) that is comprised of (x) funds specifically and exclusively used or to be used for payroll and payroll taxes and other employee benefit payments to or for the benefit of any Loan Party’s employees, and (y) funds specifically and exclusively used or to be used to pay Taxes required to be collected, remitted or withheld (including withholding Taxes (including the employer’s share thereof)) or (B) in which the daily average balance across all such accounts not subject to Control Agreements at no time exceeds $25,000 individually and $100,000 in the aggregate.
9
“Excluded Assets” means, as of any date of determination, each of the following (as may be supplemented with the consent of the Required Lenders)):
(a) any asset in which the granting or perfection of a security interest would (i) be prohibited by any enforceable anti-assignment provision set forth in any contract that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than assets subject to Finance Leases and purchase money financings), (ii) violate the terms of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the case of Finance Leases and purchase money financings) or (iii) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement pursuant to any “change of control” or similar provision (to the extent such contract is binding on such asset at the time of its acquisition and not incurred in contemplation thereof) (in the case of clauses (i) and (ii) above and this clause (iii), after giving effect to any applicable anti-assignment provision of the UCC or other applicable Requirements of Law); it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any contract described in this clause (a) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other applicable Requirement of Law notwithstanding the relevant prohibition, violation or termination right;
(b) any “intent-to-use” Trademark application prior to the filing and acceptance of a “Statement of Use”, “Amendment to Allege Use” or similar notice and/or filing with respect thereto, to the extent, if any, that, and solely during the period if any, in which, the grant of a security interest therein would impair the validity or enforceability, or result in the voiding, of such intent-to-use Trademark application or any registration issuing therefrom under applicable Requirements of Law;
(c) any asset in which the granting or perfection of a security interest in which would (i) require any governmental or regulatory consent, approval, license or authorization that has not been obtained, (ii) be prohibited by applicable Requirements of Law (including, without limitation, rules and regulations of any Governmental Authority or agency), except, in each case of clause (i) above and this clause (ii), to the extent such requirement or prohibition would be rendered ineffective under the UCC or any other applicable Requirement of Law notwithstanding such requirement or prohibition; it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any asset described in this clause (c) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other applicable Requirement of Law notwithstanding the relevant requirement or prohibition or (iii) result in a material adverse tax consequences to the Borrower, any Subsidiary and/or the Borrower’s direct or indirect owners, as reasonably determined in good faith by the Borrower and the Administrative Agent (at the direction of the Cantor Representative, or, if the Cantor Representative is no longer a Lender, the Required Lenders);
(d) any lease, license or agreement or other asset subject to a purchase money security interest, Finance Lease or similar arrangement that is, in each case, permitted by this Agreement to the extent that the grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, Finance Lease or similar arrangement or create or trigger a right of termination in favor of any other party thereto (other than the Borrower and its Subsidiaries) after giving effect to the applicable anti-
10
assignment provisions of the UCC or any other applicable Requirement of Law; it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any asset described in this clause (d) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or other applicable Requirements of Law notwithstanding the relevant violation or invalidation;
(e) if applicable in any jurisdiction, Commercial Tort Claims where the amount of damages to be recovered (as reasonably estimated by the Borrower) is less than $50,000 except to the extent a security interest therein can be perfected by the filing of a UCC-1 financing statement (or other similar filing);
(f) each account of the Borrower or any U.S. Subsidiary that constitutes an Excluded Account if and for so long as the accounts described therein are used solely for the purposes described in the definition of “Excluded Accounts”; and
(g) any asset with respect to which the Collateral Agent (at the direction of the Cantor Representative, or, if the Cantor Representative is no longer a Lender, the Required Lenders) and the Borrower have reasonably determined that the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the relevant Secured Parties afforded thereby;
provided that if any of the foregoing shall cease to be an Excluded Asset, a security interest shall attach to such asset, in accordance with the terms of the Loan Documents, immediately at such time as such prohibition ceases to be in effect.
Notwithstanding anything to the contrary contained herein, Excluded Assets shall not include the assets constituting the MDA Collateral.
“Excluded Subsidiary” means (a) any Non-U.S. Subsidiary of Holdings that both (i) as of the last day of the most recently ended Test Period, had (A) revenues for such Test Period and (B) total assets on such date, in each case in an amount that is less than 1.00% of the consolidated revenues and total assets, respectively, of Holdings and its Subsidiaries for such Test Period or on such date; provided that all such Non-U.S. Subsidiaries of Holdings, taken together, as of the last day of the most recently ended Test Period, shall have had revenues for such Test Period and total assets on such date in an amount that is less than 3.00% of the combined revenues or total assets, respectively, of Holdings and its Subsidiaries for such Test Period or on such date, as applicable and (ii) does not own any IP Rights material to the operation of Holdings and its Subsidiaries, taken as a whole, and (b) any non-Wholly Owned Subsidiary of Holdings. As of the Closing Date, each Non-U.S. Subsidiary of the Borrower is an Excluded Subsidiary.
“Excluded Taxes” means, with respect to the Administrative Agent, any Term Lender or any other recipient (in each case, a “Recipient”), any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on (or measured by) net income (however denominated), franchise Taxes, or branch profits Taxes imposed under Section 884(a) of the Code, in each case, (i) imposed as a
11
result of such Recipient being organized or having its principal office located in or, in the case of any Term Lender, having its applicable lending office located in, the taxing jurisdiction (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in case of a Term Lender, any U.S. federal withholding tax that is imposed on amounts payable to or for the account of such Lender pursuant to a Requirement of Law in effect at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that the relevant Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from any Loan Party (other than Holdings) with respect to such withholding tax pursuant to Section 2.13, (c) any tax imposed as a result of a failure or inability (except to the extent such inability is due to a Change in Law) by such Recipient to comply with Section 2.13(f) and (d) any U.S. federal withholding taxes imposed under FATCA.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCPA” has the meaning assigned to such term in Section 3.11(c).
“Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate.
“Final DIP Order” means any order approving the DIP Facility and related relief on a final basis.
“Finance Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a finance lease on the balance sheet of that Person.
“Fiscal Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31 of each year.
“Flood Hazard Property” means any parcel of any Material Real Estate Asset located in the U.S. that is (or required to be) subject to a Mortgage that has Improvements (as defined in the Flood Insurance Laws) in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
“Flood Insurance Laws” means, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973), (b) the Flood Insurance Reform Act of 2004 and (c) the Biggert-Waters Flood Insurance Reform Act of 2012.
12
“Foreign Lender” means any Term Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“GAAP” means generally accepted accounting principles in the U.S. (or such other jurisdiction of organization of such Loan Party) in effect and applicable to the accounting period in respect of which reference to GAAP is made.
“Governmental Authority” means any federal, state, provincial, territorial, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S., a foreign government or any political subdivision thereof.
“Governmental Authorization” means any permit, license, authorization, approval, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Guarantee” of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“Hazardous Materials” means any material, substance, waste or chemical, including any constituent thereof, which is classified, defined, regulated or otherwise characterized as “hazardous”, or “toxic” or as a “pollutant” or “contaminant” or words of similar meaning or regulatory effect pursuant to any Environmental Laws due to its dangerous or deleterious properties or characteristics.
13
“Hazardous Materials Activity” means any activity, event or occurrence involving any Hazardous Material that is regulated, prohibited or restricted under any Environmental Laws, including the use, manufacture, possession, storage, Release, threatened Release, discharge, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge Agreement” means any agreement with respect to any Derivative Transaction between the Borrower or any Subsidiary and any other Person.
“Holdings” has the meaning assigned to such term in the preamble to this Agreement.
“Holdings LLCA” means the Amended and Restated Limited Liability Company Agreement of Holdings, dated as of 22, 2024 (as further amended, restated, supplemented or otherwise modified from time to time).
“Incremental Amendment” means an amendment to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Incremental Lender providing an Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, on such Incremental Loan Closing Date agreeing to provide an Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, on such Incremental Loan Closing Date, and the Administrative Agent.
“Incremental Equivalent Debt” means one or more series of senior unsecured notes or loans, senior secured first lien or junior lien notes or loans, subordinated (secured or unsecured) notes or loans, or secured (first lien or junior lien) or unsecured mezzanine Indebtedness (or, in each case, commitments in respect thereof), in the case of securities, whether issued in a public offering, Rule 144A or other private placement or any bridge facility in lieu of the foregoing or otherwise, constituting senior or pari passu lien Indebtedness, Junior Lien Indebtedness or unsecured Indebtedness or Indebtedness not secured by the Collateral, which Indebtedness is issued or incurred by Borrower or any of its Subsidiaries in lieu of Incremental Revolving Credit Commitments, Incremental Term Loan Commitments and/or Incremental Term Loans pursuant to an indenture, loan agreement, credit agreement, note purchase agreement or otherwise; provided that (a) the aggregate principal amount of any Incremental Equivalent Debt incurred or issued pursuant to this Agreement (and commitments in respect thereof) shall not, together with the aggregate principal amount of any Incremental Revolving Credit Commitments, Incremental Term Loan Commitments and/or Incremental Term Loans incurred or issued substantially simultaneously with such Incremental Equivalent Debt, but excluding any PIK Interest on Incremental Loans or Incremental Equivalent Debt, exceed the Available Incremental Amount at the time of incurrence or issuance thereof, (b) the optional prepayment or redemption provisions and the interest rate (including margin and floors) applicable to any such Incremental Equivalent Debt will be determined by Holdings, the Borrower and the Persons providing such Incremental Equivalent Debt, (c) any Incremental Equivalent Debt (to the extent pari passu in right of payment with, and secured by all or a portion of the Collateral on a pari passu basis with, the Obligations) may provide for the ability to participate on a pro rata basis or less than pro rata basis in any mandatory repayments or prepayments of principal of Term Loans hereunder, and (d) the other terms and conditions of such Incremental Equivalent Debt shall be reasonable.
14
“Incremental Lender” means any Term Lender with an Incremental Revolving Credit Commitment, an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
“Incremental Loan” means any Incremental Term Loan Commitment or Incremental Revolving Credit Commitment provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Incremental Loan Closing Date” means the effective date of an Incremental Amendment or the funding date with respect to any Incremental Equivalent Debt.
“Incremental Revolving Commitment Tranche” has the meaning assigned to such term in Section 2.12(a).
“Incremental Revolving Credit Commitment” means any Incremental Revolving Commitment Tranche or Revolving Commitment Increase.
“Incremental Term Loan” means the Term Loans funded pursuant to Section 2.12.
“Incremental Term Loan Commitment” means, with respect to each Incremental Lender, the commitment of such Incremental Lender to make Incremental Term Loans hereunder.
“Indebtedness” as applied to any Person means, without duplication:
(a) all indebtedness for borrowed money;
(b) that portion of obligations with respect to Finance Leases to the extent recorded as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(c) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(d) any obligation of such Person owed for all or any part of the deferred purchase price of property or services (excluding (i) any earn out obligation or purchase price adjustment until such obligation becomes a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP, (ii) accrued expenses and trade accounts payable in the ordinary course of business (including on an inter-company basis), (iii) compensation for services and (iv) liabilities associated with customer prepayments and deposits), which purchase price is (A) due more than three months from the date of incurrence of the obligation in respect thereof or (B) evidenced by a note or similar written instrument;
15
(e) all Indebtedness of others that is secured by any Lien on any asset owned or held by such Person regardless of whether the Indebtedness secured thereby has been assumed by such Person or is non-recourse to the credit of such Person;
(f) the face amount of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings;
(g) the Guarantee by such Person of the Indebtedness of another; and
(h) all net obligations of such Person in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes;
provided that the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any third person (including any partnership in which such Person is a general partner and any unincorporated Joint Venture in which such Person is a Joint Venture) to the extent such Person would be liable therefor under applicable Requirements of Law or any agreement or instrument by virtue of such Person’s ownership interest in such Person, except to the extent that pursuant to terms of such Indebtedness such Person is not liable therefor.
Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:
(i) Guarantees (other than Guarantees of Indebtedness) incurred in the ordinary course of business or consistent with past practices;
(ii) prepaid or deferred revenue arising in the ordinary course of business;
(iii) in connection with the purchase by the Borrower or any Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner; or
(iv) for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, deferred compensatory or employee or director equity plans, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes.
16
“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
“Initial Term Lender” means any Term Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term Loan Commitment” means, with respect to each Initial Term Lender, the commitment of such Initial Term Lender to make Initial Term Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Initial Term Lender’s name on the Commitment Schedule, as the same may be reduced from time to time pursuant to Section 2.06. The aggregate amount of the Initial Term Lenders’ Initial Term Loan Commitments on the Closing Date is $17,500,000.
“Initial Term Loans” means the term loans made by the Initial Term Lenders to the Borrower pursuant to Section 2.01(a) and shall include any PIK Interest thereon.
“Intellectual Property Security Agreement” means any agreement, or a supplement thereto, executed on or after the Closing Date confirming or effecting the grant of any Lien on IP Rights owned by any Loan Party to the Collateral Agent, for the benefit of the Secured Parties, in accordance with this Agreement and the Security Agreements, including any Intellectual Property Security Agreement substantially in the form of an exhibit thereto.
“Interest Election Request” means a request by the Borrower in the form of Exhibit C or another form reasonably acceptable to the Administrative Agent to continue a Borrowing in accordance with Section 2.05.
“Interest Payment Date” means the last day of the Interest Period applicable to the Borrowing of which such Loan is a part; provided that if any Interest Period for a Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates.
“Interest Period” means with respect to any Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one (1), three (3) or six (6) months thereafter; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
17
“Interim DIP Order” means an order by the Bankruptcy Court approving the DIP Facility and related relief on an interim basis.
“Investment” means (a) any purchase or other acquisition by the Borrower or any of its Subsidiaries of any Capital Stock of any other Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or fixed assets of any other Person or any division or line of business or other business unit of any other Person; and (c) any loan, advance or capital contribution by the Borrower or any of its Subsidiaries to any other Person. The amount of any Investment shall be the original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale but not in excess of the amount of the relevant initial Investment). In no event shall a guarantee of an operating lease of the Borrower or any Subsidiary be deemed to be an Investment.
“IP Rights” means all intellectual property rights, including any and all intellectual property or proprietary rights provided under (a) patent law, including design patent and industrial design law, (b) copyright law, (c) trademark law or (d) any other applicable statutory provision or common law principle, that provides a proprietary right in ideas, trade secrets, formulae, algorithms, concepts, inventions, know how, domain names, computer software, database or design, or the expression or use thereof.
“IRS” means the United States Internal Revenue Service.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form.
“Junior Lien Indebtedness” means any Indebtedness that is secured by a security interest in the Collateral (other than Indebtedness among the Borrower and/or its Subsidiaries) that is expressly junior or subordinated to the Lien securing the Obligations with respect to the Collateral.
“Latest Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or commitment hereunder at such time, including the latest maturity or expiration date of any Loan.
“Leasehold Mortgage” means any mortgage or deed of trust, in form and substance reasonably satisfactory to the Collateral Agent, pursuant to which the Borrower grants to the Collateral Agent (on behalf of itself and the Term Lenders), a Lien upon the applicable Real Estate Asset leased by Borrower as security for the Obligations.
“Lenders” means the Initial Term Lenders, any Delayed Draw Term Lender, any Incremental Lender and any other Person that becomes a party hereto as a Term Lender.
18
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment by way of security, deposit arrangement, encumbrance, lien (statutory or other), charge, collateral assignment (by way of security or otherwise), or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Finance Lease having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Loan” means any Initial Term Loan, any Delayed Draw Term Loan and any Incremental Loan.
“Loan Documents” means this Agreement, any Promissory Note, the Loan Guarantee, the Collateral Documents and any other document or instrument designated by the Borrower and/or the Administrative Agent as a “Loan Document.” Any reference in this Agreement or any other Loan Document to any Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan Guarantee” means the Guarantee Agreement, dated as of the date hereof, executed by each Loan Party thereto and the Administrative Agent for the benefit of the Secured Parties, as supplemented in accordance with the terms of Section 5.08.
“Loan Guarantor” means Holdings, any Subsidiary Guarantor and, as to the Obligations of each other Loan Guarantor, the Borrower.
“Loan Parties” means Holdings, the Borrower and each Subsidiary Guarantor.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, financial condition or results of operations, in each case, of the Loan Parties and their Subsidiaries, taken as a whole, (b) the rights and remedies (taken as a whole) of the Agents under the applicable Loan Documents or (c) the ability of any Loan Party to perform its obligations under the applicable Loan Documents.
“Material Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material Real Estate Asset” means each “fee-owned” Real Estate Asset acquired after the Closing Date or any Real Estate Asset leased by any Loan Party or any of its Subsidiaries after the Closing Date that is located in the United States and, with respect to any such “fee-owned” Real Estate Asset, has a fair market value, as of the date of acquisition thereof, (as reasonably determined by the Borrower after taking into account any liabilities with respect thereto that impact such fair market value) of $500,000 or more, and, with respect to any such leased Real Estate Asset, involves annual base rent payments, as of the date such lease is executed, in the amount of $100,000 or more.
“Maturity Date” means, with respect to the Initial Term Loans and the Delayed Draw Term Loans, the Term Loan Maturity Date.
19
“Maximum Rate” has the meaning assigned to such term in Section 9.20.
“MDA Collateral” means assets and property constituting collateral under the MDA Security Agreement.
“MDA Security Agreement” means that certain Purchase Money Security Agreement, dated as of December 1, 2010 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof), between the Borrower, as debtor, and the Mississippi Development Authority, acting for and on behalf of the State of Mississippi, as secured party.
“Member” has the meaning assigned to such term in the Holdings LLCA.
“Mortgage” means any mortgage (including any Leasehold Mortgage), deed of trust, deeds to secure debt or other agreement which conveys or evidences a Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Net Proceeds” means, with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and customary fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith.
“New Common Interests” has the meaning assigned to such term in the Restructuring Support Agreement.
“Non-U.S. Subsidiary” means any existing or future direct or indirect subsidiary of the Borrower that is not a U.S. Subsidiary.
“Obligations” means (i) all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding (or that would accrue but for the operation of applicable bankruptcy or insolvency laws), regardless of whether allowed or allowable in such proceeding) on the Loans at the applicable rate as specified herein or as allowed by applicable law, including at the default rate as applicable, (ii) all accrued and unpaid fees, premiums (including any Prepayment Premium) and (iii) all expenses (including fees, premiums (including any Prepayment Premium) and expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding (or that would accrue but for the operation of applicable bankruptcy or insolvency laws), regardless of whether allowed or allowable in such proceeding), reimbursements, indemnities and all other advances to, debts, liabilities and obligations of any Loan Party to the Term Lenders or to any Term Lender, the Agents or any indemnified party arising under the Loan Documents in respect of any Loan or otherwise, whether direct or indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.
“OFAC” has the meaning assigned to such term in Section 3.11(a).
20
“Olive Branch Lease” means that certain Industrial Lease Agreement, dated July 30, 2010, by and between Industrial Developments International, Inc., and Soladigm, Inc., as amended by that certain First Amendment to Industrial Lease Agreement, dated September 10, 2015, by and between Industrial North American Properties XI, LLC (as successor-in-interest to Industrial Developments International, Inc.), and the Borrower (formerly known as Soladigm, Inc.), as further amended by that certain Second Amendment to Industrial Lease, dated March 1, 2018, by and between Industrial North American Properties XI, LLC and the Borrower.
“Olive Branch Leased Property” means that certain real property leased by Borrower pursuant to the Olive Branch Lease relating to the premises located at 12380 Kirk Road, Suite 100, Olive Branch, Mississippi 38654.
“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws; (b) with respect to any limited partnership, its certificate or declaration of limited partnership and its partnership agreement; (c) with respect to any general partnership, its partnership agreement; (d) with respect to any limited liability company, its articles of organization or certificate of formation, and its operating agreement; and (e) with respect to any other form of entity, such other organizational documents required by local Requirements of Law or customary under such jurisdiction to document the formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Loan Document, or having sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary Taxes or any intangible, recording, filing or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document, but excluding any such Taxes that are Other Connection Taxes imposed with respect to an assignment or participation.
“Payment” has the meaning assigned to such term in Section 8.02(a).
“Payment Notice” has the meaning assigned to such term in Section 8.02(b).
“Perfection Requirements” means (a) the filing of appropriate financing statements with the applicable office of the Secretary of State or other appropriate office in the state of organization of each Loan Party; (b) the filing of appropriate Intellectual Property Security Agreements with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable; (c) the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in each case in favor of the Collateral Agent for the benefit of the Secured Parties; (d) the delivery to the Collateral Agent of any stock certificate or promissory note together with instruments of transfer executed in blank, in each case, to the extent required by the applicable Loan Documents; and (e) the execution and delivery of Control Agreements with respect to certain Deposit Accounts to the extent required by Section 5.07(c).
21
“Person” means any individual, natural person, corporation, business trust, family trust, Joint Venture, association, company, partnership, limited liability company, unlimited liability company, Governmental Authority or any other entity.
“PIK Interest” has the meaning assigned to such term in Section 2.10(c).
“Prepackaged Plan” has the meaning assigned to such term in the preliminary statements hereto.
“Prepayment Notice” means a notice from the Borrower of any prepayment of any Borrowing of Loans pursuant to Section 2.08(a) substantially in the form attached hereto as Exhibit F or such other form that is reasonably acceptable to the Administrative Agent.
“Prepayment Premium” means, in respect of any Loans outstanding as of any date, an amount equal to the (a) for the period from the Closing Date through May 22, 2025, the product of (i) the principal amount of the Loans being prepaid on the date of the related Prepayment Premium Event pursuant to Section 2.09(c), multiplied by (ii) 2.00%, and (b) for the period after May 22, 2025 through May 22, 2026, the product of (i) the principal amount of the Loans being prepaid on the date of the related Prepayment Premium Event pursuant to Section 2.09(c), multiplied by (ii) 1.00%.
“Primary Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Promissory Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit D, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from the Loans made by such Lender.
“Real Estate Asset” means, at any time of determination, all right, title and interest (fee, leasehold or otherwise) of any Loan Party in and to real property (including, but not limited to, land, improvement and fixtures thereon).
“Real Estate Collateral Requirements” means, with respect to the Material Real Estate Assets, the Collateral Agent shall have received a Mortgage or Leasehold Mortgage, as applicable, in form and substance reasonably acceptable to the Collateral Agent and suitable for recording or filing (provided, however that, notwithstanding the generality of the foregoing or anything else in this Agreement or any other Loan Document to the contrary, with respect to any Leasehold Mortgage, the obligation to deliver such Leasehold Mortgage (and the other deliverables required herein) shall be subject to Borrower obtaining all necessary consents from the applicable landlord to grant such Leasehold Mortgage (and the Borrower will use commercially reasonable efforts to obtain such consent (or, solely with respect to the Olive Branch Leased Property, reasonable best efforts to obtain such consent)), together, with respect to each Mortgage or Leasehold Mortgage, as applicable, for any property located in the United States, the following documents: (a) a fully paid policy of title insurance (or “pro forma” or marked up commitment having the same effect of
22
a title insurance policy) (i) insuring the Lien of such Mortgage or Leasehold Mortgage, as applicable, as a valid first priority Lien, (ii) in an amount not to exceed the fair market value thereof (provided that, in no event, shall the amount of such title insurance exceed, in the aggregate with any other title insurance policy issued with respect to any Mortgage or Leasehold Mortgage, the aggregate amount of the Loans), (iii) issued by a nationally recognized title insurance company reasonably satisfactory to the Collateral Agent, and (iv) that includes such endorsements or affirmative insurance reasonably required by the Collateral Agent and available at a commercially reasonable price in the applicable jurisdiction, (b) with respect to any Mortgage or Leasehold Mortgage, as applicable, a survey, (c) an opinion of local counsel reasonably acceptable to the Collateral Agent, (d) no later than three (3) Business Days prior to the delivery of the Mortgage or the Leasehold Mortgage, as applicable, the following documents and instruments, in order to comply with the Flood Insurance Laws: (A) a completed standard flood hazard determination form and (B) for each Flood Hazard Property, (i) a signed notification to the Borrower and (ii) a copy of the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent in an amount required by Flood Insurance Laws, (e) any existing Phase I environmental site assessment reports prepared in accordance with the current ASTM E1527 standard and (f) such other instruments and documents as the Collateral Agent shall reasonably request (at the direction of the Cantor Representative, or, if the Cantor Representative is no longer a Lender, the Required Lenders).
