Amended and Restated Backstop Commitment Agreement, dated February 21, 2023, by and among the Company and the Equity Commitment Parties

THIS AMENDED AND RESTATED BACKSTOP COMMITMENT AGREEMENT (this “Agreement”), dated as of February 21, 2023, is made by and among (i) Revlon, Inc. (including as debtor in possession and as reorganized pursuant to the First Amended Plan, as applicable, “Holdings”), Revlon Consumer Products Corporation (“RCPC”), and their directly- and indirectly-owned subsidiaries listed on Schedule 1 (each, a “Debtor” and, collectively with Holdings and RCPC, the “Debtors”), on the one hand, and (ii) each of the Equity Commitment Parties, on the other hand. Each Debtor and each Equity Commitment Party is referred to herein, individually, as a “Party” and, collectively, as the “Parties.”

WHEREAS, on June 15, 2022, (the “Petition Date”), each of the Debtors filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (as amended from time to time, the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”), initiating their respective cases (collectively, the “Chapter 11 Cases”), which are jointly administered and pending before the Bankruptcy Court;

WHEREAS, certain of the Parties entered into the Restructuring Support Agreement, dated as of December 19, 2022, by and among (i) the Debtors, (ii) the Consenting BrandCo Lenders, and (iii) the Creditors’ Committee, which provided for the restructuring of the Debtors’ capital structure and financial obligations pursuant to the terms set forth therein;

WHEREAS, in connection with the Chapter 11 Cases, the Debtors have engaged in good faith, arm’s-length negotiations with certain parties in interest regarding the terms of the First Amended Plan;

WHEREAS, certain of the Parties entered into that certain Backstop Commitment Agreement, dated as of January 17, 2023, by and among (i) the Debtors and (ii) certain of the Consenting BrandCo Lenders (including all exhibits, annexes, and schedules thereto) (the “Original Backstop Commitment Agreement”);

WHEREAS, subject to entry of the Backstop Order, pursuant to the First Amended Plan and this Agreement, Holdings will conduct a rights offering in accordance with the Equity Rights Offering Procedures, whereby it shall (x) distribute Subscription Rights to purchase the Subscription Shares and (y) offer for purchase to the Equity Commitment Parties the Direct Allocation Shares, for an aggregate purchase price of $670 million (the “Aggregate Rights Offering Amount”) (or, if applicable, the Adjusted Aggregate Rights Offering Amount, which amount shall represent a reduction of the Aggregate Rights Offering Amount on account of Excess Liquidity in accordance with the First Lien Exit Facilities Term Sheet), at a purchase price per Rights Offering Share calculated at a 30% discount to Plan Equity Value (the “Purchase Price”) (the foregoing collectively, the “Equity Rights Offering”);

WHEREAS, subject to the terms and conditions contained in this Agreement, each Equity Commitment Party has agreed (on a several and not joint basis) to fully exercise (x) all Subscription Rights and (y) Direct Allocation Rights issued to it;

WHEREAS, subject to the terms and conditions contained in this Agreement, Holdings has agreed to sell to each Equity Commitment Party, and each Equity