“Recipient” has the meaning assigned to such term in the definition of “Excluded Taxes”.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the respective directors, managers, officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, disposal, discharge, dumping or leaching into, onto or through the Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material).
“Representative” has the meaning assigned to such term in Section 9.13(a).
“Required Incremental Lenders” means, with respect to an Incremental Loan, the Incremental Lenders having collective Applicable Percentages with respect to such Incremental Loan in excess of 50%.
“Required Lenders” means, at any time, (a) prior to the funding of any Tranche C Delayed Draw Term Loan, the Cantor Representative and the RXR Representative, and (b) after the funding of any Tranche C Delayed Draw Term Loan, (i) so long as the Cantor Representative’s Applicable Percentage in the aggregate is greater than 0% with respect to all Loans, the Cantor Representative, (ii) so long as the Applicable Percentage in the aggregate of the RXR Lenders is at least 25% with respect to all Loans, the RXR Representative, and (iii) if the Cantor Representative’s Applicable Percentage in the aggregate equals 0% with respect to all Loans and the Applicable Percentage in the aggregate of the RXR Lenders is less than 25% with respect to all Loans as of the Closing Date, Lenders having collective Applicable Percentages in the aggregate in excess of 50% with respect to all Loans.
23
“Required Tranche B Delayed Draw Term Lenders” means the Tranche B Delayed Draw Term Lenders having collective Applicable Percentages with respect to Tranche B Delayed Draw Term Loans and unused Tranche B Delayed Draw Term Loan Commitments in excess of 50%.
“Required Tranche C Delayed Draw Term Lenders” means the Tranche C Delayed Draw Term Lenders having collective Applicable Percentages with respect to Tranche C Delayed Draw Term Loans and unused Tranche C Delayed Draw Term Loan Commitments in excess of 50%.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, territorial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” means, with respect to any Person, the chief executive officer, the president, the chief financial officer, the treasurer, any assistant treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices given pursuant to Article 2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of Holdings, except a dividend payable solely in shares of Capital Stock to the holders of such class; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of any shares of any class of the Capital Stock of Holdings and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of Holdings now or hereafter outstanding.
“Restructuring Support Agreement” means that certain Restructuring Support Agreement, dated April 2, 2024, by and among the Borrower, each of the Borrower’s Affiliates party thereto, and the other parties thereto.
24
“Revolving Commitment Increase” has the meaning ascribed to such term in Section 2.12(a).
“RXR Lenders” has the meaning ascribed to such term in the Restructuring Support Agreement.
“RXR Representative” means initially RXR FP GP LLC, in its capacity as Lender hereunder; provided that if RXR FP GP LLC transfers all of its Loans to one or more of its Affiliates, then RXR FP GP LLC shall appoint one of its Affiliates that is then a Term Lender as a replacement RXR Representative. For the avoidance of doubt, there shall only be one (1) RXR Representative at any time.
“SAGE IP Rights” means the Settlement, Release, and Patent Cross-License Agreement, dated May 19, 2015, with SAGE Electronics, Inc., as amended, waived, supplemented or modified from time to time, any other dispute regarding any actual or alleged infringement, misappropriation or other violation of the IP Rights with SAGE Electronics, Inc. or any of its affiliates that may arise from time to time and any IP Rights associated therewith.
“Sanctions” has the meaning assigned to such term in Section 3.11(a).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Secured Parties” means (i) the Term Lenders, (ii) the Agents and (iii) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“Securities Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Security Agreement” means the Pledge and Security Agreement, dated as of the date hereof, among the Loan Parties and the Collateral Agent for the benefit of the Secured Parties.
“Settlement Agreement” means that certain Agreed Order No. 722422 between the Mississippi Commission on Environmental Quality and the Borrower, dated November 8, 2022.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, unlimited liability company, association, Joint Venture or other business entity of which more than 50% (or in the case of a Joint Venture, 50% or more) of the total voting power of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by such Person or
25
one or more of the other subsidiaries of such Person or a combination thereof; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise specified, “Subsidiary” means any subsidiary of the Borrower.
“Subsidiary Guarantor” means (a) on the Closing Date, each Subsidiary of the Borrower (other than any Excluded Subsidiary) and (b) thereafter, each subsidiary of the Borrower that provides a Loan Guarantee pursuant to the terms of this Agreement, in each case, until such time as the relevant Subsidiary is released from its obligations in accordance with Section 9.23.
“Successor Administrative Agent” has the meaning assigned to such term in Section 2.13(f)(iii).
“Take-Private Transaction” means the transactions occurring in connection with the effectiveness of the Prepackaged Plan pursuant to which (a) the Borrower shall emerge from the Chapter 11 Cases as a private corporation as of the Closing Date, (b) the Borrower shall not be voluntarily subjected to any reporting requirements promulgated by the SEC, and (c) the New Common Interests (including the Tranche C Commitment Equity) issued in connection therewith shall not be listed on a recognized U.S. or any foreign stock exchange.
“Taxes” means all present and future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Lender” means any Initial Term Lender, Delayed Draw Term Lender or Incremental Lender having an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
“Term Loan” means any Initial Term Loan, Delayed Draw Term Loan or Incremental Term Loan.
“Term Loan Maturity Date” means May 22, 2029.
“Term SOFR” means for any calculation with respect to a Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the Business Day that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any such Business Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in consultation with the Borrower and the Required Lenders).
26
“Term SOFR Rate” means, with respect to any Borrowing for any Interest Period, an interest rate per annum equal to the Term SOFR Reference Rate for such Interest Period. When used in reference to any Loan or Borrowing, “Term SOFR Rate” shall refer to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Term SOFR Rate as set forth in the preceding sentence.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” has the meaning assigned to such term in the lead-in to Article 5.
“Test Period” means, for any date of determination, the four (4) consecutive fiscal quarters of the Borrower most recently ended as of such date of determination.
“Threshold Amount” means an amount equal to $20,000,000.
“Trademark” means all trade names, trademarks and service marks, logos, trademark and service mark registrations, and applications for trademark and service mark registrations, including all renewals of trademark and service mark registrations, together with the goodwill of the business connected with the use of, and symbolized by, each of the foregoing, and all rights corresponding thereto throughout the world.
“Tranche B Delayed Draw Availability Period” means, the period beginning on the first day following the Closing Date and ending on the Tranche B Delayed Draw Term Loan Termination Date.
“Tranche B Delayed Draw Funding Date” has the meaning assigned to such term in Section 2.01(b).
“Tranche B Delayed Draw Term Lender” means any Term Lender with a Tranche B Delayed Draw Term Loan Commitment or an outstanding Tranche B Delayed Draw Term Loan.
“Tranche B Delayed Draw Term Loan” means the Term Loans funded pursuant to Section 2.01(b) and shall include any PIK Interest thereon.
“Tranche B Delayed Draw Term Loan Commitment” means, with respect to each Tranche B Delayed Draw Term Lender, the commitment of such Tranche B Delayed Draw Term Lender to make Tranche B Delayed Draw Term Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Tranche B Delayed Draw Term Lender’s name on the Commitment Schedule, as the same may be reduced from time to time pursuant to Section 2.06. The aggregate amount of the Tranche B Delayed Draw Term Lenders’ Tranche B Delayed Draw Term Loan Commitments on the Closing Date is $7,500,000.
“Tranche B Delayed Draw Term Loan Termination Date” means the earliest of (a) the date of termination of the Tranche B Delayed Draw Term Loan Commitments pursuant to Section 2.06, (b) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise), and (c) the date that is sixty (60) days prior to the Maturity Date.
“Tranche C Commitment Equity” means 35.80% of the New Common Interests issued on the Closing Date in a private placement pursuant to section 4(a)(2) of the Securities Act of 1933.
27
“Tranche C Delayed Draw Availability Period” means, the period beginning on the date that the Tranche B Delayed Draw Term Loan Commitments are terminated pursuant to Section 2.06 and ending on the Tranche C Delayed Draw Term Loan Termination Date.
“Tranche C Delayed Draw Funding Date” has the meaning assigned to such term in Section 2.01(c).
“Tranche C Delayed Draw Term Lender” means any Term Lender with a Tranche C Delayed Draw Term Loan Commitment or an outstanding Tranche C Delayed Draw Term Loan.
“Tranche C Delayed Draw Term Loan” means the Term Loans funded pursuant to Section 2.01(b) and shall include any PIK Interest thereon.
“Tranche C Delayed Draw Term Loan Commitment” means, with respect to each Tranche C Delayed Draw Term Lender, the commitment of such Tranche C Delayed Draw Term Lender to make Tranche C Delayed Draw Term Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Tranche C Delayed Draw Term Lender’s name on the Commitment Schedule, as the same may be reduced from time to time pursuant to Section 2.06. The aggregate amount of the Tranche C Delayed Draw Term Lenders’ Tranche C Delayed Draw Term Loan Commitments on the Closing Date is $25,000,000.
“Tranche C Delayed Draw Term Loan Termination Date” shall mean the earliest of (a) the date of termination of the Tranche C Delayed Draw Term Loan Commitments pursuant to Section 2.06, (b) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise), and (c) the date that is sixty (60) days prior to the Maturity Date.
“Transaction Costs” means fees, premiums, expenses and other transaction costs (including original issue discount and the Upfront Fee) payable or otherwise borne by the Loan Parties and/or their Subsidiaries in connection with the Transactions.
“Transactions” means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and the Borrowing of Loans hereunder on the Closing Date, (b) the consummation of the transaction under the Prepackaged Plan, (c) the consummation of the Take-Private Transaction, (d) the refinancing of the outstanding obligations under the DIP Facility and (e) the payment of the Transaction Costs.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required to be applied in connection with the creation or perfection of security interests.
“Unused Commitment Fee” has the meaning assigned to such term in Section 2.09(e).
“Upfront Fee” means a closing fee in an amount equal to 3.00% of the aggregate principal amount of the Initial Term Loan Commitments, the Tranche B Delayed Draw Term Loan Commitments and the Tranche C Delayed Draw Term Loan Commitments.
“U.S.” or “United States” means the United States of America.
28
“U.S. Subsidiary” means any existing or future direct or indirect subsidiary of the Borrower that is organized under the laws of the United States, any state thereof or the District of Columbia.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.14(f).
“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“Wholly-Owned Subsidiary” of any Person means a subsidiary of such Person, 100% of the Capital Stock of which (other than directors’ qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) shall be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
Section 1.02 [Reserved].
Section 1.03 Terms Generally.
(h) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein or in any Loan Document (including any Loan Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified or extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications or extensions, replacements or refinancings set forth herein); (ii) any reference to any Requirement of Law in any Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding or interpreting such Requirement of Law; (iii) any reference herein or in any Loan Document to any Person shall be construed to include such Person’s successors and permitted assigns; (iv) the words “herein,” “hereof” and “hereunder,” and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision hereof; (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan Document; (vi) in the computation of periods of time in any Loan Document from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” mean “to but excluding” and the word “through” means “to and including”; and (vii) the words “asset” and “property”, when used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including Cash, securities, accounts and contract rights.
29
(i) In the event that the Holdings LLCA shall terminate prior to the Maturity Date, references and cross-references in this Agreement to the “Holdings LLCA” and any provisions thereof shall in each case be deemed to refer to versions of the Holdings LLCA that was in full force and effect immediately prior to its termination.
Section 1.04 Accounting Terms. All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any subsidiary at “fair value,” as defined therein and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
Section 1.05 Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made after giving effect to the Transactions unless the context otherwise requires.
Section 1.06 Timing of Payment of Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
Section 1.07 Times of Day. Unless otherwise specified herein, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
Section 1.08 Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Term Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”, “in Cash” or any other similar requirement.
Section 1.09 [Reserved].
Section 1.10 Certain Calculations. The principal amount of any non-interest-bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated as of such date and prepared in accordance with GAAP.
30
Section 1.11 Rates. The Administrative Agent does not warrant or accept responsibility for and shall not have any liability with respect to the continuation of, administration of, submission of, calculation of or any other matter related to the Alternate Base Rate, Term SOFR Reference Rate, Term SOFR Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Alternate Base Rate, Term SOFR Reference Rate, Term SOFR or Term SOFR Rate. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Alternate Base Rate, Term SOFR Reference Rate, Term SOFR or Term SOFR Rate, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Term Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
Article 2
THE CREDITS
Section 2.01 Commitments.
(a) Initial Term Loans. Subject to the terms and conditions set forth herein, each Initial Term Lender severally, and not jointly, agrees to make Initial Term Loans to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment. The funding of the Initial Term Loan on the Closing Date may be effectuated by conversion, exchange, roll-over, or other similar mechanism (as approved by the Administrative Agent in its sole discretion), of loans outstanding under the DIP Facility.
(b) Tranche B Delayed Draw Term Loans. Subject to the terms and conditions set forth herein, each Tranche B Delayed Draw Term Lender severally, and not jointly, agrees to make Tranche B Delayed Draw Term Loans to the Borrower, on any Business Day during the Tranche B Delayed Draw Availability Period (such date on which any Tranche B Delayed Draw Term Loans are made, the “Tranche B Delayed Draw Funding Date”), in Dollars in a principal amount not to exceed its Tranche B Delayed Draw Term Loan Commitment.
(c) Tranche C Delayed Draw Term Loans. Subject to the terms and conditions set forth herein, each Tranche C Delayed Draw Term Lender severally, and not jointly, agrees to make Tranche C Delayed Draw Term Loans to the Borrower, on any Business Day during the Tranche C Delayed Draw Availability Period (such date on which any Tranche C Delayed Draw Term Loans are made, the “Tranche C Delayed Draw Funding Date”) in Dollars in a principal amount not to exceed its Tranche C Delayed Draw Term Loan Commitment. Amounts paid or prepaid in respect of the Tranche C Delayed Draw Term Loans may not be reborrowed.
31
For the avoidance of doubt, any amount paid or prepaid in respect of any Initial Term Loan or Delayed Draw Term Loan may not be reborrowed.
Section 2.02 Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Term Lenders ratably in accordance with their respective Commitments.
(b) [Reserved].
(c) Each Borrowing when made shall comprise an aggregate principal amount that is an integral multiple of $100,000 and not less than $500,000.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not, nor shall they be entitled to, request, or to elect to continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to the relevant Loans.
Section 2.03 Requests for Borrowings.
(a) Each Borrowing and each continuation of Loans shall be made upon irrevocable notice by the Borrower to the Administrative Agent, which may be given by a Borrowing Request or Interest Election Request, as the case may be (provided that notices in respect of Borrowings to be made in connection with any acquisition, investment or irrevocable repayment or redemption of Indebtedness may be conditioned on the closing of such permitted Investment or permitted irrevocable repayment or redemption of Indebtedness). Each Borrowing Request or Interest Election Request shall be appropriately completed and signed by a Responsible Officer of the Borrower and must be received by the Administrative Agent (by hand delivery, fax or other electronic transmission (including “.pdf” or “.tiff”)) not later than 12:00 p.m. three (3) Business Days prior (or such later date as the Administrative Agent may agree in its reasonable discretion (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders)) to the requested date of any Borrowing of, continuation of any Loan.
(b) If no Interest Period is specified with respect to any requested Borrowing, then the Borrower shall be deemed to have selected an Interest Period of three (3) months’ duration. The Administrative Agent shall advise each Lender of the details and amount of any Loan to be made as part of the requested Borrowing no later than one (1) Business Day following receipt of a Borrowing Request in accordance with this Section.
32
Section 2.04 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder not later than 1:00 p.m. on the Business Day specified in the applicable Borrowing Request by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Term Lenders in an amount equal to such Lender’s respective Applicable Percentage for such Class of Loan. The Administrative Agent will make such Loans available to the Borrower by promptly wiring the amounts so received on the same Business Day, in like funds, to the account designated in the relevant Borrowing Request or as otherwise directed in writing by the Borrower; provided that, notwithstanding anything to the contrary contained herein, on the Closing Date, the proceeds of the Loans shall be directed in accordance with a funding authorization between the Borrower and the Administrative Agent on the Administrative Agent’s standard form.
(b) Unless the Administrative Agent has received notice from any Term Lender that such Lender will not make available to the Administrative Agent such Lender’s share of any Borrowing prior to the proposed date of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.04(a) and may, in reliance upon such assumption, make a corresponding amount available to the Borrower (but, for the avoidance of doubt, with no obligation to make such amount available to Borrower in the absence of Administrative Agent’s receipt of such Lender’s share of such Borrowing). In such event, if any Term Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent (without duplication) such corresponding amount with interest thereon forthwith on demand for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders) in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such Borrowing at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing, and the obligation of the Borrower to repay the Administrative Agent the corresponding amount pursuant to this Section 2.04(b) shall cease. If the Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Term Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any other Loan Party may have against any Term Lender as a result of any default by such Lender hereunder. Notwithstanding the foregoing, for the avoidance of doubt, the Administrative Agent solely in its capacity as administrative agent, shall not be considered a Lender and will not fund any amounts due hereunder or in connection herewith in such capacity.
Section 2.05 Interest Elections; Continuation.
(a) Each Borrowing shall have the initial Interest Period specified in such Borrowing Request. Thereafter, the Borrower may elect to continue such Borrowing and may elect Interest Periods therefor, all as provided in this Section. The Initial Term Loans and any Delayed Draw Term Loans (and, if so, agreed pursuant to Section 2.12, any applicable Incremental Loan and Incremental Equivalent Debt) shall have the same terms
33
for all purposes. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Term Lenders based upon their respective Applicable Percentages with respect to such Class of Loans, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section 2.05, the Borrower shall deliver an Interest Election Request in accordance with the terms of Section 2.10(c).
(c) If any such Interest Election Request with respect to any Borrowing does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of three (3) months’ duration.
(d) Promptly following receipt of each Interest Election Request with respect to any Borrowing, the Administrative Agent shall advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to any Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such Interest Period to a Borrowing with an Interest Period of three (3) months.
Section 2.06 Termination and Reduction of Commitments. Unless previously terminated, (a) the Initial Term Loan Commitments shall automatically terminate upon the making of the Initial Term Loans on the Closing Date, (b) the applicable Delayed Draw Term Loan Commitments shall automatically terminate upon the earlier of (i) with respect to the applicable portion of the such Delayed Draw Term Loan Commitments representing the funding of any Delayed Draw Term Loans, the making of the applicable Delayed Draw Term Loans on a related Delayed Draw Funding Date and (ii) the related Delayed Draw Term Loan Termination Date.
Section 2.07 Repayment of Loans; Evidence of Debt; Amortization.
(a) The Borrower hereby unconditionally promises to repay to the Administrative Agent for the account of the Term Lenders holding Term Loans, on the last day of each Fiscal Quarter (commencing with the Fiscal Quarter ending September 30, 2024 with respect to any Term Loan funded on or before such date), an amount equal to 0.25% of the original aggregate principal amount of the applicable Term Loans made on or prior to such date; provided, that the final principal repayment installment of all Term Loans shall be repaid on the Term Loan Maturity Date in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. Any prepayment of a Borrowing of any Class pursuant to Section 2.08 shall be applied to reduce the subsequent scheduled and outstanding repayments of the Borrowings of such Class to be made pursuant to this Section 2.07 as directed by the Borrower (and absent such direction in direct order of maturity); for the avoidance of doubt, with respect to any Delayed Draw Term Loan or any Incremental Loan, the Borrower shall repay such Delayed Draw Term Loans and/or Incremental Loans, in accordance with this Section 2.07(a), commencing on the last day of the Fiscal Quarter in which the applicable Delayed Draw Funding Date occurs or the date on which any Incremental Loan is funded, as applicable);
34
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the accounts of the Term Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to Sections 2.07(b) shall be prima facie evidence of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Term Lender or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that any Loan made by it, including any PIK Interest in respect thereof, be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and deliver to such Lender a Promissory Note that is payable to such Lender and its registered permitted assigns; it being understood and agreed that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Term Lender loses the original copy of its Promissory Note, it shall execute an affidavit of loss containing an indemnification provision that is reasonably satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing an indemnification provision that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section 2.08 Prepayment of Loans.
(a) Optional Prepayments.
(i) Upon prior notice in accordance with Section 2.08(a)(ii), the Borrower shall have the right at any time and from time to time to prepay any Borrowing of Term Loans in whole or in part, subject to Section 2.09(c). Each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages with respect to the Class of Loans being prepaid.
35
(ii) The Borrower shall notify the Administrative Agent in writing of any prepayment under this Section 2.08(a) in the form of a Prepayment Notice not later than 12:00 p.m. three (3) Business days before (or such later date as determined by the Administrative Agent in its reasonable discretion (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders) the day of prepayment. Each such Prepayment Notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the principal amount and Class of each Borrowing or portion thereof to be prepaid; provided that any Prepayment Notice delivered by the Borrower may be conditioned upon the effectiveness of other transactions, in which case such Prepayment Notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following receipt of any such Prepayment Notice relating to any Borrowing, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount at least equal to the amount that would be permitted in the case of a Borrowing as provided in Section 2.02, or such lesser amount that is then outstanding with respect to such Borrowing being repaid (and in increments of $100,000, in excess thereof or such lesser incremental amount that is then outstanding with respect to such Borrowing being repaid).
(b) Mandatory Prepayments.
(i) In the event that the Borrower or any of its Subsidiaries receives (A) Net Proceeds from (1) the issuance or incurrence of Indebtedness by the Borrower, or (2) any insurance policy on account of damage or destruction of any Collateral or Real Estate Assets or a taking or condemnation of any Collateral or Real Estate Assets (other than Dispositions that are permitted under this Agreement), or (B) cash received by or paid to or for the account of the Borrower or any other Loan Parties not in the ordinary course of business, including but not limited to tax refunds, pension plan reversions, indemnity payments and any purchase price adjustments, the Borrower shall, promptly upon the receipt of such Net Proceeds (and in any event not later than two (2) Business Days thereafter) by the relevant Person, apply an amount equal to 100% of such Net Proceeds (or in the case of this clause (B), 100% of such cash) to prepay the outstanding principal amount of the Term Loans in accordance with Section 2.08(b)(iii) below; provided that, in respect of Sections 2.08(b)(i)(A)(2) and 2.08(b)(i)(B), the Borrower may reinvest such Net Proceeds in assets that are used or useful to the business of the Loan Parties to a legally binding contract to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Loan Parties and their Subsidiaries or to make other Investments permitted hereunder (excluding intercompany Investments in its Subsidiaries) by a date no later than 270 days after receipt of such Net Proceeds. In the event the Borrower elects to exercise its reinvestment rights in respect of Sections 2.08(b)(i)(A)(2) and 2.08(b)(i)(B), then promptly following the initial receipt of by any Loan Party or any of their Subsidiaries of Net Proceeds in respect thereof, the Borrower shall deliver a certificate signed by a Responsible Officer of the Borrower to the Administrative Agent verifying such reinvestment rights are being exercised in accordance with the terms and conditions set forth in this Agreement.
36
(ii) In the event that a Change of Control occurs, then the Borrower will, substantially simultaneously with the consummation of the transactions resulting in such Change of Control, prepay all outstanding principal of the Loans, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder. For the avoidance of doubt, all Commitments shall automatically be terminated upon the occurrence of such Change of Control.
(iii) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Loans required to be made by the Borrower pursuant to this Section 2.08(b), to decline all (but not a portion) of its Applicable Percentage with respect to such Class of Loans of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower. If any Term Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage with respect to such Class of Loans of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage with respect to such Class of Loans of the total amount of such mandatory prepayment of Loans.
(iv) All prepayments accepted under this Section 2.08(b) shall be applied against the remaining scheduled installments of principal due in respect of such Term Loans as directed by the Borrower, and each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages with respect to such Class of Loans being repaid.
(v) Prepayments made under this Section 2.08(b) shall be (A) accompanied by accrued interest as required by Section 2.10 and (B) shall be without premium or penalty other than as expressly set forth in this Agreement.
Section 2.09 Fees.
(a) The Borrower agrees to pay to the Administrative Agent, for its own account, the annual administration fee described in the Agent Fee Letter.
(b) All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent, for the benefit of the Administrative Agent and the Term Lenders, as applicable. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Agent Fee Letter. Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment date.
(c) In the event that, in each case whether before or after an Event of Default or acceleration shall have occurred, (i) the Borrower makes an optional prepayment of any Loans pursuant to Section 2.08(a)(i); (ii) the Borrower prepays or refinances any Loans pursuant to Section 2.08(b); (iii) the Loans are accelerated (including any acceleration of the Term Loan Maturity Date) for any reason, including because of an Event of Default,
37
by operation of law or otherwise; or (iv) the Obligations are satisfied (in whole or in part) or released by foreclosure (whether by power of judicial foreclosure or otherwise), deed in lieu of foreclosure or by any other means or the making of a redemption, repayment or distribution of any kind in any insolvency proceeding to the Lender in full or partial satisfaction of the Obligations (any of the foregoing, a “Prepayment Premium Event”), then the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders a premium equal to the Prepayment Premium in respect of such Loans on the date of the Prepayment Premium Event. Each Prepayment Premium shall be fully earned and due and payable on the date of the relevant Prepayment Premium Event, as applicable.
(d) Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the actual days elapsed (including the first day but excluding the last day). The determination by the Administrative Agent of the amount of any fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(e) The Borrower shall pay to Administrative Agent a fee (the “Unused Commitment Fee”) for the account of each Lender in an amount equal to:
(i) the average daily balance of the Commitment of such Lender during the preceding calendar month,
(ii) multiplied by two percent (2.00%) per annum.
The total Unused Commitment Fee paid by the Borrower will be equal to the sum of all of the Unused Commitment Fees due to the Term Lenders, subject to Section 2.15. Such fee shall be payable in cash monthly in arrears on the last Business Day of each calendar month following the Closing Date. The Unused Commitment Fee provided in this Section 2.09(e) shall accrue at all times from and after the execution and delivery of this Agreement through the Latest Maturity Date.
Section 2.10 Interest and Acceptance Fees.
(a) [Reserved].
(b) The Loans shall bear interest at the Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the requirement of Section 2.14(a) that payments by the Borrower hereunder be made in immediately available funds (but subject to Section 2.10(d) and (e)), regularly scheduled payments of interest accrued on Loans may be paid (in whole but not in part) in kind at the rate specified under clause (b) of the definition of “Applicable Rate” (at the election of the Borrower, notified in writing to the Term Lenders and the Administrative Agent no later than fifteen (15) Business Days prior to the applicable Interest Payment Date, and specifying the amount so elected to be paid in kind; provided, that failure to provide such notice by the date fifteen (15) Business Days prior to the applicable Interest Payment Date shall be deemed to be an election to pay in kind the
38
maximum amount permitted hereunder) by addition of such amount, on the applicable date of payment, to the outstanding principal amount of applicable Loans (allocable among the Term Lenders according to their ratable shares of the applicable Loans), and such capitalized interest (the “PIK Interest”) shall thenceforth be considered an amount of outstanding principal of the Loans, made by the Term Lenders, for all purposes hereof (and shall bear interest in accordance with this Section 2.10). The obligation of the Borrower to pay such PIK Interest so added shall be automatically evidenced by the Promissory Notes. For the avoidance of doubt, with respect to any period for which interest is paid as PIK Interest (including as a result of the Borrower’s failure to provide a notice of election as specified above), the Applicable Rate shall accrue as set forth in clause (b) thereof.
(d) Notwithstanding the foregoing, at any time when an Event of Default occurs and is continuing, all Initial Term Loans, Delayed Draw Term Loans and any other outstanding Obligations shall bear interest, to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum equal to (i) in the case of principal or interest of any such Initial Term Loans or Delayed Draw Term Loans, 2.00% plus the rate otherwise applicable to the Term Loan as provided in this Section 2.10 or (ii) in the case of any other duly owed past due Obligation, 2.00% plus the rate applicable to the Term Loans as provided in Section 2.10(b).
(e) Accrued interest on the Initial Term Loans and any Delayed Draw Term Loan shall be payable in arrears on each Interest Payment Date for such Term Loan and on the Maturity Date applicable to such Loan; provided that (i) interest accrued pursuant to Section 2.10(d) shall be payable in cash on demand and (ii) in the event of any repayment or prepayment of any Term Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.
(f) All interest hereunder shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate and Term SOFR Rate shall be determined by the Administrative Agent (in consultation with the Required Lenders), and such determination shall be conclusive absent manifest error. Interest shall accrue on each Loan for the day on which the Loan is made and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement, and the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields.
Section 2.11 Alternate Rate of Interest.
If at least two (2) Business Days prior to the commencement of any Interest Period the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Term SOFR Rate for such Interest Period, then the Administrative Agent shall promptly give written notice thereof to the Borrower and the Term Lenders as promptly as practicable thereafter. Upon such notice by the Administrative Agent to the Borrower and the Term Lenders, any outstanding Borrowing shall be converted to accrue interest at the Alternate Base Rate at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted.
39
Notwithstanding the foregoing, if the Administrative Agent has made the determination described in the above paragraph, the Administrative Agent, the Required Lenders and the Borrower shall negotiate in good faith to amend the definition of “Term SOFR Reference Rate”, and other applicable provisions to preserve the original intent thereof in light of such change, to agree on an Alternate Base Rate.
Section 2.12 Incremental Credit Extensions.
(a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall as promptly as practicable deliver a copy to each of the Term Lenders) and in accordance with the provisions of this Section 2.12, request (i) one or more additional tranches of term loans (the “Incremental Term Loans”), which may be deemed to be Initial Term Loans, Tranche B Delayed Draw Term Loans, Tranche C Delayed Draw Term Loans (each a “Term Loan Increase”) or a separate Class of Term Loans (the commitments in respect of such Incremental Term Loans, whether or not constituting a Term Loan Increase, the “Incremental Term Loan Commitments”), (ii) (A) the establishment of one or more new revolving credit commitments (an “Incremental Revolving Commitment Tranche”), and/or (B) one or more increases in the amount of any previously established Class of Incremental Revolving Commitment (a “Revolving Commitment Increase”, together with any Incremental Revolving Commitment Tranche, the “Incremental Revolving Credit Commitments”) or (iii) Incremental Equivalent Debt. Such notice shall set forth (1) the amount of the Incremental Term Loan Commitments, the Incremental Revolving Credit Commitments or Incremental Equivalent Debt being requested and (2) the date on which such Incremental Term Loan Commitments, the Incremental Revolving Credit Commitments or Incremental Equivalent Debt are requested to become effective. For the avoidance of doubt, no Lender will be required to provide an Incremental Term Loan Commitment, Incremental Revolving Credit Commitment or Incremental Equivalent Debt. Following the effectiveness of any Incremental Loan, each request for a Borrowing of an Incremental Loan shall be in accordance with the terms of Section 2.03.
(b) The aggregate principal amount of the Incremental Term Loans (or, if applicable, Incremental Term Loan Commitments), when added to the aggregate principal amount of the Incremental Revolving Credit Commitments and any Incremental Equivalent Debt but excluding any PIK Interest on Incremental Loans or Incremental Equivalent Debt, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(c) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation (including amendments to this Agreement) as the Administrative Agent shall reasonably request to evidence the Incremental Term Loan Commitment and/or the Incremental Revolving Credit Commitment of such Incremental Lender. Any Incremental Loan or
40
Incremental Equivalent Debt (i) may be unsecured or secured by the same Collateral securing Obligations, (ii) may be secured on a senior, pari passu or junior basis in right of payment to the Liens securing the Obligations and (iii) the other terms and conditions of such Incremental Loan or Incremental Equivalent Debt shall be reasonable; provided, that:
(i) the proposed terms of each such Incremental Loan or Incremental Equivalent Debt are offered in writing to each then-existing Lender on a pro rata basis based on such Lender’s Applicable Percentage of the Loans;
(ii) to the extent any then-existing Lender declines to provide such Incremental Loan or Incremental Equivalent Debt, or fails to fund or execute a commitment to provide such Incremental Loan or Incremental Equivalent Debt within sixty (60) days following receipt of a written offer in accordance with Section 2.12(a), the other Lenders may provide or commit to providing such Incremental Loan or Incremental Equivalent Debt on a non-pro rata basis; and
(iii) any Eligible Assignee that is not a then-existing Lender may provide or commit to providing such Incremental Loan or Incremental Equivalent Debt with the prior written consent of the Required Lenders.
(d) Any Incremental Term Loans not constituting a Term Loan Increase and any Incremental Revolving Credit Commitments not constituting a Revolving Commitment Increase shall be designated as a separate Class of Term Loans or Incremental Revolving Credit Commitments, as applicable, for all purposes of this Agreement. This Section 2.12 shall supersede any provisions in Section 2.08, Section 2.10, Section 2.14 or Section 9.02 to the contrary.
Section 2.13 Taxes.
(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires the deduction or withholding of any Tax from any such payment (as determined in the good faith discretion of the applicable withholding agent), then (i) if such Tax is an Indemnified Tax, the amount payable by the applicable Loan Party shall be increased as necessary so that after all required deductions or withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 2.13), each Recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deductions and (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Requirements of Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
41
(c) Without duplication of its obligations pursuant to Section 2.13(a), the Borrower shall indemnify the Administrative Agent and each Lender within ten (10) days after receipt of demand therefor, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent or such Lender or withheld or deducted (or required to be withheld or deducted) from a payment to such Lender or Administrative Agent, as applicable (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.13), and, in each case, any reasonable expenses arising therefrom or with respect thereto, whether or not correctly or legally imposed or asserted; provided that, if the Borrower reasonably believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender, as applicable, will use reasonable commercially efforts to cooperate with the Borrower to obtain a refund of such Taxes (which refund, when received, shall be repaid to the Borrower in accordance with Section 2.13(g)) so long as such efforts would not, in the sole determination of the Administrative Agent or such Lender, result in any additional out-of-pocket costs or expenses not reimbursed by the Borrower or be otherwise materially disadvantageous to the Administrative Agent or such Lender, as applicable. A certificate as to the amount of such payment or liability delivered to the Borrower by a Term Lender (with a copy to the Administrative Agent) or the Administrative Agent (on its own behalf or on behalf of a Term Lender) shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes imposed on or with respect to any payment under any Loan Document that is attributable to such Lender (but only to the extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) and (ii) any Excluded Taxes not described in clauses (i) or (ii) that are attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted. A certificate as to the amount of such payment or liability delivered to any Term Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to such Lender under any Loan Document or otherwise payable by the Administrative Agent to any Term Lender from any other source against any amount due to the Administrative Agent under this clause (d).
(e) As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.13, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
42
(f) Status of Lenders.
(i) Any Lender (which shall include the Administrative Agent for purposes of this Section 2.13(f)) that is entitled to an exemption from or reduction of any withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Term Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.13(f)(ii)(A), (B) and (D)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender hereby authorizes the Administrative Agent to deliver to the Borrower and to any Successor Administrative Agent any documentation provided to the Administrative Agent pursuant to this Section 2.13(f).
(ii) Without limiting the generality of the foregoing:
(A) each Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Term Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) each Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Term Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party, (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
43
(2) two (2) executed copies of IRS Form W-8ECI;
(3) in the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (x) two executed copies of a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower described in Section 881(c)(3)(C) of the Code, and that no payments hereunder to such Lender are effectively connected with the conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) two executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
(4) to the extent any Foreign Lender is not the beneficial owner (e.g., where the Foreign Lender is a partnership or participating Lender), two executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2, Exhibit E-3 or Exhibit E-4, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-3 on behalf of each such direct or indirect partner;
(C) each Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Term Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
44
(D) if a payment made to any Term Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by applicable Requirements of Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment; provided that solely for the purposes of this paragraph, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) The Administrative Agent shall, and any successor to the Administrative Agent (a “Successor Administrative Agent”) that is not an “exempt recipient” (within the meaning of Treas. Reg. 1.6049-4(c)(1)(ii)) on or before the date such Successor Administrative Agent becomes a party to this Agreement shall, deliver to Borrower whichever of the following is applicable: (i) if such agent is a “United States person” within the meaning of Section 7701(a)(30) of the Code, two executed copies of IRS Form W-9 certifying that such agent is exempt from U.S. federal backup withholding or (ii) if such agent is not a “United States person” within the meaning of Section 7701(a)(30) of the Code, (A) with respect to payments received for its own account, two executed copies of IRS Form W-8ECI and (B) with respect to payments received on account of any Term Lender, two (2) executed copies of IRS Form W-8IMY (together with all required accompanying documentation) certifying that such agent is a U.S. branch and may be treated as a United States person for purposes of applicable U.S. federal withholding Tax. At any time thereafter, such agent shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the reasonable request of the Borrower.
Each Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.
For the avoidance of doubt, if a Term Lender is an entity disregarded from its owner for U.S. federal income tax purposes, references to the foregoing documentation are intended to refer to documentation with respect to such Lender’s regarded owner and, as applicable, such Lender.
Notwithstanding anything to the contrary in this Section 2.13(f), no Recipient shall be required to provide any documentation that such Recipient is not legally eligible to deliver.
45
(g) If any party determines, in its sole discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified pursuant to this Section 2.13, it shall pay over such refund to the relevant indemnifying party (but only to the extent of indemnity payments made, or additional amounts paid, under this Section 2.13 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of such indemnified party (including any Taxes imposed with respect to such refund), and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that, upon the request of such indemnified party, such indemnifying party agrees to repay the amount paid over to such indemnifying party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such indemnified party in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.13(g), in no event will an indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) to the extent that the payment thereof would place such indemnified party in a less favorable net after-Tax position than the position that such indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 2.13 shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the relevant indemnifying party or any other Person.
(h) Each party’s obligations under this Section 2.13 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, any Term Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.14 Payments Generally; Allocation of Proceeds; Sharing of Payments.
(a) Unless otherwise specified, the Borrower shall make each payment required to be made by them hereunder (whether of principal, interest or fees, or of amounts payable under Section 2.13 or otherwise) prior to 1:00 p.m. on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated by the Administrative Agent to the Borrower, except that payments pursuant to Section 2.13 shall be made directly to the Person or Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and each continuation of any Borrowing shall be allocated pro rata among the Term Lenders in accordance with their respective Applicable Percentages with respect to such Class of Loans. All payments (including any principal, accrued interest, fees or other obligations otherwise accruing or becoming due) hereunder shall be made in Dollars. Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole Dollar amount. Any payment required to be made by the Administrative Agent hereunder, upon the receipt of
46
all required funds by the participating Lenders, shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) All proceeds of Collateral received by the Administrative Agent while an Event of Default exists and all or any portion of the Loans have been accelerated hereunder pursuant to Section 7.01, shall be applied, first, to the payment of all costs and expenses then due that have been incurred by any Agent in connection with any collection, sale or realization on Collateral or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations, including all court costs and the fees and expenses of agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document, in each case to the extent payable or reimbursable by the Loan Parties under the Loan Documents, second, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to any Agent (other than those covered in clause first above) from the Borrower constituting Obligations, third, on a pro rata basis in accordance with the amounts of the Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed to the Secured Parties on the date of any such distribution, to the payment in full of the Obligations, and fourth, any remainder shall be for the account of the Borrower.
(c) If any Term Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect of any principal of or interest on any of its Loans held by it resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender with Loans, then the Lender receiving such greater proportion shall purchase (for Cash at face value) participations in the Loans of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Term Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by any Term Lender as consideration for the assignment of or sale of a participation in any of its Loans to any permitted assignee or participant. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Term Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.14(c) and will, in each case, notify the Term Lenders following any such purchases or repayments.
47
(d) Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of any Term Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may (although the Administrative Agent is not obligated to do so and for the avoidance of doubt, the Administrative Agent is not a Term Lender and will not fund any amounts due hereunder or in connection herewith), in reliance upon such assumption, distribute to the applicable Lender the amount due. In such event, if the Borrower has not in fact made such payment, then each Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Term Lender fails to make any payment required to be made by it pursuant to Section 2.04(a) or Section 2.14(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
(f) The provisions of this Section 2.14 shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement as in effect from time to time (including the application of funds arising from the existence of a Defaulting Lender, or non-pro rata prepayments in accordance with Section 2.15.
Section 2.15 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Term Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender.
(b) The Loans and the Commitments of such Defaulting Lender shall not be included in determining whether all Lenders, each affected Lender, the Required Lenders, the Required Tranche B Delayed Draw Term Lenders, the Required Tranche C Delayed Draw Term Lenders, the Required Incremental Lenders or such other number of Lenders as may be required hereby or under any other Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
48
(c) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.08, Section 2.12, Section 2.13, Section 2.14 or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender), shall be applied at such time or times as may be determined by the Administrative Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, so long as no Default or Event of Default exists, as the Borrower may request, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; third, as the Administrative Agent or the Borrower may elect, to be held in a deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the non-Defaulting Lenders as a result of any judgment of a court of competent jurisdiction obtained by any non-Defaulting Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loan in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loan was made or created, as applicable, at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.15(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Article 3
REPRESENTATIONS AND WARRANTIES
To the extent required pursuant to Section 4.01 or Section 4.02, as applicable, each of the Loan Parties hereby represents and warrants to the Term Lenders, on the Closing Date, and on each Delayed Draw Funding Date and on each Incremental Loan Closing Date, that:
Section 3.01 Organization; Powers. Each of the Loan Parties and each of their Subsidiaries (a) is (i) duly organized or incorporated, as applicable, and validly existing and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the Requirements of Law of its jurisdiction of organization, (b) has all requisite organizational power and authority to own its assets and to carry on its business as now conducted and (c) is qualified to do business and is in good standing (to the extent such concept exists in the relevant jurisdiction) in every jurisdiction where the ownership, lease or operation of its properties or conduct of its business requires such qualification, except, in each case referred to in this Section 3.01(c), where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
49
Section 3.02 Authorization; Enforceability. Subject to the Perfection Requirements, the execution, delivery and performance by each Loan Party of each Loan Document to which such Loan Party is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized by all necessary corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws.
Section 3.03 Governmental Approvals; No Conflicts. The execution and delivery of each Loan Document by each Loan Party thereto and the performance by such Loan Party thereof (a) do not require any consent or approval of, registration or filing with or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection Requirements and (iii) such consents, approvals, registrations, filings or other actions the failure to obtain or make which could not be reasonably expected to have a Material Adverse Effect; and (b) will not violate any (i) of such Loan Party’s Organizational Documents or (ii) Requirement of Law applicable to such Loan Party which violation, in the case of this Section 3.03(b)(ii), could reasonably be expected to have a Material Adverse Effect.
Section 3.04 Financial Condition; No Material Adverse Effect.
(a) After the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present fairly, in all material respects, the consolidated financial condition and results of operations and cash flows of the Borrower and its Subsidiaries as of such dates and for such periods, (x) except as otherwise expressly noted therein and (y) subject, in the case of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end adjustments.
(b) Since April 2, 2024, excluding the Chapter 11 Cases, there have been no events, developments or circumstances that have had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.05 Properties.
(a) As of the Closing Date, no Loan Party owns any fee-owned Material Real Estate Asset.
(b) Each Loan Party and each of its Subsidiaries have good title to their Material Real Estate Assets and personal property and assets, in each case, except (i) for where failure to have such title could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (ii) Permitted Liens.
(c) Each Loan Party and each of its Subsidiaries own or otherwise have a license or right to use all IP Rights reasonably necessary for use in the conduct of their respective businesses as presently conducted without, to the knowledge of the Borrower, any infringement, misappropriation or other violation of the IP Rights of third parties, except to the extent any such failure to own or license or have rights to use such IP Rights would not, or where such infringement, misappropriation or other violation would not,
50
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and to the knowledge of the Borrower, the Borrower and its Subsidiaries have not infringed, misappropriated or otherwise violated, and, to the knowledge of the Borrower, do not infringe, misappropriate or otherwise violate, any IP Rights of any third party, except to the extent such infringement, misappropriation or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; provided, however, that notwithstanding the foregoing, nothing related to the Sage IP Rights shall constitute a Material Adverse Effect.
Section 3.06 Compliance with Laws. Each Loan Party and each of its Subsidiaries is in compliance with all Requirements of Law applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.07 Investment Company Status. No Loan Party is an “investment company” as defined in, or is required to be registered under, the Investment Company Act of 1940.
Section 3.08 Taxes. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Loan Party and each of its Subsidiaries has timely filed or caused to be filed all U.S. federal, state and local income and other material Tax returns and reports required to have been filed and has paid or caused to be paid all U.S. federal, state and local income and other material Taxes required to have been paid by it that are due and payable (including in its capacity as a withholding agent), except Taxes (or any requirement to file Tax returns with respect thereto) that are being contested in good faith by appropriate proceedings and for which such Loan Party or such Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP (to the extent so required under GAAP).
Section 3.09 Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Perfection Requirements, and the provisions, limitations and/or exceptions set forth in this Agreement and the other relevant Loan Documents, the Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens constitute perfected Liens (with the priority that such Liens are expressed to have under the relevant Collateral Documents, unless otherwise permitted hereunder or under any Collateral Document) on the Collateral (to the extent such Liens are required to be perfected under the terms of the Loan Documents) securing the Obligations, in each case as and to the extent set forth therein.
51
Section 3.10 Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and the incurrence of Indebtedness and obligations on the Closing Date, in connection with this Agreement and the Transactions, (a) the sum of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets (on a going concern basis) of Holdings and its Subsidiaries, taken as a whole; (b) the present fair saleable value of the assets (on a going concern basis) of Holdings and its Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured in the ordinary course of business; (c) the capital of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries, taken as a whole; and (d) Holdings and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Section 3.11 OFAC; USA PATRIOT Act and FCPA.
(a) (i) None of the Loan Parties or any of its Subsidiaries or any director, officer or, to the knowledge of Holdings or the Borrower, employee of any of the foregoing is, or is 50 percent or greater owned or controlled by any individual or entity that is, the target of any U.S. asset-blocking sanctions administered by the United States government, including the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) (collectively, “Sanctions”); and (ii) the Borrower will not directly or, to its knowledge, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Person for the purpose of financing the activities of any Person that is the target of any Sanctions, or in any country or territory that is the target of any comprehensive Sanctions, except to the extent licensed or otherwise authorized or exempted under U.S. law.
(b) To the extent applicable, each Loan Party is in compliance, in all material respects, with the USA PATRIOT Act.
(c) None of the Loan Parties or any of its Subsidiaries or, to the knowledge of the Borrower, any director, officer, agent or employee of any of the Loan Parties or any Subsidiary, is in material violation of any applicable laws, rules or regulations of any jurisdiction relating to corruption or bribery applicable to such Loan Party or any Subsidiary including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”) (collectively, the “Anti-Corruption Laws”), which the Loan Parties acknowledge prohibit, without limitation, making any offer, payment, promise to pay or authorization or approval of the payment of any money, or other property, gift, promise to give or authorization of the giving of anything of value, directly or knowingly indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in each case in contravention of the FCPA, or any applicable anti-corruption Requirement of Law of any Governmental Authority. The Borrower will not directly or, to its knowledge, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any governmental official or employee, political party, official of a political party, candidate for public office or anyone else acting in an official capacity, in each case, in order to obtain, retain or direct business or obtain any improper advantage in violation of the FCPA or any other applicable anti-corruption Requirement of Law of any Governmental Authority.
52
Article 4
CONDITIONS
Section 4.01 Closing Date. The obligations of each Term Lender to provide Initial Term Loans shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Credit Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received (i) fully executed versions of (A) this Agreement, (B) the Security Agreement, (C) the Loan Guarantee, (D) any Intellectual Property Security Agreements and (E) any Promissory Note requested by a Term Lender at least three (3) Business Days prior to the Closing Date which shall in each case be in form and substance satisfactory to the Required Lenders and (ii) at least one (1) Business Day prior to the Closing Date (or such later date as the Administrative Agent may agree in its reasonable discretion (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders), a Borrowing Request executed by the Borrower.
(b) Legal Opinions. The Agents (or their counsel) shall have received, on behalf of itself and the Term Lenders on the Closing Date, a customary written opinion of Sidley Austin LLP, in its capacity as special counsel to the Loan Parties, dated as of the Closing Date and addressed to the Agents and the Term Lenders on the Closing Date.
(c) Secretary’s Certificate and Good Standing Certificates. The Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated as of the Closing Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify that attached thereto are (x) a true and complete copy of the certificate or articles of incorporation, formation or organization of such Loan Party certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization have not been amended (except as attached thereto) since the date reflected thereon; (y) a true and correct copy of the by-laws or operating, management, partnership, shareholders’ or similar agreement of such Loan Party, to the extent applicable, together with all amendments thereto as of the Closing Date, which by-laws or operating, management, partnership, shareholders’ or similar agreement are in full force and effect; and (z) a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) identify by name and title and bear the signatures of the Responsible Officers of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Closing Date and (ii) a good standing (or equivalent) certificate for such Loan Party from the relevant authority of its jurisdiction of organization, dated as of a recent date.
(d) Representations and Warranties. The representations and warranties set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of the Closing Date; provided that (A) in the case of any representation and warranty which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be and (B) if any representation and warranty is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, such representation and warranty shall be true and correct in all respects.
53
(e) Fees. Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall have received (i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Agent Fee Letter, (ii) each Lender shall have received its Applicable Percentage of the Upfront Fee and (iii) all other reasonable and documented out-of-pocket expenses required to be paid by the Loan Parties (including, without limitation, fees and expenses required to be paid under Section 9.03) for which invoices have been presented and agreed at least one (1) Business Days prior to the Closing Date or such later date to which the Borrower may agree have been paid.
(f) Prepackaged Plan; Take-Private Transaction; New Common Interests. The Administrative Agent shall have received evidence satisfactory to the Administrative Agent and each Required Lender that (i) the Prepackaged Plan has been confirmed by the Bankruptcy Court, become a final order and become effective, (ii) the Take-Private Transaction has been consummated and (iii) the New Common Interests shall have been issued, in each case in accordance with the Restructuring Support Agreement.
(g) No Default. (i) No Default or Event of Default shall have occurred and be continuing or would immediately result from the making of the proposed Initial Term Loans or from the application of the proceeds thereof and (ii) no Default or Event of Default (each as defied under the DIP Facility) shall have occurred and be continuing under the DIP Facility.
(h) Closing Date Refinancing. The Closing Date Refinancing shall have been, or substantially concurrently with the funding of the Initial Term Loans shall be, consummated.
(i) Private Placement for Tranche C Commitment Equity. The Tranche C Delayed Draw Term Lenders shall have received their allocated shares of the Tranche C Commitment Equity substantially simultaneously with such issuance of the Tranche C Commitment Equity in accordance with the terms and conditions of the Prepackaged Plan.
(j) [Reserved].
(k) Pledged Stock and Pledged Notes. Subject to the last paragraph of this Section 4.01, the Collateral Agent (or its counsel) shall have received (i) the certificates representing any Capital Stock required to be pledged pursuant to the Security Agreement, together with an undated stock power or similar instrument of transfer for each such certificate endorsed in blank by a duly authorized officer of the pledgor thereof, and (ii) any Material Debt Instrument required to be pledged pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an transfer form endorsed in blank) by the pledgor thereof.
54
(l) Filings Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC financing statement or a filing in the U.S. Copyright Office or the U.S. Patent and Trademark Office) required by any Collateral Document or under any applicable Requirement of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
(m) Officer’s Certificate. The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower in form and substance satisfactory to the Required Lenders.
For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans hereunder, the Administrative Agent and each Lender shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Required Lenders.
Section 4.02 Delayed Draw Funding Dates. The obligations of each Delayed Draw Term Lender to fund Delayed Draw Term Loans on any Delayed Draw Funding Date shall be subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(a) Borrowing Request. The Administrative Agent shall have received, at least three (3) Business Days prior to such Delayed Draw Funding Date (or such later date as the Administrative Agent may agree in its reasonable discretion (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders)), a Borrowing Request executed by the Borrower, specifying the amount of the Delayed Draw Term Loans requested and such Delayed Draw Funding Date shall be on or prior to the applicable Delayed Draw Term Loan Termination Date.
(b) Representations and Warranties. The representations and warranties set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of such Delayed Draw Funding Date; provided that (A) in the case of any representation and warranty which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be and (B) if any representation and warranty is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, such representation and warranty shall be true and correct in all respects.
(c) No Default. No Default or Event of Default shall have occurred and be continuing or would immediately result from the making of the proposed Delayed Draw Term Loans or from the application of the proceeds thereof.
(d) Termination of Certain Commitments. (i) With respect to any request for a Tranche B Delayed Draw Term Loan, the Initial Term Loan Commitments shall have been fully drawn as of the proposed Tranche B Delayed Draw Funding Date, (ii) with respect to any request for Tranche C Delayed Draw Term Loans, the Tranche B Delayed Draw Term Loan Commitments shall have been fully drawn as of the proposed Tranche C Delayed Draw Funding Date, and (iii) with respect to any request for Incremental Loans, the Tranche C Delayed Draw Term Loan Commitments shall have been fully drawn as of the proposed Incremental Loan Closing Date.
55
(e) Fees. Prior to or substantially concurrently with the funding of any Delayed Draw Term Loans on any Delayed Draw Funding Date hereunder, all reasonable and documented out-of-pocket expenses required to be paid by the Loan Parties (including fee and expenses set forth in Section 9.03) for which invoices have been presented and agreed at least one (1) Business Days prior to such Delayed Draw Funding Date or such later date to which the Borrower may agree have been paid.
Article 5
AFFIRMATIVE COVENANTS
From the Closing Date until the date on which all Commitments have expired or terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document (other than contingent indemnification obligations for which no claim or demand has been made) have been paid in full in cash (such date, the “Termination Date”), each of the Loan Parties hereby covenants and agrees with the Term Lenders that:
Section 5.01 Financial Statements and Other Reports1. Holdings and/or the Borrower will deliver to the Administrative Agent for delivery to each Lender:
(a) as soon as reasonably practicable, but in any event not later than one hundred and twenty (120) days after the end of each fiscal year of Holdings, a copy of the unaudited consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year and the related statements of operations and cash flows; and
(b) as soon as reasonably practicable, but in any event not later than sixty (60) days after the end of each fiscal quarter of Holdings, the unaudited consolidated balance sheet of Holdings and its Subsidiaries, and the related statements of operations and cash flows for such quarter.
Section 5.02 Existence. Except as otherwise permitted under Section 6.03, the Loan Parties will, and will cause each of their Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses and permits material to its business except, other than with respect to the preservation of the existence of each Loan Party, to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided that neither the Loan Parties nor any of their Subsidiaries shall be required to preserve any such existence (other than with respect to the preservation of existence of Holdings and the Borrower), right, franchise, license or permit if a Responsible Officer of such Person or such Person’s board of directors (or similar governing body) determines that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to the Lenders (taken as a whole).
| 1 | Subject to changes to the Holdings LLCA. |
56
Section 5.03 Maintenance of Properties. The Loan Parties will, and will cause each of their Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all property reasonably necessary to the normal conduct of business of the Loan Parties and their Subsidiaries and from time to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted by this Agreement or where the failure to maintain such properties or make such repairs, renewals or replacements could not reasonably be expected to have a Material Adverse Effect.
Section 5.04 Insurance. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Loan Parties will maintain or cause to be maintained, with insurers reasonably believed by the Loan Parties to be financially sound and reputable at the time such insurance was purchased, such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the Loan Parties and their Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Each such policy of insurance shall (i) name the Collateral Agent on behalf of the Secured Parties as a lender loss payee or an additional insured, as applicable, thereunder as its interests may appear and (ii) to the extent available from the relevant insurance carrier and shall, in the case of each casualty insurance policy (excluding any business interruption insurance policy), contain a lender loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as the lender loss payee or additional insured thereunder and, to the extent available from the relevant insurance carrier after submission of a request by the applicable Loan Party to obtain the same, provide for at least 30 days’ prior written notice to the Collateral Agent of any modification or cancellation of such policy (or ten (10) days’ prior written notice in the case of the failure to pay any premiums thereunder).
Section 5.05 Maintenance of Book and Records. Holdings and the other Loan Parties shall, and shall cause their Subsidiaries to, maintain their books and records in accordance with Section 8.1(a) of the Holdings LLCA.
Section 5.06 Use of Proceeds. The Borrower shall use the proceeds of the Initial Term Loans (a) to consummate the Transactions, (b) to pay the Transaction Costs and (c) for general corporate and working capital purposes of the Loan Parties not inconsistent with the terms of this Agreement.
Section 5.07 Covenant to Guarantee Obligations and Provide Security.
(a) Upon the formation or acquisition after the Closing Date of any Subsidiary (other than any Excluded Subsidiary) or upon any Excluded Subsidiary ceasing to be an Excluded Subsidiary, within 60 days after the date of such formation, acquisition or cessation, the Borrower shall cause such Subsidiary to comply with the Collateral and Guarantee Requirements.
57
(b) Within sixty (60) days after the acquisition or leasing by any Loan Party that is a U.S. Subsidiary of any Material Real Estate Asset (other than any Excluded Asset) (or such longer period as the Administrative Agent may reasonably agree (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders)), the Borrower shall notify the Administrative Agent, and the Borrower will cause such Loan Party to take such actions as are required by the Real Estate Collateral Requirements, all at the expense of the Borrower; it being understood and agreed that with respect to any Material Real Estate Asset owned, leased or occupied by any Subsidiary at the time such Subsidiary is required to become a Loan Party under Section 5.07(a), such Material Real Estate Asset shall be deemed to have been acquired or leased by such Subsidiary on the first (1st) day of the time period within which such Subsidiary is required to become a Loan Party under Section 5.08(a).
(c) Within sixty (60) days following the closing date, the Borrower shall deliver to the Administrative Agent, on behalf of itself and the Term Lenders, a duly executed waiver related to the MDA Collateral.
(d) (i) as soon as practicable, and in any event within thirty (30) calendar days (or as otherwise extended by the Administrative Agent (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders)), following the Closing Date, the Borrower shall comply with the requirements of clause (h) of the Collateral and Guarantee Requirements with respect to each Deposit Account located in the United States set forth in Schedule 5.07(c); provided that, to the extent the Borrower or any other Loan Party forms or otherwise acquires a Deposit Account, then Borrower or such other Loan Party shall promptly, and in any event within ten (10) Business Days of such formation or acquisition provide to the Administrative Agent an updated Schedule 5.07(c) together with Control Agreements over such additional Deposit Accounts, in each case in form and substance reasonably acceptable to the Collateral Agent.
Section 5.08 Further Assurances. Promptly upon request of the Administrative Agent and subject to the limitations described in Section 5.07 or any Loan Document and the Perfection Requirements (if applicable):
(a) the Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements, instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements, fixture filings, Mortgages and/or amendments thereto and other documents), which the Administrative Agent or the Collateral Agent may reasonably request (at the direction of the Cantor Representative, or, if the Cantor Representative is no longer a Lender, the Required Lenders) and to ensure the creation, perfection and priority of the Liens created or intended to be created under the Collateral Documents, all at the expense of the relevant Loan Parties (including but not limited to, compliance with the terms of the Real Estate Collateral Requirements).
58
(b) the Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to ensure the creation, perfection and priority of the Liens created or intended to be created under the Collateral Documents.
(c) The Administrative Agent (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders) may grant extensions of time (including after the expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particularly assets or the provision of any Loan Guarantee by any Subsidiary (in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time.
Section 5.09 Anti-Corruption Laws; Sanctions. Each Loan Party shall not, directly or, to the knowledge of such Loan Party, indirectly, (a) use any part of the proceeds of the Loans in violation of any applicable Anti-Corruption Law and Anti-Money Laundering Laws; (b) use any part of the proceeds of the Loans, or lend or contribute or otherwise make available such proceeds to any Person, to fund or finance any business or activities of, with or involving any Person that is the target of any Sanctions or in any country or territory, that is the target of any comprehensive Sanctions, except to the extent licensed or otherwise authorized or exempted under applicable law; (c) use any part of the proceeds of the Loans in any other manner that would constitute or cause a violation of Sanctions by any party hereto, including any Term Lender; or (d) repay any debt or obligation owed under this Agreement, in whole or in part, using any funds or moneys derived from transactions with any Person subject to Sanctions or in any country or territory that is the target of any comprehensive Sanctions.
Section 5.10 Compliance with the Holdings LLCA. Holdings will comply with Section 5.10(a) of the Holdings LLCA.
Article 6
NEGATIVE COVENANTS
Section 6.01 Indebtedness and Liens. After the Closing Date, the Loan Parties shall not, nor shall they permit any of their Subsidiaries to, incur Indebtedness, other than (i) Indebtedness and/or Liens of the Loan Parties and their Subsidiaries in existence as of the Closing Date (and any Permitted Refinancing in respect thereof), (ii) Indebtedness of the Loan Parties and their Subsidiaries under any Incremental Loans and any Incremental Equivalent Debt (provided that any Incremental Loans and any Incremental Equivalent Debt that are secured on a senior, pari passu, junior lien basis to the Obligations shall be subject to a customary intercreditor agreement reasonably acceptable to the Agents (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders)), (iii) ordinary course liabilities to the
59
extent not constituting Indebtedness for borrowed money, (iv) intercompany Indebtedness between or among any Loan Parties and any of their Subsidiaries, (v) Indebtedness in respect of capitalized lease obligations, purchase money obligations and similar liabilities, in each case of any Loan Party and any of their Subsidiaries, (vi) Indebtedness arising out of any sale-leaseback transactions, (vii) seller notes and other deferred purchase price obligations, (viii) lines of credit and other Indebtedness incurred by any non-U.S. Subsidiaries in the ordinary course of business, (ix) unsecured Indebtedness and subordinated Indebtedness of the Loan Parties and their Subsidiaries; provided that any such Indebtedness incurred under this clause (ix) in principal amount in excess of $5,000,000 will not mature or have any amortization prior to the Latest Maturity Date without the consent of the Required Lenders (such consent not to be unreasonably withheld or delayed), and (x) any guarantees of, or attributable indebtedness in respect of, any of the foregoing clauses (i) through (ix).
Section 6.02 Restricted Payments. If an Event of Default has occurred and is continuing, the Loan Parties shall not, nor shall they permit any of their Subsidiaries to, pay or make, directly or indirectly, any non-pro-rata Restricted Payments to any Persons other than the Loan Parties, except that:
(a) each Loan Party and each Subsidiary may make any tax distributions required pursuant to Section 2.13 of the Holdings LLCA or such Loan Party’s or such Subsidiary’s limited liability company agreement, operating agreement, partnership agreement or bylaws, as applicable;
(b) each Loan Party and each Subsidiary may make any indemnification payments or reimbursements required pursuant to Section 5.3 or Section 7.2 of the Holdings LLCA or such Loan Party’s or such Subsidiary’s limited liability company agreement, operating agreement, partnership agreement or bylaws, as applicable; and
(c) each Loan Party and each Subsidiary may make any distributions to its members or shareholders required under the terms of the Holdings LLCA, any Joint Venture to which any Loan Party or any Subsidiary is a party, or such Loan Party’s or such Subsidiary’s limited liability company agreement, operating agreement, partnership agreement or bylaws, as applicable.
For the avoidance of doubt, at all times when an Event of Default has not occurred and is not continuing, the Loan Parties and their Subsidiaries shall be permitted to make any Restricted Payment and/or other distribution of cash or other assets at any time.
Section 6.03 Fundamental Changes. The Loan Parties shall not, nor shall they permit any of their Subsidiaries (other than any Excluded Subsidiary) to, merge, consolidate or amalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), except that any such Subsidiary may (1) be liquidated or dissolved, provided that the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, taken as a whole, and the Borrower or any Subsidiary receives any assets of the relevant dissolved or liquidated Subsidiary (2) be merged, consolidated or amalgamated with or into the Borrower or any other Subsidiary, and (3) be converted into another form of entity, so long as such conversion does not materially and adversely affect the value of the Loan guarantee or the Collateral, taken as a whole; provided that:
(a) in the case of any such merger, consolidation or amalgamation with or into the Borrower, the Borrower shall be the continuing or surviving Person; and
60
(b) otherwise, in the case of any such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of a Subsidiary Guarantor.
Section 6.04 Transactions With Affiliates.
(a) The Loan Parties shall not enter into, amend or terminate any contract with any other Loan Party or any of its Affiliates (including any portfolio company thereof), on the one hand, and Holdings and any of its Subsidiaries, on the other hand, that is not on arm’s length terms, except (i) any Loan Party or any of its Subsidiaries may enter into services agreements providing services to Holdings and/or any of its Subsidiaries on economic terms that are at fully allocated cost plus ten percent (10%) or less and (i) for the Loans and any Incremental Equivalent Debt).
(b) Without the consent of the RXR Representative (for so long as the Applicable Percentage in the aggregate of the RXR Lenders is at least 25% in respect of all Loans), the Loan Parties and their Subsidiaries will not approve or consummate (i) the acquisition by Holdings or its Subsidiaries of a business owned by (whether via the purchase of stock or assets or via merger or other combination or reorganization transaction), or the entry by Holdings or its Subsidiaries into a Joint Venture with, in each case, any Member or any Affiliate of a Member or (ii) the sale of any assets owned by Holdings or any Subsidiary to any Member or any Affiliate of any Member.
Article 7
EVENTS OF DEFAULT
Section 7.01 Events of Default. If any of the following events (each, an “Event of Default”) occurs:
(a) Failure to Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise or (ii) any interest on any Loan, premium (including, for the avoidance of doubt, any Prepayment Premium) or any fee or any other amount due hereunder within five (5) Business Days after the date due; or
(b) Cross Default. Failure by the Borrower or any of its Subsidiaries to pay when due, whether at stated maturity or otherwise, any principal of or interest on or any other amount payable in respect of one (1) or more items of Indebtedness (other than Indebtedness referred to in Section 6.01 or any intercompany Indebtedness) an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the grace period, if any, provided therefor and solely to the extent that the holders of such Indebtedness have accelerated such Indebtedness; or
61
(c) Breach of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or condition contained in Article 6 and such failure continues for five (5) Business Days following the receipt of notice thereof from the Administrative Agent; or
(d) Breach of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document or in any certificate required to be delivered in connection herewith or therewith being untrue in any material respect as of the date made or deemed made; or
(e) Other Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein or any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default has not been remedied or waived within thirty (30) days after the earlier of (i) the date of receipt by the Borrower of written notice thereof from the Administrative Agent and (ii) knowledge of a Responsible Officer of the Borrower or any other Loan Party of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) The entry by a court of competent jurisdiction of a decree or order for relief in respect of any Loan Party or any of its Subsidiaries in an involuntary case under any Debtor Relief Law now or hereafter in effect; or any other similar relief shall be granted under any applicable federal, state, provincial, territorial or local Requirement of Law; or
(ii) the commencement of an involuntary case against any Loan Party or any of its Subsidiaries under any Debtor Relief Law; the entry by a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator, sequestrator, trustee, administrator, custodian, monitor or other officer having similar powers over any Loan Party or any of its Subsidiaries, or over all or a substantial part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party or any of its Subsidiaries for all or a substantial part of its property, which remains undismissed, unvacated, unbounded or unstayed pending appeal for sixty (60) consecutive days; or
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc.
(i) The consent, determination, approval, or agreement by any Loan Party or any of its Subsidiaries to seek relief under or commence voluntary cases under any Debtor Relief Law, the entry against any Loan Party or any of its Subsidiaries of an order for relief, the commencement by any Loan Party or any of its Subsidiaries of a voluntary case under any Debtor Relief Law, or the consent,
62
determination, approval, or agreement by any Loan Party or any of its Subsidiaries to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the consent, determination, approval, or agreement by any Loan Party or any of its Subsidiaries to the appointment of or taking possession by a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator, sequestrator, trustee, administrator, custodian, monitor or other officer having similar powers for or in respect of itself or for all or a substantial part of its property;
(ii) the making by any Loan Party or any of its Subsidiaries of a general assignment for the benefit of creditors; or
(iii) the admission by any Loan Party or any of its Subsidiaries in writing of their inability to pay their respective debts as such debts become due;
(g) Judgments and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar process against the Borrower or any of its Subsidiaries or any of their respective assets involving in the aggregate at any time an amount in excess of the Threshold Amount (in either case to the extent not adequately covered by self-insurance (if applicable), indemnification or by insurance as to which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of sixty (60) days; or
(h) [Reserved]; or
(i) Guarantees, Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof,
(i) any material Loan Guarantee for any reason, other than the occurrence of the Termination Date, shall cease to be in full force and effect (other than in accordance with its terms) or is declared to be null and void or any Loan Guarantor shall repudiate in writing its obligations thereunder (other than as a result of the discharge of such Loan Guarantor in accordance with the terms thereof),
(ii) this Agreement or any material Collateral Document ceases to be in full force and effect or shall be declared null and void or any Lien on Collateral created under any Collateral Document ceases to be perfected with respect to a material portion of the Collateral (other than solely by reason of (x) the failure of the Administrative Agent to maintain possession of any Collateral actually delivered to it or the failure of the Administrative Agent (upon receipt of written instructions from the Required Lenders) to file a UCC continuation statement or any equivalent financing statement or registration, (y) a release of Collateral in accordance with the terms hereof or thereof or (z) the occurrence of the Termination Date or any other termination of such Collateral Document in accordance with the terms thereof); or
63
(iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any Lien has been, or is required to be released, any Loan Party shall contest in writing the validity or enforceability of any material provision of any Loan Document (or any Lien purported to be created by the Collateral Documents or any Loan Guarantee) or denies in writing that it has any further liability (other than by reason of the occurrence of the Termination Date), including with respect to future advances by the Term Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Administrative Agent to maintain possession of any Collateral actually delivered to it or file any UCC continuation statement or equivalent financing statement or registration shall not result in an Event of Default under this clause (iii) or any other provision of any Loan Document;
then, and in every such event (other than an event with respect to the Borrower described in Section 7.01(f) or (g)), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, on one or more occasions, at the same or different times, declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower;
provided that upon the occurrence of an event with respect to the Borrower described in Section 7.01(f) or (g), the principal of the Loans then outstanding, together with accrued interest thereon and all fees and any other Obligations of the Borrower accrued or accruing hereunder, including any Prepayment Premium, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and the obligation of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall automatically become effective, in each case without further action of the Administrative Agent or any Term Lender. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC or equivalent applicable Requirement of Law, as applicable.
Without limiting the generality of the foregoing in this Article 7, it is understood and agreed that if the Obligations are accelerated as a result of any Event of Default (including an acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code of the United States or other Debtor Relief Laws or upon the occurrence of an Event of Default pursuant to Sections 7.01(f) or (g)), the Prepayment Premium, shall also be due and payable on such date and such Prepayment Premium shall constitute part of the Obligations. In view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits and actual damages as a result thereof, the Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the
64
result of the applicable event giving rise thereto and the Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding, deed in lieu of foreclosure or by any other means). THE BORROWER HEREBY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. The Borrower expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium are reasonable and are the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then-prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Term Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; (D) any such Loan Party shall not challenge or question, or support any other Person in challenging or questioning, the validity or enforceability of the Prepayment Premium or any similar or comparable prepayment fee, and such Loan Party shall be estopped from raising or relying on any judicial decision or ruling questioning the validity or enforceability of any prepayment fee similar or comparable to the Prepayment Premium; (E) the Prepayment Premium shall be deemed earned on the Closing Date and due and payable upon the applicable triggering event, and (F) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrower expressly acknowledges that its agreement to pay the Prepayment Premium to the Term Lenders as herein described are individually and collectively a material inducement to the Term Lenders to provide the Initial Term Loans, any Delayed Draw Term Loans and any Delayed Draw Term Loan Commitments.
Article 8
THE AGENTS
Section 8.01 Administrative Agent and Collateral Agent.
(a) Each of the Term Lenders hereby, each, on behalf of itself and its applicable Affiliates irrevocably appoints Cantor Fitzgerald Securities (or any successor appointed pursuant hereto) as Collateral Agent and Cantor Fitzgerald Securities (or any successor appointed pursuant hereto) as Administrative Agent. Each of the Term Lenders hereby appoints each such Agent as its attorney-in-fact, with full power of substitution, for and on behalf of and in the name of each such Lender and authorizes each Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Unless otherwise specified herein, any consent, approval, determination, calculation or similar function either Agent is tasked with hereunder or under any other Loan Document, may be made by the applicable Agent upon consultation with and/or at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders.
65
(b) Unless such Person is in fact not a Term Lender, any Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Term Lender as any other Lender and may exercise the same as though it were not an Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not an Agent hereunder. The Lenders acknowledge that, pursuant to such activities, each Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that such Agent shall not be under any obligation to provide such information to them.
(c) No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents and its duties shall be administrative in nature. Without limiting the generality of the foregoing,
(i) no Agent shall be subject to any fiduciary or other implied duty, regardless of whether any Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent, the Collateral Agent, the Agents or an Agent is not intended to connote any fiduciary or other implied (or express) obligation arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties,
(ii) Notwithstanding anything else to the contrary herein or in the other Loan Documents, no Agent shall have any duty to take any discretionary action or refrain from acting or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Term Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02) it being understood that such Agent shall be fully protected in acting pursuant to such direction; provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and
(iii) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity.
66
(d) Neither any Agent nor any of such Agent’s Related Parties shall be liable to the Term Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the written request of the Required Lenders (or such other number or percentage of the Term Lenders as is necessary, or as the applicable Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein; provided that no action taken or not taken by any Agent at the direction of the Required Lenders (or such other number or percentage of the Term Lenders as is necessary under the relevant circumstances as provided in Section 9.02) shall be considered gross negligence or willful misconduct of such Agent. No Agent shall be required to use, risk, or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder. No Agent shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to such Agent by the Borrower or any Term Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into:
(i) any statement, warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document,
(iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document,
(v) the creation, continuation, perfection or priority of any Lien on the Collateral or the existence, genuineness, value, validity or sufficiency of the Collateral whether impaired by operation of law or by reason of any action or omission to act on their respective part hereunder or under the Security Agreement or to assure that the Liens granted to the Collateral Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority,
(vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or
(vii) any property, book or record of any Loan Party or any Affiliate thereof.
(e) Each Lender agrees that, except with the written consent of the Administrative Agent (at the written direction of the Required Lenders), it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable Requirements of Law or otherwise to credit bid at any foreclosure sale,
67
UCC sale, any sale under section 363 of the Bankruptcy Code or any other similar Disposition of Collateral. Notwithstanding the foregoing, any Term Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case under any Debtor Relief Law.
(f) Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, each Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guarantee; it being understood and agreed that all powers (including all foreclosure powers), rights and remedies hereunder may be exercised solely by the Administrative Agent (at the written direction of the Required Lenders) on behalf of the Secured Parties in accordance with the terms hereof, and all powers (including all foreclosure powers), rights and remedies under the other Loan Documents may be exercised solely by the Administrative Agent and/or the Collateral Agent, as applicable, (in each case, at the written direction of the Required Lenders), and (ii) in the event of a foreclosure by the applicable Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent and/or the Collateral Agent, as applicable, as agent for and representative of the Secured Parties, shall be entitled (at the written direction of the Required Lenders), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the applicable Agent at such Disposition and (B) the Administrative Agent (or its agent) or any Term Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition.
(g) Each of the Term Lenders hereby irrevocably authorizes the Administrative Agent and/or the Collateral Agent, as applicable, on behalf of all Secured Parties, to take any of the following actions upon the instruction of the Required Lenders:
(i) consent to the use of cash collateral by the Borrower in the event the Borrower files for bankruptcy protection under Chapter 11 of the of the Bankruptcy Code;
(ii) consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Obligations in connection with any Disposition pursuant to the applicable provisions of any Debtor Relief Law, including Section 363 of the Bankruptcy Code;
(iii) credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the applicable provisions of any Debtor Relief Law, including Section 363 of the Bankruptcy Code;
68
(iv) credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the applicable provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC;
(v) credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable Requirements of Law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; or
(vi) estimate the amount of any contingent or unliquidated Obligations of such Lender or other Secured Party for purposes of any credit bid or purchase describe in the second preceding paragraph below;
it being understood that no Lender shall be required to fund any amount in connection with any purchase of all or any portion of the Collateral by the Administrative Agent or the Collateral Agent pursuant to Section 8.01(g)(ii)-(iii) without its prior written consent.
Each Secured Party agrees that the Agents are under no obligation to credit bid any part of the Obligations or to purchase or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase under Section 8.01(g)(ii)-(iii), the Obligations owed to all of the Secured Parties (other than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, at the written direction of the Required Lenders, credit bid by any Agent on a ratable basis.
(h) With respect to any contingent or unliquidated claim that is an Obligation, the Administrative Agent or the Collateral Agent is hereby authorized, but is not required, to estimate the amount thereof (such estimate to be at the determination of the Administrative Agent or the Collateral Agent (at the direction of the Cantor Representative, or if the Cantor Representative is no longer a Lender, the Required Lenders), as applicable, for purposes of any credit bid or purchase described in the second preceding paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Agents to credit bid the Obligations or purchase the Collateral in the relevant Disposition. In the event that the relevant Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Agent to consummate any credit bid or purchase in accordance with the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
69
(i) Each Secured Party whose Obligations are credit bid under Section 8.01(g)(ii)-(iii) is entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the percentage obtained by dividing (i) the amount of the Obligations of such Secured Party that were credit bid in such credit bid or other Disposition, by (ii) the aggregate amount of all Obligations that were credit bid in such credit bid or other Disposition.
(j) In addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Secured Party agrees that the Administrative Agent and/or the Collateral Agent (irrespective of whether the principal of any Loan is then due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent has made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) at the direction of the Required Lenders, to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Term Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Term Lenders and the Agents and their respective agents and counsel and all other amounts to the extent due to the Term Lenders under Section 9.03) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
(k) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the relevant Agent(s) and, in the event that the Agents consent to the making of such payments directly to the Secured Parties, to pay to the Agents any amount due for the reasonable compensation, expenses, disbursements and advances of any Agent and its respective agents and counsel, and any other amount due to the Agents under Section 9.03.
(l) Nothing contained herein shall be deemed to authorize any Agent to authorize or consent to or accept or adopt on behalf of any Term Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Term Lender or to authorize any Agent to vote in respect of the claim of any Term Lender in any such proceeding.
(m) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice (including any telephonic notice), request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon.
70
In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Term Lender, the relevant Agent may presume that such condition is satisfactory to such Lender unless such Agent has received notice to the contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(n) Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents, employees or attorneys in fact appointed by it and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. Each Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent, employee or attorney in fact and to the Related Parties of the Agents and any such sub-agent, employee or attorney in fact. No Agent shall be responsible for the supervision, negligence or misconduct of any sub agent or attorney in fact that it selects with due care (in the absence of its own gross negligence or willful misconduct by such Agent, as determined by the final judgment of a court of competent jurisdiction). Any such delegation made shall not preclude the subsequent exercise of those rights and powers by any Agent, any revocation of such delegation or any subsequent delegation of any such rights, powers, authorities, and discretions.
(o) Each Agent may resign at any time by giving thirty (30) days’ written notice to the Term Lenders and the Borrower; provided that if no successor Agent is appointed in accordance with the terms set forth below within such thirty (30)-day period, the relevant Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor Agent or (y) the date that is twenty (20) days after the last day of such thirty (30)-day period. If the resigning Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender (and for the avoidance of doubt, the Administrative Agent is not a Term Lender and will not fund any amounts due hereunder or in connection herewith), either the Required Lenders or the Borrower may, upon ten (10) days’ notice, remove such Agent; provided that if no successor Agent is appointed in accordance with the terms set forth below within such ten (10)-day period, such Agent’s removal shall nonetheless be effective on the date that is twenty (20) days after the last day of such ten (10)-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Agent which shall be a commercial bank, trust company, financial institution or other Person reasonably acceptable to the Borrower with offices in the U.S.; provided that during the existence and continuation of an Event of Default under Section 7.01(a) or, with respect to the Borrower, Sections 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten (10) days after the retiring Agent gives notice of its resignation or such Agent receives notice of removal, then (a) in the case of a retirement, the retiring Agent may (but shall not be obligated to), on behalf of the Term Lenders, appoint a successor Agent meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the
71
Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required Lenders, appoint a successor Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the retiring Agent notifies the Borrower and the Term Lenders that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with such notice and (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Obligations, such retiring Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (ii) except for any indemnity payments or other amounts owed to the Agents, all payments, communications and determinations required to be made by, to or through the Administrative Agent (if that is the retiring Agent) shall instead be made by or to each Lender directly (and each Lender will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a Successor Administrative Agent, as provided above in this Section 8.01. Upon the acceptance of appointment as Agent hereunder as a successor Agent, the successor Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent (other than any rights to indemnity or other payments owed to the retiring Agent), and the retiring or removed Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.12). The fees payable by the Borrower to any successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Agent. After an Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Agent (including for this purpose holding any collateral security following the retirement or removal of the Collateral Agent).
(p) Each Lender acknowledges that it has, independently and without reliance upon the any Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and the other Loan Parties. Each Lender acknowledges that no Agent, nor any Related Party thereof, has made any representation or warranty to it, and that no act by any Agent or any Related Party thereof shall be deemed to constitute any representation or warranty by an Agent or such Related Party to any Term Lender as to any matter, including whether such Agent or the
72
Related Parties thereof have disclosed material information in their possession. Except for notices, reports and other documents expressly required to be furnished to the Term Lenders by the Administrative Agent herein, the Administrative Agent (or any other Agent) shall not have any duty or responsibility to provide any Term Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent or any of its Related Parties.
(q) Subject to the provisions of Section 9.02(b)(B), each Secured Party irrevocably authorizes and instructs each Agent, where applicable, to, and such Agent upon such Agent’s receipt of confirmatory written instruction from the Required Lenders shall:
(i) release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (A) upon the occurrence of the Termination Date, (B) that is sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents to a Person that is not a Loan Party, (C) that does not constitute (or ceases to constitute) Collateral, (D) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guarantee otherwise in accordance with the Loan Documents, or (E) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 9.02;
(ii) subject to Section 9.23, release Holdings or any Subsidiary Guarantor from its Loan Guarantee (x) upon the consummation of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Subsidiary and/or (y) upon the occurrence of the Termination Date;
(iii) subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by this Agreement (other than any Lien on the Capital Stock of the Borrower or any Subsidiary Guarantor); and
(iv) enter into subordination, intercreditor, collateral trust and/or similar agreements, in each case, reasonably acceptable to the Required Lenders, with respect to Indebtedness that is (x) required or permitted to be subordinated hereunder and/or (y) secured by Liens, and with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust agreement or similar agreement.
(r) Upon the request of any Agent at any time, the Required Lenders will confirm in writing such Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan Guarantee or its Lien on any Collateral pursuant to this Section 8.01. In each case specified in this Section 8.01, the applicable Agent will (and each Lender hereby authorizes such Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, to subordinate its interest therein, or to release such Loan Party from its obligations under the Loan Guarantee, in each case in accordance with the terms of the Loan Documents and this Section 8.01.
73
(s) Notwithstanding anything to the contrary contained herein, no Agent shall have any responsibility to the Secured Parties for or have any duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith nor shall the Collateral Agent be responsible or liable to the Term Lenders for any failure to monitor or maintain any portion of the Collateral. IT BEING UNDERSTOOD AND AGREED THAT IN RESPECT OF THE LOAN OR ANY LOAN DOCUMENT, OR ANY ACT, OMISSION OR EVENT RELATED THERETO, NO AGENT SHALL HAVE ANY DUTY OR LIABILITY WHATSOEVER WITH RESPECT TO ANY LOAN OR THE LOAN DOCUMENTS TO ANY PERSON IN THE ABSENCE OF ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NON-APPEALABLE JUDGMENT. Notwithstanding anything contained in the Loan Documents or otherwise to the contrary, no Agent shall have any duty to (i) unless instructed in writing to do so by the Required Lenders, file or prepare any financing or continuation statements or record any documents or instruments in any public office for purposes of creating, perfecting or maintaining any Lien or security interest created under the Loan Documents; provided that the Required Lenders agree to promptly provide the Collateral Agent with such instructions to the extent necessary to create, perfect or maintain any Lien or security interest created under the Loan Documents; (ii) take any necessary steps to preserve rights against any parties with respect to any Collateral; or (iii) take any action to protect against any diminution in value of the Collateral.
(t) Each Agent is authorized to enter into any intercreditor, subordination, collateral trust or similar agreement reasonably acceptable to it and contemplated hereby with respect to any Indebtedness (i) that is (A) required or permitted to be subordinated hereunder and/or (B) secured by Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional Agreement”), and the Secured Parties party hereto acknowledge that any Additional Agreement is binding upon them. Each Secured Party hereto hereby (a) agrees that they will be bound by, and will not take any action contrary to, the provisions of any Additional Agreement and (b) authorizes and instructs each Agent to enter into and/or any Additional Agreement and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions and the provisions of any Additional Agreement.
74
(u) To the extent that an Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with and to the extent required by Section 9.03(b), the Term Lenders will reimburse and indemnify such Agent (and any Affiliate thereof) in proportion to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Agent (or any Affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from any Agent’s (or such Affiliate’s) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(v) Notwithstanding anything to the contrary contained in this Agreement or in any Loan Document:
(i) Neither any of the Agents nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Loan Parties, or any of their directors, members, officers, agents, affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such parties. The Agents may assume performance by all such Persons of their respective obligations. No Agent shall have any enforcement or notification obligations relating to breaches or representations or warranties of any other Person.
(ii) No Agent shall be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control, including any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(iii) No Agent shall have any obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (x) unless instructed in writing to do so by the Required Lenders, create, perfect or validate any security interest granted to such Agent pursuant to any Loan Document; provided that the Required Lenders agree to promptly provide the Administrative Agent with such instructions to the extent necessary to create, perfect or maintain any Lien or security interest created under the Loan Documents or (y) enable such Agent to exercise and enforce its rights under any Loan Document. In addition, no Agent shall have any responsibility or liability (A) in connection with the acts or omissions of any Person in respect of the foregoing or (B) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or the perfection and priority of such security interest.
75
(iv) Whenever reference is made in this Agreement or any other Loan Document to any discretionary action by consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by an Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by such Agent (except for such Agent’s ability to enter into any amendment to the Agent Fee Letter or any other Loan Document to which it is a party when such amendment affects the rights and obligations of such Agent, each of which shall be made such Agent’s sole discretion), it is understood that in all cases that such Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence from the Required Lenders in respect of such action.
(v) No Agent shall be liable for any loss, including any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents; so long as such loss did not result from the gross negligence, bad faith or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction.
Section 8.02 Erroneous Payments.
(a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Term Lender under this Section 8.02 shall be conclusive, absent manifest error.
76
(b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Term Lender under this Section 8.02 shall be conclusive, absent manifest error.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Term Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case of this clause (y), to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such erroneous Payment. In addition, the Administrative Agent shall have the right, without prior notice to any Term Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Payment for which a demand has been made in accordance with this Section and which has not been returned to the Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Administrative Agent or any Affiliate, branch or agency thereof to or for the credit or the account of such Lender. The Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by Administrative Agent; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(d) Each party’s obligations under this Section 8.02 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Term Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
77
Article 9
MISCELLANEOUS
Section 9.01 Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to Section 9.01(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i) if to any Loan Party, to such Loan Party in the care of the Borrower at:
View Operations, LLC
6280 America Center Drive, Suite 200, San Jose, CA 95002
Attention: Bill Krause, Chief Legal Officer and Secretary
Telephone: (408) 263-9200
Email: bill.krause@view.com
with a copy to (which shall not constitute notice to any Loan Party):
Sidley Austin LLP
787 7th Ave, New York
NY 10019
Attention: Steven R. Rutkovsky; Daniel M. Philion
Telephone: 212 839 5948; 212 839 5596
Email: srutkovsky@sidley.com; dphilion@sidley.com
(ii) if to the Administrative Agent or Collateral Agent, to the address, facsimile number, electronic mail address or telephone number specified on Schedule 9.01; and
(iii) if to any Term Lender, to the address, facsimile number, electronic mail address or telephone number specified on Schedule 9.01.
All such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided that notices and other
78
communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b) Notices and other communications to the Term Lenders hereunder may be delivered or furnished by electronic communications (including e-mail) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative Agent or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such procedures may be limited to particular notices or communications. All such notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that any such notice or communication not given during the normal business hours of the recipient shall be deemed to have been given at the opening of business on the next Business Day for the recipient.
(c) Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto; it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself and each Lender.
Section 9.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent (or any other Agent) or any Term Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof except as provided herein or in any Loan Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agents and the Term Lenders hereunder and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any party hereto therefrom shall in any event be effective unless the same is permitted by this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, to the extent permitted by applicable Requirements of Law, the making of any Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent or any Term Lender may have had notice or knowledge of such Default or Event of Default at the time.
79
(b) Subject to this Section 9.02(b)(A) and (B) and Section 9.02(c), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Administrative Agent (or the Administrative Agent with the consent of the Required Lenders if required hereunder) or (ii) in the case of any other Loan Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that is party thereto, with the consent of the Required Lenders if required hereunder (which such writing and the applicable consents thereto may be provided by email); provided that, notwithstanding the foregoing:
(A) the consent of each Lender directly and adversely affected thereby shall be required for any waiver, amendment or modification that:
(1) increases the Commitment of such Lender; it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall constitute an increase of any Commitment of such Lender;
(2) reduces the principal amount of any Loan owed to such Lender;
(3) (x) extends the scheduled final maturity of any Loan or (y) postpones any Interest Payment Date with respect to any Loan held by such Lender or the date of any scheduled payment of any fee or premium payable to such Lender hereunder;
(4) reduces the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest to such Lender at the default rate of interest under Section 2.10(c), which shall only require the consent of the Required Lenders) or the amount of any fee or premium owed to such Lender;
(5) extends the expiry date of such Lender’s Commitment; it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment or mandatory reduction of any Commitment shall constitute an extension of any Commitment of any Term Lender; and
(6) waives, amends or modifies the provisions of Sections 2.14(b) or 2.14(c) in a manner that would by its terms alter the pro rata sharing of payments required thereby (except in connection with any transaction permitted as provided in this Section 9.02);
80
(7) changes or modifies any provision that would authorize the incurrence of additional Indebtedness (other than the Loans and any Incremental Equivalent Debt) that would be issued under this Agreement solely for the purpose of influencing any voting threshold in a manner that is material and adverse to any Lender, in each case, without the prior written consent of each Lender directly and adversely affected thereby;
(B) no such agreement shall:
(1) change any of the provisions of Section 9.02(a) or Section 9.02(b), the definition of “Required Lenders” or the definition of “Defaulting Lender”, to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent thereunder, without the prior written consent of each Lender;
(2) change the definition of “Available Incremental Amount” without the prior written consent of each Lender;
(3) release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted herein or in the other Loan Documents, including pursuant to Section 8.01) without the prior written consent of each Lender;
(4) release all or substantially all of the value of the Guarantees under the Loan Guarantee (except as otherwise permitted herein or in the other Loan Documents, including pursuant to Section 8.01 and Section 9.22), without the prior written consent of each Lender;
(5) modify any provision of this Agreement or any other Loan Document with the effect of altering the ratable sharing of payments or the allocation of proceeds waterfall, without the prior written consent of each Lender; or
(6) other than in connection with any Incremental Loan or Incremental Equivalent Debt incurred in accordance with Section 2.12, any change that, directly or indirectly, subordinates (1) the Liens securing the Loans or the Guarantees to the Liens securing any other Indebtedness or obligations or (2) the contractual right of payment on the Loans or the Guarantees to any other Indebtedness or obligations, in each case, requires the prior written consent of each Lender, unless offered to all Lenders on a pro rata basis on the same terms (including all economics, other than backstop fees);
81
(C) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent.
Notwithstanding anything to the contrary, any waiver relating to any provision of Sections 6.02, 6.03 and 8.01(e)-(j) shall, for so long as the Cantor Representative’s Applicable Percentage in the aggregate is greater than 0% with respect to all Loans, require only the consent of the Cantor Representative and the Borrower.
(c) Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any other Loan Document:
(i) the Borrower and the Administrative Agent and/or the Collateral Agent (acting at the direction of the Required Lenders) may, without the input or consent of any Term Lender (other than the Required Lenders), amend, supplement and/or waive any guarantee, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this Agreement to (A) comply with any Requirement of Law or the advice of counsel or (B) cause any such guarantee, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other Loan Documents;
(ii) the Borrower and the Administrative Agent (acting at the direction of the Required Lenders) may, without the input or consent of any other Lender (other than the relevant Lenders providing Loans under such Sections), effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to (1) effect the provisions of Sections 5.08, or any other provision specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent and/or (2) to add terms (including representations and warranties, conditions, prepayments, covenants or events of default), in connection with the addition of any Loan or Commitment hereunder, as reasonably determined by the Administrative Agent (acting at the direction of the Required Lenders) and the Borrower;
(iii) if the Required Lenders and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or any error or omission of a technical nature or any necessary or desirable technical change, in each case, in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision solely to address such matter as reasonably determined by them acting jointly;
(iv) the Administrative Agent (acting at the direction of the Required Lenders) and the Borrower may amend, restate, amend and restate or otherwise modify any Additional Agreement as provided therein;
82
(v) the Administrative Agent may (acting at the direction of the Required Lenders) amend the Commitment Schedule to reflect Commitment reductions or terminations pursuant to Section 2.06;
(vi) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except as permitted pursuant to Section 2.15(b) (it being understood that any Commitment or Loan held or deemed held by any Defaulting Lender shall be excluded from any vote hereunder that requires the consent of any Term Lender, except as expressly provided in Section 2.15(b));
(vii) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Agents and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Loan Documents and (ii) to include appropriately the Term Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Term Lenders prior to such inclusion;
(viii) only the consent of the Required Tranche B Delayed Draw Term Lenders will be required for any amendment of or waiver of any conditions precedent to the extension of credit (or deemed extension of credit) of a Tranche B Delayed Draw Term Loan;
(ix) only the consent of the Required Tranche C Delayed Draw Term Lenders will be required for any amendment of or waiver of any conditions precedent to the extension of credit (or deemed extension of credit) of a Tranche C Delayed Draw Term Loan; and
(x) only the consent of the Required Incremental Lenders with respect to an Incremental Loan will be required for any amendment of or waiver of any conditions precedent to the extension of credit (or deemed extension of credit) of an Incremental Loan.
Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendment.
Section 9.03 Expenses; Indemnity.
(a) The Borrower shall pay
(i) all reasonable and documented out-of-pocket expenses (provided, for the avoidance of doubt, that such out-of-pocket expenses may refer to those documented expenses payable to third parties that are unpaid), incurred by each
83
Lender, the Agents and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (i) Troutman Pepper Hamilton Sanders LLP, as counsel to the Agents and their Affiliates, taken as a whole, (ii) Sidley Austin LLP and Gibson, Dunn & Crutcher LLP if reasonably necessary, of one local counsel in any relevant jurisdiction to the Term Lenders and their Affiliates (as applicable) , taken as a whole in connection with the negotiation, preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, except as otherwise provided in a separate writing among the Borrower, the Term Lenders and/or the Agents; and
(ii) all reasonable and documented out-of-pocket expenses incurred by the Agents or the Term Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (i) Troutman Pepper Hamilton Sanders LLP, as counsel to the Agents and their Affiliates, taken as a whole, (ii) (x) Sidley Austin LLP and, if necessary, of one local counsel in any relevant jurisdiction to the Term Lenders and their Affiliates, taken as a whole, (iii) (x) Gibson, Dunn & Crutcher LLP and, if necessary, of one local counsel in any relevant jurisdiction to the Term Lenders and their Affiliates, taken as a whole and (y) solely in the case of an actual or potential conflict of interest, (A) one additional counsel to the Term Lenders and their Affiliates similarly affected, taken as a whole and (B) one additional local counsel to the Term Lenders and their Affiliates similarly affected, taken as a whole, in any relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder.
Except to the extent required to be paid on the Closing Date, all amounts due under this Section 9.03(a) shall be payable by the Borrower within thirty (30) days of receipt by the Borrower of an invoice setting forth such expenses, as agreed by the applicable party incurring such amount, in reasonable detail, together with backup documentation supporting the relevant reimbursement request.
(b) The Borrower shall indemnify the Agents and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees (for avoidance of doubt, such out-of-pocket expenses may refer to those documented expenses payable to third parties that are unpaid), disbursements and other charges of (w) Troutman Pepper Hamilton Sanders LLP, as counsel to the Agents and their Affiliates, taken as a whole, (x) Sidley Austin LLP and, if reasonably necessary, of one local counsel in any relevant jurisdiction to the Agents and their Affiliates, taken as a whole, (y) Gibson, Dunn & Crutcher LLP and if reasonably necessary, of one local counsel in any relevant jurisdiction to the Term Lenders and their
84
Affiliates, taken as a whole, and (z) solely in the case of an actual or potential conflict of interest, (A) one additional counsel to all similarly affected Indemnitees, taken as a whole, and (B) one additional local counsel to all similarly affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of:
(i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents,
(ii) the use of the proceeds of the Loans or any Letters of Credit,
(iii) any actual or alleged Release of Hazardous Materials on, at, in, under, to or from any property currently or, to the extent caused by the Borrower or any of its Subsidiaries, formerly owned, leased or operated by the Borrower, any of its Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Subsidiaries or any other Loan Party and/or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third party, the Borrower, any other Loan Party or any of their respective Affiliates);
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability:
(i) is determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, and provided further, that such indemnity shall not, as to any Indemnitee who is also a Term Lender (a “Lender Indemnitee”) be available to the extent such judgment finds that any such loss, claim, damage, or liability is determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from such Lender Indemnitee’s material breach of the Loan Documents or
(ii) arises out of any claim, litigation, investigation or proceeding brought by such Lender Indemnitee against another Lender Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against any Agent, acting in its capacity as an Agent) that does not involve any act or omission of the Borrower or any of its Subsidiaries.
Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03 to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof as determined by a final and non-appealable judgment of a court of
85
competent jurisdiction. All amounts due under this Section 9.03(b) shall be payable by the Borrower within ten (10) days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim.
(c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.
Section 9.04 Waiver of Claim. To the extent permitted by applicable Requirements of Law, no party to this Agreement shall assert, and each hereby waives, any claim against any other party hereto, any Loan Party and/or any Related Party of any thereof, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof, except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 9.03.
Section 9.05 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided that (i) except in a transaction expressly permitted under the Holdings LLCA (including Section 5.10 thereof), the Borrower may not assign or otherwise transfer any of their rights or obligations hereunder without the prior written consent of each Required Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign, participate or otherwise transfer its rights or obligations hereunder except as permitted or required in accordance with Section 2.14 or Section 2.15, or with the prior written consent of each Required Lender (any attempted assignment or transfer not complying with the terms of this Section 9.05 shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns (to the extent provided in this Section 9.05), and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents and the Term Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
86
Section 9.06 Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loan regardless of any investigation made by any such other party or on its behalf and notwithstanding that either Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date. The provisions of Sections 2.13, 9.03 and 9.13 and Article 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the occurrence of the Termination Date or the termination of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this Agreement.
Section 9.07 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and the Agent Fee Letter constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective when it has been executed by Holdings, the Borrower and the Agents and when the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or “.tiff” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 9.08 Severability. To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.09 Right of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations (in any currency) at any time owing by the Administrative Agent, such Lender to or for the credit or the account of any Loan Party against any of and all the Obligations held by the Administrative Agent or such Lender, irrespective of whether or not the Administrative Agent or such Lender shall have made any demand under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section. The rights of each Lender and the Administrative Agent under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender or the Administrative Agent may have.
87
Section 9.10 Governing Law; Jurisdiction; Consent to Service of Process.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM), OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH COURT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ITS RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 9.10(b). EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
88
(d) TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
Section 9.11 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.13 Confidentiality.
Each of the Administrative Agent and each Lender agrees to maintain the confidentiality of the Confidential Information, except that Confidential Information may be disclosed
(a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or other experts and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”) and/or funding and financing sources on a “need to know” basis solely in connection with the transactions contemplated hereby and who are informed of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and their Representatives’ compliance with this paragraph,
89
(b) to the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by applicable Requirements of Law, inform the Borrower promptly in advance thereof and (ii) except with respect to any audit or examination conducted by bank regulatory authorities, use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment),
(c) upon the demand or request of any regulatory or Governmental Authority (including any self-regulatory body or the National Association of Insurance Commissioners) purporting to have jurisdiction over such Person or its Affiliates (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory or self-regulatory authority exercising examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Borrower promptly in advance thereof and (ii) use commercially reasonable efforts to ensure that any information so disclosed is accorded confidential treatment),
(d) to any other party to this Agreement,
(e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this Section or as otherwise reasonably acceptable to Holdings, the Borrower and the Administrative Agent but in no event less restrictive as those set forth in this Section) in accordance with market standards for dissemination of the relevant type of information, which shall in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential Information and acknowledge its confidentiality obligations in respect thereof, to
(i) any Eligible Assignee of, or any prospective Eligible Assignee of any Commitments or the Loans under this Agreement, and
(ii) any actual or prospective, direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction or similar derivative instrument to which any Loan Party is a party,
(f) with the prior written consent of the Borrower,
(g) to the extent the Confidential Information becomes publicly available other than as a result of a breach of this Section by such Person, its Affiliates or their respective Representatives or to the extent any such information,
(h) is received by such Person from a third party that is not to such Person’s knowledge, after reasonable investigation, subject to confidentiality obligations owing the Borrower or any of its respective Affiliates or Related Parties or
90
(i) was already in such Person’s possession (except to the extent received in a manner that would be restricted by this paragraph) or is independently developed by such Person based exclusively on information the disclosure of which would not otherwise be restricted by this paragraph.
For purposes of this Section, “Confidential Information” means all information relating to the Loan Parties and/or any of their Subsidiaries and their respective businesses or the Transactions (including any information obtained by the Administrative Agent or any Term Lender, or any of their respective Affiliates or Representatives, based on a review of any books and records relating to the Loan Parties and/or any of their Subsidiaries and their respective Affiliates from time to time, including prior to the date hereof) other than any such information that is publicly available to the Administrative Agent or Lender on a non-confidential basis prior to disclosure by any Loan Party or any of its Subsidiaries.
Section 9.14 No Fiduciary Duty. Each of the Agents, each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent and the Term Lenders, on the one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the other. Each Loan Party acknowledges and agrees that: (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between any Agent and the Term Lenders, on the one hand, and the Loan Parties and their respective Affiliates, on the other, and (ii) in connection therewith and with the process leading thereto, (x) none of the Agents or any Term Lender, in its capacity as such, has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Agent or any such Lender has advised, is currently advising or will advise any Loan Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender, in its capacity as such, is acting solely as principal and not as the agent or fiduciary of such Loan Party, its respective management, stockholders, creditors or any other Person. To the fullest extent permitted by applicable Requirements of Law, each Loan Party waives any claim that it may have against any Term Lender with respect to any breach or alleged breach of fiduciary duty arising solely by virtue of this Agreement. Each Loan Party acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party further agrees that none of the Agents or any Term Lender has any obligation to the Loan Parties or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and the Agents and the Term Lenders, and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their respective Affiliates.
91
Section 9.15 Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation amendments or other Borrowing Requests, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 9.16 Several Obligations. The respective obligations of the Term Lenders hereunder are several and not joint and the failure of any Term Lender to make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder.
Section 9.17 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act and the customer due diligence requirements for financial institutions of the Financial Crimes Enforcement Network (as published at 81 FR 29397, 31 CFR 1010, 1020, 1023, 1024, and 1026), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the USA PATRIOT Act and the customer due diligence requirements for financial institutions of the Financial Crimes Enforcement Network.
Section 9.18 Disclosure of Agent Conflicts. Each Loan Party and each Lender hereby acknowledge and agree that any Agent and/or an Affiliate thereof from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties and their respective Affiliates.
Section 9.19 Appointment for Perfection. Each Lender hereby appoints the Collateral Agent as its agent for the purpose of perfecting Liens for the benefit of the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable Requirement of Law can be perfected only by possession. If any Term Lender obtains possession of any Collateral, such Lender shall notify the Collateral Agent thereof and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
Section 9.20 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable Requirements of Law (collectively the “Charged Amounts”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan hereunder, together with all Charged Amounts payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charged Amounts that would have been payable in respect of such Loan but were not payable as a result of the
92
operation of this Section shall be cumulated and the interest and Charged Amounts payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, have been received by such Lender.
Section 9.21 [Reserved].
Section 9.22 Conflicts. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in the event of any conflict or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall govern and control.
Section 9.23 Release of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, any Subsidiary Guarantor shall automatically be released from its obligations hereunder (and its Loan Guarantee shall be automatically released) (i) upon the consummation of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Subsidiary and/or (ii) upon the occurrence of the Termination Date; provided that (1) no such Guarantor may be released from its Obligations solely as a result of becoming a non-wholly-owned Subsidiary, unless such Guarantor becomes a non-wholly-owned Subsidiary solely as a result of a transaction permitted under this Agreement with a Person that is not an Affiliate of Holdings (other than to the extent such Person becomes a non-Affiliate of Holdings as a result of such transaction) and entered into for a bona fide business purpose, (2) no Subsidiary Guarantor shall be automatically released from its obligations hereunder in connection with the transfer of such Subsidiary Guarantor’s Capital Stock to any Affiliate of the Borrower in connection with a non-bona fide transaction the purpose of which was to cause such entity to cease to be a Subsidiary Guarantor, (3) at the time of any release pursuant to this Section, no Event of Default has occurred and is continuing or would result therefrom, and (4) a Responsible Officer of a Loan Party certifies to the Administrative Agent compliance with preceding clauses (1) through (3). In connection with any such release, each of the Administrative Agent and the Collateral Agent shall promptly execute and delivery to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release. Any execution and delivery of any document pursuant to the preceding sentence of this Section shall be without recourse to or warranty by the Agents (other than as to each Agent’s authority to execute and delivery such documents).
[SIGNATURE PAGES FOLLOW]
93
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| VIEW TOPCO, LLC, as Holdings | ||
| By: | ||
| Name: |
||
| Title: |
||
| VIEW OPERATIONS, LLC, as Borrower | ||
| By: | ||
| Name: |
||
| Title: |
||
[Signature Page to Credit Agreement – View Exit Facility – May 2024]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| CANTOR FITZGERALD SECURITIES, as Administrative Agent and Collateral Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement – View Exit Facility – May 2024]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| RXR FP INVESTOR LP, as a Term Lender | ||
| By: | ||
| Name: |
||
| Title: |
||
| RXR FP INVESTOR II LP, as a Term Lender | ||
| By: | ||
| Name: |
||
| Title: |
||
| RXR FP INVESTOR III LP, as a Term Lender | ||
| By: | ||
| Name: |
||
| Title: |
||
| RXR FP INVESTOR IV LP, as a Term Lender | ||
| By: | ||
| Name: |
||
| Title: |
||
| [RXR FP GP LLC], as a the RXR Representative | ||
| By: | ||
| Name: |
||
| Title: |
||
[Signature Page to Credit Agreement – View Exit Facility – May 2024]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| CANTOR FITZGERALD SECURITIES, as a Term Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement – View Exit Facility – May 2024]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| ANSON EAST MASTER FUND LP, as a Term Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
| ANSON INVESTMENTS MASTER FUND LP, as a Term Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
| ANSON NORTH STAR TACTICAL EQUITY FUND LP, as a Term Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
| ANSON OPPORTUNITIES MASTER FUND LP, as a Term Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement – View Exit Facility – May 2024]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| FUTURE SOLUTION INVESTMENTS, LLC, as a Term Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement – View Exit Facility – May 2024]
Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| In re:
VIEW, INC., et al.,
Debtors.1 |
Chapter 11
Case No. 24-10692 (CTG)
(Jointly Administered)
Re: Docket Nos. 16 and 190 |
ORDER (I) APPROVING DISCLOSURE STATEMENT
AND (II) CONFIRMING SECOND AMENDED JOINT PREPACKAGED CHAPTER
11 PLAN OF REORGANIZATION OF VIEW, INC., AND ITS DEBTOR AFFILIATES
Upon the filing by View, Inc. (“View”) and the debtors and debtors in possession in the above-captioned cases (collectively, the “Debtors”)2 of the Second Amended Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc., and its Debtor Affiliates [Docket No. 190] (as amended, modified, or supplemented, the “Prepackaged Plan”), which is attached hereto as Exhibit A, and the Disclosure Statement for the Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc. and its Debtor Affiliates [Docket No. 16] (as amended, modified, or supplemented, the “Disclosure Statement”); and the Court having entered the Order (I) Scheduling Combined Hearing to Consider Approval of Disclosure Statement and Confirmation of Prepackaged Joint Plan, (II) Establishing the Prepackaged Plan and Disclosure Statement Objection Deadline and Related Procedures, (III) Approving the Solicitation Procedures and Form of Ballot, (IV) Approving the Form and Manner of Notice of the Combined Hearing,
| 1 | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: View, Inc. (5065), View Operating Corporation (4899), and Iotium, Inc. (4600). The Debtors’ corporate headquarters is 6280 America Center Drive, Suite 200, San Jose, CA 95002. |
| 2 | Capitalized terms used in this Confirmation Order but not otherwise defined shall have the same meaning as in the Prepackaged Plan, Disclosure Statement or Scheduling Order, as applicable, unless the context otherwise requires. |
Objection Deadline, and Notice of Commencement, (V) Approving Notice and Objection Procedures for the Assumption of Executory Contracts and Unexpired Leases, and (VI) Granting Related Relief [Docket No. 68] (the “Scheduling Order”); and upon the Notice of (I) Commencement of Prepackaged Chapter 11 Bankruptcy Cases, (II) Combined Hearing to Consider Approval of Disclosure Statement, Confirmation of Prepackaged Joint Plan of Reorganization, and Related Matters, (III) Objection Deadline and Related Procedures, and (III) Summary of the Prepackaged Plan [Docket No. 80] (the “Combined Hearing Notice”); and the Debtors having filed the plan supplement [Docket No. 137] and the second plan supplement [Docket No. 189] (as amended, modified or supplemented, the “Plan Supplement”), which included, among other things, certain of the other Confirmation Documents (as defined below); and the Debtors having filed the following:
| i. | Declaration of Thomas King in Support of Chapter 11 Petitions and First Day Pleadings [Docket No. 19]; |
| ii. | Affidavit of Service by Herb Baer of Kroll Restructuring Administration LLC [Docket No. 54] |
| iii. | Affidavit of Service of Solicitation Materials by Craig E. Johnson of Kroll Restructuring Administration LLC [Docket No. 90]; |
| iv. | Certificate of Publication by Justin Lewinson of Kroll Restructuring Administrations LLC [Docket No. 91]; |
| v. | Affidavit of Service by James Roy of Kroll Restructuring Administration LLC [Docket No. 140]; |
| vi. | Affidavit of Service by Ishrat Khan of Kroll Restructuring Administration LLC [Docket No. 141]; |
2
| vii. | Affidavit of Service by James Roy of Kroll Restructuring Administration LLC [Docket No. 145]; |
| viii. | Affidavit of Service of Solicitation Materials by James Roy of Kroll Restructuring Administration LLC [Docket No. 147]; and |
| ix. | Declaration of Craig E. Johnson of Kroll Restructuring Administration LLC Regarding the Solicitation of Votes and Tabulation of Ballots Cast on the Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc. and Its Debtor Affiliates [Docket No. 158], |
((i) through (x) collectively, the “Confirmation Documents”); and this Court having held a hearing on May 13, 2024, to consider, among other things, approval of the Disclosure Statement and confirmation of the Prepackaged Plan (the “Combined Hearing”); and upon the Confirmation Documents, and the evidence adduced at, and the record of, the Combined Hearing; and upon the record of these Chapter 11 Cases; and after due deliberation:
THIS COURT HEREBY FINDS:3
A. The United States District Court for the District of Delaware has jurisdiction over these Chapter 11 Cases pursuant to 28 U.S.C. § 1334, which was referred to this United States Bankruptcy Court for the District of Delaware (the “Court”) under 28 U.S.C. § 157 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012. Venue of these proceeding and the Chapter 11 Cases in this District is proper under 28 U.S.C. §§ 1408 and 1409. This is a core proceeding under 28 U.S.C. § 157(b)(2) and this Court may enter a final order hereon under Article III of the United States Constitution.
| 3 | To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such, and to the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. |
3
B. The Disclosure Statement provided Classes 4 and 5 (the “Voting Classes”), the only Classes of Claims or Interests entitled to vote on the Prepackaged Plan, with adequate information to make an informed decision as to whether to vote to accept or reject the Prepackaged Plan in accordance with section 1125(a)(1) of the Bankruptcy Code.
C. The Disclosure Statement (including all exhibits thereto) and the Combined Hearing Notice provided holders of Claims and Interests and other parties in interest with sufficient notice of the release, injunction, and exculpation provisions contained in Article VIII of the Prepackaged Plan, in satisfaction of the requirements of Bankruptcy Rule 3016(c).
D. The Debtors have complied with the Scheduling Order. The Combined Hearing Notice was proper, timely, and adequate in accordance with the Scheduling Order and in compliance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. No other or further notice is required.
E. Each of the Debtors has met the burden of proving that the Prepackaged Plan satisfies or complies with all applicable provisions of sections 1122, 1123, 1125, 1126, and 1129 of the Bankruptcy Code by a preponderance of the evidence.
F. The principal purpose of the Prepackaged Plan is not the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act of 1933.
G. Each of the Debtors solicited the Prepackaged Plan in good faith and in compliance with applicable provisions of the Bankruptcy Code and Bankruptcy Rules. All affected parties in interest had due and adequate notice and opportunity to participate in the Prepackaged Plan confirmation process and the Combined Hearing. Any modifications to the Prepackaged Plan do not require additional disclosure or re-solicitation of votes.
4
H. The Debtors, the Released Parties, and the Exculpated Parties have acted in good faith in all aspects with respect to the Prepackaged Plan, including within the meaning of section 1125(e) of the Bankruptcy Code, and the Debtors proposed the Prepackaged Plan in good faith and not by any means forbidden by law. The Prepackaged Plan has been proposed with the legitimate purpose of maximizing the returns available to creditors and other parties in interest. The arm’s-length negotiations between, among others, the Debtors, the Consenting Creditors, the holders of the Prepetition Convertible Notes Claims, the holders of the Prepetition Term Loan Claims, and the holders of certain Existing Equity Interests, provide independent evidence of the good faith in proposing the Prepackaged Plan.
I. With respect to each Debtor, votes to accept or reject the Prepackaged Plan have been solicited and tabulated fairly, in good faith, and in a manner consistent with the Bankruptcy Code and the Bankruptcy Rules.
J. The holders of Claims in the Voting Classes, the Prepetition Term Loan Claims and Prepetition Convertible Notes Claims, are impaired under the Prepackaged Plan and have voted to accept the Prepackaged Plan in the numbers and amounts required by section 1126(d) of the Bankruptcy Code.
K. The Prepackaged Plan does not discriminate unfairly and is fair and equitable with respect to the Classes that are impaired and are deemed to reject the Prepackaged Plan.
L. The holders of Prepetition Convertible Notes have not received disparate treatment under the Prepackaged Plan or any related or ancillary transactions or agreements, and their treatment is consistent with the terms and conditions under the Prepetition Convertible Notes Documents.
5
M. The Prepetition Convertible Notes Trustee diligently and in good faith discharged its duties and obligations under the Prepetition Convertible Notes Documents and otherwise conducted itself with the same degree of care and skill that a prudent person would exercise under the circumstances with respect to all matters in any way related to the Prepetition Convertible Notes Documents and related transactions.
N. The disclosures made in the Plan Supplement comply with section 1129(a)(5) of the Plan Supplement to the extent applicable.
O. As set forth below, the releases, injunctions, and exculpations in Article VIII of the Prepackaged Plan are appropriate under applicable law.
| a) | Releases by the Debtors. The release set forth in Article VIII.C of the Prepackaged Plan, and each of the related provisions and definitions contained therein, represent a valid exercise of the Debtors’ business judgment and is therefore approved. |
| b) | Releases by Releasing Parties. The release set forth in Article VIII.D of the Prepackaged Plan, and each of the related provisions and definitions contained therein, is consensual and therefore approved. |
| c) | Exculpation. The exculpation set forth in Article VIII.E of the Prepackaged Plan, and each of the related provisions and definitions contained therein, meet the standard to which fiduciaries are held as reflected in In re PWS Holding Corp., 228 F.3d 224 (3d Cir. 2000) and is therefore approved. |
| d) | Injunction. The permanent injunction set forth in Article VIII.F of the Prepackaged Plan, and each of the related provisions and definitions contained therein, serves to effectuate the foregoing release and exculpation provisions and is therefore approved. |
P. The form of the ballot (the “Ballot”) provided to and used by the holders of Claims in the Voting Classes to vote on the Prepackaged Plan adequately addressed the particular needs of the Chapter 11 Cases and was appropriate.
6
Q. The settlements and compromises incorporated in the Prepackaged Plan (including, without limitation, the settlement and compromise of Claims, Interests, and controversies relating to the contractual, legal, equitable, and subordination rights that each creditor or Interest holder may have with respect to any Claim or Interest or any distribution to be made on account of an Allowed Claim or Allowed Interest), and the settlements and compromises set forth in the Restructuring Support Agreement (which are adopted by way of the Prepackaged Plan) are in the best interests of the Debtors, the Estates, the Debtors’ creditors, any Interest holders, and other parties in interest, are both fair and equitable, and are within the range of reasonableness.
R. The Claims and Interests placed in each Class are substantially similar to other Claims and Interests in each such Class. Valid business, factual, and legal reasons exist for separately classifying the various Classes of Claims and Interests created under the Prepackaged Plan, and the Debtors’ classification scheme does not unfairly discriminate between holders of Claims or Interests. Furthermore, the Prepackaged Plan provides for the same treatment by the Debtors for each Claim or Interest in each respective Class, unless the holder of a particular Claim or Interest has agreed to a less favorable treatment of such Claim or Interest.
IT IS HEREBY ORDERED THAT:
A. Approval of the Disclosure Statement
1. The Disclosure Statement is approved as having adequate information as contemplated by section 1125(a)(1) of the Bankruptcy Code. All objections or reservations of rights in respect of the Disclosure Statement that have not been withdrawn or resolved before the Combined Hearing are overruled.
7
B. Confirmation of the Prepackaged Plan
2. The Prepackaged Plan satisfies or complies with all applicable provisions of sections 1122, 1123, 1125, 1126, and 1129 of the Bankruptcy Code and is confirmed pursuant to section 1129 of the Bankruptcy Code. The Debtors and the Reorganized Debtors (as applicable) are authorized to take all actions required to effectuate the Prepackaged Plan and the transactions contemplated therein.
3. All objections to or reservations of rights in respect of the Prepackaged Plan that have not been withdrawn or resolved before the Combined Hearing are overruled.
4. The terms of the Prepackaged Plan, the Plan Supplement, the Restructuring Support Agreement, the Plan Documents (as defined herein), and all the exhibits to all of the foregoing are hereby approved by the Court and are binding. All other relevant and necessary documents executed or to be executed in connection with the transactions contemplated by the Prepackaged Plan shall be effective and binding as of the Effective Date. The failure to specifically include or refer to any particular article, section, or provision of the Prepackaged Plan, the Plan Supplement, the Restructuring Support Agreement, the other Plan Documents (as defined herein), or any related document in this Confirmation Order does not diminish or impair the effectiveness or enforceability of such article, section, or provision.
5. In accordance with Article III of the Prepackaged Plan, all Existing Equity Interests shall be cancelled on the Effective Date, including, without limitation, all shares of common stock of Parent, warrants for the purchase of common stock of Parent, and any restricted stock units of Parent, and the Subordinated Interests, including any of the forgoing that may arise in connection with any of the Debtors’ compensation programs or under any employment agreement. For the avoidance of doubt, any agreement, incentive program or other bonus program of the Debtors that provides for the granting or right to receive equity awards (or any other Existing Equity Interests) is terminated and/or canceled pursuant to the Prepackaged Plan. The New Board may elect to establish a replacement incentive plan in accordance with the New Corporate Governance Documents.
8
6. Except as otherwise provided in section 1141(d)(3) of the Bankruptcy Code, and subject to the occurrence of the Effective Date, on and after the entry of this Confirmation Order, the provisions of the Prepackaged Plan shall bind every holder of a Claim against or Interest in the Debtors and inure to the benefit of and be binding on such holder’s respective successors and assigns, regardless of whether the Claim or Interest of such holder is impaired under the Prepackaged Plan and whether such holder has accepted the Prepackaged Plan.
7. Except as otherwise set forth in the Prepackaged Plan (including, without limitation, Article III.C and VII of the Prepackaged Plan), Holders of Allowed Claims in Class 1, 2, or 6 of the Prepackaged Plan shall not be subject to any claims-resolution process in the Bankruptcy Court in connection with their Claims. Except as otherwise set forth in the Prepackaged Plan, Holders of Allowed Claims in Class 1, 2, or 6 of the Prepackaged Plan that are not subject to the Disputed Claims process set forth in Article VII of the Prepackaged Plan shall retain all of their rights under applicable non-bankruptcy law to pursue their Allowed Claims against the Debtors or Reorganized Debtors in any forum with jurisdiction over the parties, and all parties shall retain any and all rights, claims, causes of action, defenses, and remedies with respect thereto. Furthermore, from and after the Effective Date, the Reorganized Debtors may satisfy, dispute, settle, or otherwise compromise any such Claims without approval of the Bankruptcy Court.
9
8. Each of the settlements and compromises incorporated into the Prepackaged Plan, including, without limitation, the settlements and compromises set forth in the Restructuring Support Agreement and as further described in paragraphs 22 through 32 below, which are adopted by way of the Prepackaged Plan, satisfies the requirements of section 1129 of the Bankruptcy Code, and are approved and shall be effective immediately and binding on all parties in interest. The Prepackaged Plan shall be deemed a valid motion to approve the good faith compromise and settlement of such settlements and compromises pursuant to section 1123(b)(3) of the Bankruptcy Code.
9. This Confirmation Order constitutes all approvals and consents required, if any, by the laws, rules, or regulations of any state or any other governmental authority with respect to the implementation or consummation of the Prepackaged Plan and any documents, instruments, or agreements, and any amendments or modifications thereto, and any other acts that may be necessary or appropriate for the implementation or consummation of the Prepackaged Plan, the Disclosure Statement, any Plan Document, or the Restructuring Transactions.
10. Subject only to payment of any applicable filing fees under applicable nonbankruptcy law, each federal, state, commonwealth, local, foreign, or other Governmental Unit is authorized and directed to accept for filing and/or recording any and all documents, mortgages, and instruments necessary or appropriate to effectuate, implement, or consummate the transactions contemplated by the Prepackaged Plan, the Disclosure Statement, any Plan Document, and this Confirmation Order. No such Governmental Unit may require any payment that is the subject of Article IV.P of the Prepackaged Plan in respect of any filing or recording for such purpose.
10
11. To the maximum extent permitted by section 1145 of the Bankruptcy Code, the issuance of the New Common Interests (including the Tranche C Commitment Equity) to the Class 4 Prepetition Loan Claims and Class 5 Prepetition Convertible Notes Claims, each on account of their Allowed Claims, and the Exit Lenders, on account of their respective commitments under the New Exit Facility issued under the Prepackaged Plan is exempt from registration under applicable securities laws.
12. The amendments and modifications to the Prepackaged Plan since the filing thereof, including as may be reflected in the Prepackaged Plan and this Confirmation Order, are approved in accordance with section 1127(a) of the Bankruptcy Code and Bankruptcy Rule 3019(a).
13. The assumption of executory contracts and unexpired leases as set forth in Article V of the Prepackaged Plan is approved. As set forth in Article V.A of the Prepackaged Plan, all prepetition executory contracts and unexpired leases not otherwise assumed or rejected shall be assumed by the applicable Reorganized Debtor as of the Effective Date, other than those that are: (a) identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (b) previously expired or terminated pursuant to their own terms; (c) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (d) are the subject of a motion to reject that is pending on the Effective Date; or (e) have an ordered or requested effective date of rejection that is after the Effective Date. Notwithstanding anything to the contrary in the Prepackaged Plan or this Confirmation Order, the Debtors, or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to forty-five (45) days after the Effective Date, so long as such allocation, amendment, modification, or supplement is consistent with the Restructuring Support Agreement.
11
14. For the avoidance of doubt, pursuant to Bankruptcy Rule 3020(c)(1), the following provisions in the Prepackaged Plan are hereby approved and will be effective immediately on the Effective Date without further order or action by the Court, any of the parties to such release, or any other entity: (a) the Releases by the Debtors (Article VIII.C); (b) the Releases by Releasing Parties (Article VIII.D); (c) the Exculpation (Article VIII.E); and (d) the Injunction (Article VIII.F).
15. The Debtors and Reorganized Debtors, as applicable, are hereby authorized without further notice to or action, order or approval of the Court to enter into, perform under, and consummate the Restructuring Transactions, including as may be set forth in the Disclosure Statement, any Plan Document or the Restructuring Transactions Memorandum (if applicable), and may take all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Prepackaged Plan and the Restructuring Support Agreement that are consistent with and pursuant to the terms and conditions of the Prepackaged Plan and the Restructuring Support Agreement (and without the need for any approvals, authorizations, or consents except for those expressly required pursuant to the Prepackaged Plan). These actions to implement the Restructuring Transactions may include: (1) the execution and delivery of appropriate agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, arrangement, continuance, dissolution, sale, purchase, or liquidation containing terms that are consistent with the terms of the Prepackaged Plan and the Restructuring Support Agreement and that satisfy the applicable requirements of applicable Law and any other terms to which the applicable Entities may agree; (2) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Prepackaged Plan and the Restructuring Support Agreement and having other terms for which the applicable parties agree; (3) the filing of appropriate certificates
12
or articles of incorporation, formation, reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state or provincial Law; (4) the issuance of the New Common Interests (including the Tranche C Commitment Equity); (5) the execution and delivery of the New Corporate Governance Documents, and any certificates or articles of incorporation, bylaws, or such applicable formation documents (if any) of each Reorganized Debtor, as applicable (including all actions to be taken, undertakings to be made, and obligations to be incurred and fees and expenses to be paid by the Debtors and/or the Reorganized Debtors, as applicable); and (6) all other actions that the applicable Entities determine to be necessary, including making filings or recordings that may be required by applicable Law in connection with the Prepackaged Plan, as applicable (collectively, the “Plan Documents”), in each case that are contemplated to be executed and/or delivered, as applicable, on the Effective Date. All such documents are approved, incorporated in the Prepackaged Plan and this Confirmation Order by reference, and shall become effective in accordance with their terms and the Prepackaged Plan. Confirmation of the Prepackaged Plan shall be deemed approval of all obligations to be incurred and fees paid or to be paid by the Debtors or the Reorganized Debtors in connection with the Plan Documents. All Holders of Claims and Interests receiving distributions pursuant to the Prepackaged Plan and all other necessary parties in interest, including any and all agents thereof, shall prepare, execute, and deliver any agreements or documents, including any subscription agreements, and take any other actions as the Debtors and the Required Consenting Creditors may jointly determine are necessary or advisable.
13
16. On the Effective Date, the Reorganized Debtors shall enter into the Plan Documents (to the extent such Plan Documents have not already been executed) and the Plan Documents shall, subject to the satisfaction of the conditions thereof, constitute legal, valid, binding, and authorized joint and several obligations of the applicable Reorganized Debtors, enforceable in accordance with their respective terms, and such obligations shall not be, and shall not be deemed to be, enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination under applicable law, the Prepackaged Plan, or this Confirmation Order or on account of the confirmation or consummation of the Prepackaged Plan.
17. On the Effective Date, all of the Liens and security interests to be granted on the Effective Date in accordance with the Plan Documents shall, as applicable, (a) be legal, binding, enforceable, and automatically perfected Liens on, and security interests in, the collateral granted thereunder in accordance with the terms of the Plan Documents, as applicable, without (i) further approval of the Court, (ii) any approvals, consents or waivers of any other party, or (iii) further corporate, limited liability company or similar action or approval, as applicable, by any Debtor or Reorganized Debtor; (b) be deemed automatically attached and perfected on the Effective Date, subject only to such Liens and security interests as may be permitted under the Plan Documents, as applicable, without the necessity of filing or recording any financing statement, assignment, pledge, notice of lien or any similar document or instrument or taking any other action; and (c) not be subject to recharacterization or equitable subordination for any purposes whatsoever and shall not constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy law. The guarantees, pledges, liens, and other security interests granted to secure the obligations arising under the Plan Documents, as applicable, have been granted in good faith, for legitimate business purposes, and for reasonably equivalent value, shall be deemed to not constitute a fraudulent conveyance or fraudulent transfer, shall not otherwise be subject to avoidance, recharacterization, or subordination for any purposes whatsoever, and shall not constitute preferential transfers, fraudulent conveyances, or fraudulent transfers under the Bankruptcy Code or any applicable non-bankruptcy law.
14
18. Except as otherwise provided in the Prepackaged Plan, or in any contract, instrument, release, or other agreement or document created pursuant to the Prepackaged Plan, including the Plan Documents, on the Effective Date and concurrently with the applicable distributions made pursuant to the Prepackaged Plan and, in the case of a Secured Claim, satisfaction in full of the portion of the Secured Claim that is Allowed as of the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtors and their successors and assigns. All Holders of Claims are directed to cooperate with the Debtors or the Reorganized Debtors, as the case may be, in implementing this paragraph and any administrative details relating thereto.
19. The Debtors shall cause to be served a notice of the entry of this Confirmation Order and occurrence of the Effective Date (the “Notice of Effective Date”) upon (a) all parties listed in the creditor matrix maintained by Kroll Restructuring Administration LLC, and (b) such additional persons and entities as deemed appropriate by the Reorganized Debtors, no later than five (5) Business Days after the Effective Date.
C. Professional Fee Claims
20. All Professional Persons seeking approval by the Bankruptcy Court of compensation for services rendered or reimbursement of expenses incurred through and including the Confirmation Date under sections 330, 331, 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code shall file, on or before the date that is thirty (30) calendar days after the
15
Effective Date, their respective applications (collectively, the “Final Fee Applications”) for final allowances of compensation for services rendered, and reimbursement of expenses incurred between the Petition Date and the Confirmation Date and serve such applications upon the following parties (collectively, the “Notice Parties”): (a) counsel for the Debtors, Cole Schotz P.C., (i) 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, Attn: Patrick J. Reilley (preilley@coleschotz.com) and Stacy L. Newman (snewman@coleschotz.com), (ii) Court Plaza North, 25 Main Street, Hackensack, NJ 07601, Attn: Michael D. Sirota (msirota@coleschotz.com), David M. Bass (dbass@coleschotz.com) and Daniel J. Harris (dharris@coleschotz.com); (b) counsel to the Required Consenting Creditors, (i) Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019, Attn: Stephen E. Hessler (Shessller@sidley.com), Jason L. Hufendick (Jhufendick@sidley.com) and Margaret R. Alden (malden@sidley.com), (ii) Gibson, Dunn & Crutcher, LLP, 1050 Connecticut Avenue, N.W., Washington, D.C. 20036, Attn: Matthew J. Williams (Mwilliams@gibsondunn.com) and AnnElyse S. Gains (Agains@gibsondunn.com), and (iii) Young Conaway Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Wilmington, DE 19801, Attn: Andrew L. Magaziner (amagaziner@ycst.com); (c) the United States Trustee for the District of Delaware, 844 King Street, Suite 2207, Wilmington, Delaware 19801, Attn: Richard Schepacarter (Richard.Schepacarter@usdoj.gov); (d) counsel to any statutory committee appointed in the Chapter 11 Cases; and (e) to the extent not listed herein, those parties requesting notice pursuant to rule 2002 of the Bankruptcy Rules. Any objection to any Final Fee Application must be filed with this Court and served upon the applicable Professional Person and the other Notice Parties, so as to be actually received no later than 4:00 p.m. (prevailing Eastern Time) on the date that is twenty-one (21) calendar days after the filing of the applicable Final Fee Application.
16
E. Securities and Exchange Commission
21. Notwithstanding any language to the contrary in the Disclosure Statement, Prepackaged Plan and/or Confirmation Order, no provision shall (i) preclude the United States Securities and Exchange Commission (“SEC”) from enforcing its police or regulatory powers; or, (ii) enjoin, limit, impair, or delay the SEC from commencing or continuing any claims, causes of action, proceeding (other than any derivative claim, action or proceeding of or released by the Debtors) or investigations against any non-debtor person or non-debtor entity in any forum; provided, however, that the foregoing shall in no way limit the exculpations and protections provided for under section 1125(e) of the Bankruptcy Code or set forth in Article VIII.E of the Prepackaged Plan.
F. Chubb Companies
22. Notwithstanding anything to the contrary in the Disclosure Statement, the Prepackaged Plan, the Plan Supplement, the Confirmation Order, the Restructuring Support Agreement, the Definitive Documents, the DIP Orders or any other order or agreement related to post-petition or exit financing, any bar date notice, any claim objection, any notice related to Executory Contracts and/or of any Cure amount or Cure Claim, any other document related to any of the foregoing or any other order of the Bankruptcy Court (including, without limitation, any other provision that purports to be preemptory or supervening, grants an injunction, discharge or release, confers Bankruptcy Court jurisdiction, or requires a party to opt out of any releases), and as a supplement to Articles V.E and VI.K of the Prepackaged Plan: (a) on the Effective Date, the Reorganized Debtors shall be deemed to have assumed in their entirety, pursuant to sections 105 and 365 of the Bankruptcy Code, all insurance policies issued by ACE American Insurance Company, Westchester Fire Insurance Company, Federal Insurance Company and/or any of their
17
respective U.S.-based affiliates and predecessors (collectively, the “Chubb Companies”) to, or that provide coverage to, any of the Debtors (or any of their predecessors) at any time and all agreements, documents, and instruments relating thereto (collectively, the “Chubb Insurance Contracts”), all of which Chubb Insurance Contracts shall continue unaltered and in full force and effect; (b) nothing alters, modifies, releases, impairs, prejudices, amends or otherwise affects the legal, equitable, or contractual rights, obligations, and defenses of the Chubb Companies, the Debtors (or after the Effective Date, the Reorganized Debtors), or any other individual or entity, as applicable, under any of the Chubb Insurance Contracts, and any such rights and obligations shall be determined in accordance with the terms and conditions of the Chubb Insurance Contracts and applicable non-bankruptcy law; (c) on and after the Effective Date, the Reorganized Debtors shall be and remain liable in full for all of their and the Debtors’ duties and obligations (including without limitation all retentions) under the Chubb Insurance Contracts, regardless of whether such obligations arise before or after the Effective Date, and shall pay such obligations in full in the ordinary course of business; (d) for the avoidance of doubt, the Chubb Companies shall not need to nor be required to file or serve a Cure objection, any notice of recoupment, or a request, application, claim, Proof of Claim, or motion for payment or allowance of any Administrative Claim and shall not be subject to any claims bar date or similar deadline governing Cure amounts or Claims; and (e) the automatic stay of section 362(a) of the Bankruptcy Code and the injunctions set forth in Article VIII.F of the Prepackaged Plan, if and to the extent applicable, shall be deemed lifted without further order of the Bankruptcy Court, solely to permit: (I) claimants with valid workers’ compensation claims or direct action claims against any of the Chubb Companies under applicable non-bankruptcy law to proceed with their claims; (II) the Chubb Companies to administer, handle, defend, settle, and/or pay, in the ordinary course of business and without
18
further order of the Bankruptcy Court, (A) workers’ compensation claims, (B) claims where a claimant asserts a direct claim against any of the Chubb Companies under applicable non-bankruptcy law, or an order has been entered by the Bankruptcy Court granting a claimant relief from the automatic stay or the injunctions set forth in Article VIII.F of the Prepackaged Plan to proceed with its claim, and (C) all costs in relation to each of the foregoing; and (III) the Chubb Companies to at any time cancel any Chubb Insurance Contracts and take other actions relating to the Chubb Insurance Contracts (including effectuating a setoff and/or asserting any recoupment or subrogation rights or claims).
G. ASIC and Liberty Surety Bonds
23. Prior to the Petition Date, in the ordinary course of business, Atlantic Specialty Insurance Company (“ASIC”) and Liberty Mutual Insurance Company (“Liberty”) (ASIC and Liberty each, a “Surety” and collectively, “Sureties”) issued surety bonds on behalf of certain of the Debtors (collectively, the “Surety Bonds” and each, individually, a “Surety Bond”). Prior to the Petition Date, in the ordinary course of their business, certain of the Debtors (collectively, the “Indemnitors”) executed certain indemnity agreements and/or related agreements, including, without limitation, agreements regarding collateral, with each Surety (collectively, the “Surety Bond Agreements” and, each, a “Surety Bond Agreement”).
24. Treatment of Surety Bond Agreements. Notwithstanding any other provisions of the Prepackaged Plan and the Confirmation Order on the Effective Date, any rights, claims and obligations, including, without limitation, trust and/or subrogation rights, arising under (i) the Surety Bonds; (ii) the contracts that are subjects of the Surety Bonds (the “Bonded Contracts”); (iii) the Surety Bond Agreements, and (iv) any collateral of a Surety under a Surety Bond Agreement (the “Surety Collateral”) shall be deemed assumed, reaffirmed and ratified and vested
19
and performed by the applicable Reorganized Debtors, shall survive and continue in full force and effect, and the rights, claims and obligations thereunder, including, without limitation, trust and/or subrogation rights and rights in any Surety Collateral, shall not be altered, modified, discharged, enjoined, impaired or released under the Prepackaged Plan and/or by entry of the Confirmation Order. For the avoidance of doubt, nothing in the Prepackaged Plan or Confirmation Order shall bar, alter, limit, impair, release, modify or enjoin any rights, claims, and obligations, including, without limitation, trust and/or subrogation rights in respect of the Surety Bonds and/or the Surety Bond Agreements, with respect to any claim by third parties and/or a Surety’s rights under the Surety Bond Agreements or applicable law. Article VI.K.1 of the Prepackaged Plan shall not apply to any Claim to which a Surety may be subrogated pursuant to the Surety Bonds. Without the requirement of any action by the Surety, the Surety is deemed to have opted out of the third-party release provisions of the Prepackaged Plan. For the avoidance of doubt, the Surety is not a Releasing Party under the Prepackaged Plan. Solely to the extent any of the Surety Bond Agreements are deemed to be one or more executory contracts any such agreements are deemed assumed by the applicable Reorganized Debtor pursuant to section 365 of the Bankruptcy Code effective as of the Effective Date with the consent of the Surety. If on and after the Effective Date any one of the Surety Bond Agreements cease to be in effect solely as a result of a determination by a court of competent jurisdiction that such agreements are non-assumable under applicable bankruptcy law, any such Surety Bond Agreements shall be deemed reinstated or ratified on the terms of such Surety Bond Agreement that existed immediately prior to the Effective Date and the Reorganized will execute such documents as may be necessary to effect the reinstatement of such Surety Bond Agreement on such terms that existed immediately prior to the Effective Date. The entry of this Confirmation Order shall not impair the Surety’s rights against any non-Debtor, or
20
any non-Debtor’s rights against the Surety, including under any Surety Bond Agreement. The rights and claims of the Surety are unimpaired in accordance with section 1124(1) of the Bankruptcy Code. Notwithstanding any other provision of the Prepackaged Plan or the Confirmation Order, any Surety Collateral shall remain in place to secure any obligations under any Surety Bond Agreements in accordance with the terms of such agreements.
H. Delaware Class Action Plaintiffs
25. Prior to the Petition Date, Mariano Siseles and Zalmon Uvaydov (the “Delaware Class Action Plaintiffs”) filed a class action complaint against CF Finance Holdings II LLC and certain affiliates of Cantor Fitzgerald L.P. (collectively, all of the defendants in the proceeding, the “Delaware Class Action Defendants”) in the Court of Chancery of the State of Delaware, Case No. 2023-1152-JTL (the “Delaware Class Action”). Notwithstanding anything to the contrary in the Prepackaged Plan or this Confirmation Order, any claims or causes of action arising from the Delaware Class Action (or claims or causes of action that the Delaware Class Action Plaintiffs could have brought in connection with the Delaware Class Action for themselves and/or on behalf of the putative class of shareholders that they seek to represent in the Delaware Class Action) against the Delaware Class Action Defendants shall be fully and finally released, enjoined, and discharged pursuant to Article VIII of the Prepackaged Plan and the Delaware Class Action Plaintiffs shall not be entitled to any recovery from the Delaware Class Action Defendants, or the Released Parties or any of their Related Parties; provided, however, that, notwithstanding that the Delaware Class Action Plaintiffs are Releasing Parties under the Prepackaged Plan, such release, injunction, and discharge of any claims or causes of action arising in the Delaware Class Action against the Delaware Class Action Defendants by the Delaware Class Action Plaintiffs (for themselves and on behalf of the putative class of shareholders that they seek to represent in the
21
Delaware Class Action) will not have the effect of prohibiting the continuation of the Delaware Class Action against the Delaware Class Action Defendants up to and through the entry of a judgment or settlement in the Delaware Class Action against the Delaware Class Action Defendants, provided further, however, that the entry of a judgment or settlement in the Delaware Class Action against the Delaware Class Action Defendants, shall be for the sole purpose of (and limited to) seeking and obtaining a recovery up to the amount of proceeds, if any, actually received under any available and applicable insurance policies of the Debtors4 (including, for the avoidance of doubt, any defense costs, professional fees, or other disbursements payable from insurance). For the avoidance of doubt, the foregoing subparagraph shall not limit the availability of coverage under any applicable insurance policies of the Debtors and the Debtors will use commercially reasonable efforts to maintain the availability of such insurance (provided, however, that under no circumstance shall the Reorganized Debtors or the Delaware Class Action Defendants be required to incur out-of-pocket costs or expenses to fulfill such obligation); provided, however, that in the event coverage under any available and applicable insurance policies is denied, to the fullest extent permitted by law, the Reorganized Debtors shall assign any claims for coverage or other rights of recovery they may have against its applicable insurance carrier to the Delaware Class Action Plaintiffs. Except as modified herein, the Delaware Class Action Plaintiffs and each of the Delaware Class Action Defendants shall retain all of their available rights, claims, and defenses
| 4 | For the avoidance of doubt, the applicable insurance policies, including the policy number and insurance carrier, are: (i) 4325400 (Ironshore Specialty Insurance Company); (ii) G71786663 001 (Westchester Fire Insurance Company); (iii) P-001-000312824-01 (AXIS Insurance Company); (iv) V2A68A200101 (Beazley Insurance Company, Inc.); (v) U70371200ASP (StarStone Specialty Insurance Company); (vi) DOP30001931000 (Endurance American Insurance Company); (vii) CL 80 20 03 04 (XL Specialty Insurance Company); (viii) 8261-5433 (Federal Insurance Company); (ix) V2E317210101 (Beazley Insurance Company, Inc.); (x) SC5EX00573-211 (Everest National Insurance Company); (xi) DOX1000352-00 (Arch Specialty Insurance Company); (xii) ELU173694-21 (XL Specialty Insurance Company); and (xiii) DO6NAB7VNF001 (Ironshore Specialty Insurance Company). |
22
available under applicable law in connection with the Delaware Class Action. For the avoidance of doubt, other than as set forth in this paragraph 25, no Entity (including the Delaware Class Action Plaintiffs or any other beneficiary of the Delaware Class Action) shall commence an action or otherwise seek payment of a claim against the Delaware Class Action Defendants, Released Parties, or Related Parties based on any of the facts and circumstances giving rise to the Delaware Class Action. Nothing in the Prepackaged Plan or this Confirmation Order limits, expands, or affects any obligations under applicable law of the Debtors or the Delaware Class Action Defendants to preserve the Delaware Class Action Defendants’ books, records, documents, files, electronic data (in whatever format, including native format), or any tangible object potentially relevant to the Delaware Class Action.
I. The United States
26. Notwithstanding any provision in the Prepackaged Plan, the Plan Supplement, the Definitive Documents, this Confirmation Order or other related Plan Documents: Nothing discharges or releases the Debtors, the Reorganized Debtors, or any non-debtor from any right, claim, liability, defense or Cause of Action of the United States or the States of California or Mississippi or impairs the ability of the United States or the States of California or Mississippi to pursue any right, claim, liability, defense, or Cause of Action against any Debtor, Reorganized Debtor or non-debtor. Contracts, purchase orders, agreements, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests of or with the United States or the States of California or Mississippi shall be, subject to any applicable legal or equitable rights or defenses of the Debtors, Reorganized Debtors, or non-debtors under applicable non-bankruptcy law, paid, treated, determined and administered in the ordinary course of business as if the Debtors’ bankruptcy cases were never filed and the Debtors, Reorganized Debtors, and non-debtors shall
23
comply with all applicable non-bankruptcy law. All rights, claims, liabilities, defenses or Causes of Action, of or to the United States or the States of California or Mississippi shall survive the Chapter 11 Cases as if they had not been commenced and be determined in the ordinary course of business, including in the manner and by the administrative or judicial tribunals in which such rights, claims, liabilities, defenses or Causes of Action would have been resolved or adjudicated if the Chapter 11 Cases had not been commenced; provided, that nothing in the Prepackaged Plan, the Plan Supplement, the Definitive Documents, this Confirmation Order or other related Plan Documents shall alter any legal or equitable rights or defenses of the Debtors, the Reorganized Debtors, or non-debtors under non-bankruptcy law with respect to any such claim, liability, or Cause of Action. Without limiting the foregoing, for the avoidance of doubt, nothing shall: (i) require the United States or the States of California or Mississippi to file any proofs of claim or administrative expense claims in the Chapter 11 Cases for any right, claim, liability, defense, or Cause of Action; (ii) affect or impair the exercise of the United States’ or the States of California or Mississippi’s police and regulatory powers against the Debtors, the Reorganized Debtors or any non-debtor; (iii) be interpreted to set cure amounts or to require the United States or any State to novate or otherwise consent to the transfer of any federal or state contracts, purchase orders, agreements, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests; (iv) affect or impair the United States’ or the States of California or Mississippi’s rights and defenses of setoff and recoupment, or ability to assert setoff or recoupment against the Debtors, the Reorganized Debtors, or non-debtors and such rights and defenses are expressly preserved; (v) constitute an approval or consent by the United States or any State without compliance with all applicable legal requirements and approvals under non-bankruptcy law, or (vi) relieve any party from compliance with all licenses and permits issued by governmental units in accordance with non-bankruptcy law.
24
J. QPP LLC
27. For the avoidance of doubt, the Master Purchase Order Agreement dated February 4, 2019 executed by View, Inc., for manufacture and supply materials with respect to the Queens Plaza Residential Tower, a/k/a Queens Plaza Park sometimes referred to as “Sven” (the “Building”), along with the written warranty in connection therewith provided by View, Inc., for the benefit of QPP LLC c/o The Durst Organization Inc. (“QPP”) (the Master Purchase Order Agreement together with the warranty, collectively, the “Agreement”) is an assumed Executory Contract under Article V.A of the Prepackaged Plan. QPP asserts that it is entitled to a cure payment of $340,000 (such amount, the “QPP Asserted Cure Amount”) in connection with the assumption of the Agreement for defects in certain insulating glass units. QPP reserves its rights regarding additional amounts that may be owed to it to the extent any additional defects are discovered, and the Debtors and/or Reorganized Debtors reserve their rights to oppose any additional amounts. Notwithstanding anything herein or the Prepackaged Plan to the contrary, the Debtors and/or Reorganized Debtors and QPP agree that the Reorganized Debtors shall have forty-five (45) days following the Effective Date to file an objection to the QPP Asserted Cure Amount (or, in the case of any additional amounts asserted by QPP, forty-five (45) days following such assertion by QPP), which deadline may be extended by agreement of the parties.
25
K. Jefferson Fields, LLC
28. Creditor Jefferson Fields, LLC (“Jefferson Fields”) asserts that it holds a bifurcated claim against the Debtors following the rejection of its real property lease effective as of the Petition Date (such claim, collectively and together with all other claims asserted by Jefferson Fields against the Debtors, the “Jefferson Claim”). The Jefferson Claim will be subject to the limitations pursuant to and as limited by 11 U.S.C. § 502(b)(6). Jefferson Fields argues that $636,865.68 of the Jefferson Claim is secured based on a pre-petition pre-judgment attachment lien with funds (the “Collateral Funds”) currently held in the custody of the Santa Clara County Sheriff (“Sheriff”) in connection with the pre-petition civil matter styled as Jefferson Fields, LLC v. View, Inc., Case No. 23CV421509 now pending in the Santa Clara County Superior Court. Jefferson Fields asserts that it is a Holder of a Class 1 Other Secured Claim under the Prepackaged Plan. Jefferson Fields further argues that any Allowed Claim amount in favor of Jefferson Fields in excess of the Collateral Funds should be treated as a Class 6 General Unsecured Claim under the Prepackaged Plan.
29. Notwithstanding anything herein or the Prepackaged Plan to the contrary, the Debtors and/or Reorganized Debtors and Jefferson Fields agree that, following the filing of a proof of claim by Jefferson Fields, the Reorganized Debtors shall have forty-five (45) days following the later of (i) the filing of the proof of claim and (ii) the Effective Date of the Prepackaged Plan to file an objection to Jefferson Fields’s proof of claim with the Bankruptcy Court. If (a) the Reorganized Debtors do not object to the proof of claim of Jefferson Fields within such time then the Claim shall be deemed Allowed, or (b) the Reorganized Debtors agree that to the extent of the Collateral Funds, the Allowed Claim should be treated as a Class 1 Other Secured Claim under the Prepackaged Plan, with any Allowed Claim in excess of the Collateral Funds treated as a Class 6 General Unsecured Claim under the Prepackaged Plan, or (c) any objection to the proof of claim is overruled or the total of the Allowed Claim is for an amount equal to or in excess of the Collateral Funds, then the Reorganized Debtors shall cooperate with counsel for Jefferson Fields to promptly execute a stipulation and proposed form of order to be filed and entered by the Santa Clara County
26
Superior Court approving the release of the Collateral Funds in the asserted amount by the Sheriff to Jefferson Fields (or to counsel for Jefferson Fields if so directed); provided that any Collateral Funds so released shall reduce dollar-for-dollar the amount of the Jefferson Claim. All other rights of the Debtors, Reorganized Debtors, and Jefferson Fields as modified by the Prepackaged Plan are otherwise retained by the respective parties.
L. Mehedi Action Plaintiffs
30. Notwithstanding anything to the contrary in the Prepackaged Plan, the Disclosure Statement, the Solicitation Procedures Order, this Confirmation Order, the Plan Supplement, the Definitive Documents, or any other related Plan Document, nothing in any of such documents (including, for the avoidance of doubt, Article VIII.C, Article VIII.D, and Article VIII.F of the Prepackaged Plan), shall be construed to release, enjoin, discharge, or settle (a) any action by the Mehedi Action Plaintiffs, or (b) any claim, interest, or cause of action asserted by the Mehedi Action Plaintiffs, in each of the foregoing cases (a) and (b), solely to the extent asserted against any non-Debtor defendant (or Debtor View, Inc., limited to and solely to the extent of available insurance) in the Mehedi Action.
M. Vidul Prakash
31. Notwithstanding anything to the contrary in the Plan Documents or this Confirmation Order, on the Effective Date, that certain Offer Letter dated February 22, 2019, by and between View, Inc. and Mr. Vidul Prakash (the “Prakash Offer Letter”); the Employment Agreement dated March 18, 2019 by and between View, Inc. and Mr. Prakash (the “Prakash Employment Agreement”); that certain At-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement (the “Prakash Confidentiality Agreement”) and any other Executory Contract listed on the Debtors’ Schedule of Rejected Contracts, and collectively with
27
the Prakash Offer Letter, the Prakash Employment Agreement, and the Prakash Confidentiality Agreement, the “Prakash Agreements”) shall be deemed rejected in accordance with sections 365 and 1123 of the Bankruptcy Code to the extent that the Prakash Agreements have not already terminated in accordance with their terms; provided that notwithstanding anything in the Plan Documents or this Confirmation Order to the contrary, Mr. Prakash may timely file a proof of Claim arising from the rejection of the Prakash Agreements (the “Prakash Rejection Claims”) at any time up to the later of forty-five (45) days from the later of (i) the Effective Date, (ii) the addition of any Prakash Agreement to the Schedule or Rejected Contracts, or (iii) the entry of Final Orders with respect to the disposition as to Mr. Prakash of those certain proceedings titled Mehedi et al. v. View, Inc. et al., N.D. Cal. Case No. 21-cv-06374, Securities and Exchange Commission v. Prakash, N.D. Cal. Case No. 3:23-cv-03300, In re View, Inc. Derivative Litigation, C.A. No. 21-1719, and Roberts v. Mulpuri, et al. (No. 5:23-cv-02248, N.D. Cal.) (collectively, the “Actions”). Subject to the following paragraph, the Prakash Rejection Claims shall not be expunged solely by operation of Article VII of the Prepackaged Plan.
32. For the avoidance of doubt, any Claims of Mr. Prakash arising under any indemnification obligation of the Debtors that is being assumed pursuant to Article IV.R. of the Prepackaged Plan (whether in the by-laws, certificates of incorporation or formation, limited liability company agreements, other organizational documents, board resolutions, indemnification agreements, employment contracts, engagement letters, or otherwise) (collectively, the “Prakash Indemnity Claims”), including based on fees and expenses of Morrison & Foerster LLP, Nassiri & Jung LLP, Covington & Burling LLP, Alioto Legal, incurred in connection with his role as a former officer of the Debtors, regardless of whether such amounts accrued prepetition, postpetition, or following the Effective Date, shall not be discharged, impaired, released, or
28
enjoined by virtue of this Order or the Prepackaged Plan; provided however that with respect to both the Prakash Rejection Claims and the Prakash Indemnity Claims, the Debtors and/or Reorganized Debtors reserve all rights under section 502(e)(1)(B) of the Bankruptcy Code, to the extent applicable, and any other applicable bankruptcy and non-bankruptcy law that may provide for the disallowance of any Prakash Rejection Claim and the Prakash Indemnity Claim or provide that the Debtors or Reorganized Debtors do not have any liability on account of the Prakash Rejection Claim and the Prakash Indemnity Claim; provided further that nothing herein shall prejudice or limit the right of any party in interest, including without limitation, any of the Debtors or the Reorganized Debtors, to challenge or defend the reasonableness of any Prakash Rejection Claim and the Prakash Indemnity Claim to the extent permitted by contract or applicable law and/or assert any other rights and claims that such party in interest may have with respect to the Prakash Rejection Claim and the Prakash Indemnity Claim. Mr. Prakash, the Debtors, and the Reorganized Debtors shall retain all rights, claims, causes of action, defenses, and remedies with respect to the Prakash Rejection Claim and the Prakash Indemnity Claim.
N. Miscellaneous
33. The Challenge Period (as defined in the Final DIP Order) termination date shall be deemed to have occurred effective upon entry of this Confirmation Order.
34. Notwithstanding Bankruptcy Rules 3020(e), 6004(h), 6006(d), and 7062, the terms and conditions of this Confirmation Order will be effective and enforceable immediately upon its entry and shall not be stayed. This Confirmation Order is a final order and the period in which an appeal must be filed shall commence upon the entry hereof. The Prepackaged Plan shall be deemed a valid motion to approve the foregoing.
29
35. Except as otherwise provided in the Prepackaged Plan and Plan Documents, all property of the Estates of the Debtors, and any property acquired by the Debtors or Reorganized Debtors under the Prepackaged Plan, will vest in the Reorganized Debtors as of the Effective Date, free and clear of all Claims, liens, charges, other encumbrances, Interests, and other interests.
36. The Debtors are authorized to consummate the Prepackaged Plan at any time after the entry of this Confirmation Order, subject to the satisfaction or waiver of the conditions precedent to the Effective Date, and all parties in interest shall be entitled to rely upon this Confirmation Order in taking any actions or performing any obligations to consummate the Prepackaged Plan. Upon consummation of the transactions contemplated by the Prepackaged Plan, the Debtors shall continue without dissolution.
37. The failure to include specifically any particular provision of the Prepackaged Plan in this Confirmation Order will not diminish the effectiveness of such provision nor constitute a waiver thereof, it being the intent that the Prepackaged Plan is confirmed in its entirety.
38. The provisions of the Prepackaged Plan and this Confirmation Order, including any findings of fact and conclusions of law set forth in this Confirmation Order, are non-severable and mutually dependent.
39. Except as otherwise may be provided in the Prepackaged Plan or herein, notice of all subsequent pleadings in these cases after the Effective Date shall be limited to: (i) the Notice Parties; (ii) any party known to be directly affected by the relief sought; and (iii) any party entitled to service as a matter of due process.
40. This Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Confirmation Order and all matters arising in and under, and related to, these Chapter 11 Cases, as set forth in Article XI of the Prepackaged Plan, or pursuant to section 1142 of the Bankruptcy Code.
30
Exhibit A
Prepackaged Plan
Exhibit 99.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| In re:
VIEW, INC., et al.,
Debtors.1 |
Chapter 11
Case No. 24-10692 (CTG)
(Jointly Administered) | |
NOTICE OF (I) ENTRY OF AN ORDER APPROVING DISCLOSURE
STATEMENT AND CONFIRMING SECOND AMENDED JOINT
PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION
OF VIEW, INC., AND ITS DEBTOR AFFILIATES AND
(II) OCCURRENCE OF THE EFFECTIVE DATE
PLEASE TAKE NOTICE that on May 20, 2024, the United States Bankruptcy Court for the District of Delaware (the “Court”) entered the Order (I) Approving Disclosure Statement and (II) Confirming Second Amended Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc., and Its Debtor Affiliates [Docket No. 201] (the “Confirmation Order”) (i) approving, on a final basis, the Disclosure Statement for the Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc., and Its Debtor Affiliates [Docket No. 16] (as amended, supplemented or otherwise modified, the “Disclosure Statement”) and (ii) confirming the Second Amended Joint Prepackaged Chapter 11 Plan of Reorganization of View, Inc., and Its Debtor Affiliates [Docket No. 190] (as may be amended, supplemented or otherwise modified, the “Prepackaged Plan”).2
PLEASE TAKE FURTHER NOTICE that the Prepackaged Plan has been substantially consummated and the Effective Date of the Prepackaged Plan occurred on May 22, 2024.
PLEASE TAKE FURTHER NOTICE that the terms of the Prepackaged Plan and the provisions thereof are immediately effective and enforceable and deemed binding on the Debtors, the Reorganized Debtors, any holder of a Claim against, or Interest in, any of the Debtors and such holder’s respective successors and assigns, whether or not such Claim or Interest is Impaired under the Prepackaged Plan and whether or not such holder voted to accept or reject the Prepackaged Plan.
PLEASE TAKE FURTHER NOTICE that the Court has approved the discharge, release, exculpation, injunction, and related provisions in Article VIII of the Prepackaged Plan.
| 1 | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: View, Inc. (5065), View Operating Corporation (4899), and Iotium, Inc. (4600). The Debtors’ corporate headquarters is 6280 America Center Drive, Suite 200, San Jose, CA 95002. |
| 2 | Capitalized terms used in this notice but not otherwise defined shall have the same meaning as in the Prepackaged Plan. |
PLEASE TAKE FURTHER NOTICE that, pursuant to Article II.C of the Prepackaged Plan, the deadline for filing requests for payment of Professional Fee Claims shall be thirty (30) days after the Effective Date.
PLEASE TAKE FURTHER NOTICE that, pursuant to Article V.A of the Prepackaged Plan and the Confirmation Order, on the Effective Date, all Executory Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that are: (a) identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (b) previously expired or terminated pursuant to their own terms; (c) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (d) are the subject of a motion to reject that is pending on the Effective Date; or (e) have an ordered or requested effective date of rejection that is after the Effective Date; provided that notwithstanding anything to the contrary herein, in the Prepackaged Plan, or in the Confirmation Order, the Debtors or Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to forty-five (45) days after the Effective Date, so long as such allocation, amendment, modification, or supplement is consistent with the Restructuring Support Agreement.
PLEASE TAKE FURTHER NOTICE that, pursuant to Article IV.B.8 of the Prepackaged Plan, on the Effective Date, Existing Equity Interests (including all Subordinated Interests) have been cancelled, released, and extinguished and will be of no further force and effect and shall receive no recovery under the Prepackaged Plan.
PLEASE TAKE FURTHER NOTICE that the Prepackaged Plan and the Confirmation Order contain other provisions that may affect your rights. You are encouraged to review the Prepackaged Plan and Confirmation Order in their entirety.
PLEASE TAKE FURTHER NOTICE that the Disclosure Statement, Prepackaged Plan, and Confirmation Order may be viewed for free at Kroll’s website at https://cases.ra.kroll.com/View or for a fee on the Bankruptcy Court’s website at http://www.deb.uscourts.gov.
[Remainder of Page Intentionally Left Blank]
2
| Dated: May 22, 2024 |
COLE SCHOTZ P.C. | |||||
| Wilmington, Delaware |
/s/ Michael E. Fitzpatrick | |||||
| Patrick J. Reilley (No. 4451) Stacy L. Newman (No. 5044) Michael E. Fitzpatrick (No. 6797) 500 Delaware Avenue, Suite 1410 Wilmington, DE 19801 Telephone: (302) 652-3131 Facsimile: (302) 652-3117 preilley@coleschotz.com snewman@coleschotz.com mfitzpatrick@coleschotz.com
-and-
Michael D. Sirota (admitted pro hac vice) David M. Bass (admitted pro hac vice) Daniel J. Harris (admitted pro hac vice) Matteo Percontino (admitted pro hac vice) Court Plaza North 25 Main Street Hackensack, NJ 07601 Telephone: (201) 489-3000 Facsimile: (201) 489-1536 msirota@coleschotz.com dbass@coleschotz.com dharris@coleschotz.com mpercontino@coleschotz.com
-and-
Bryant P. Churbuck (admitted pro hac vice) 1325 Avenue of the Americas, 19th Floor New York, NY 10019 Telephone: (212) 752-8000 Facsimile: (212) 752-8393 bchurbuck@coleschotz.com
Counsel for Debtors and | ||||||
3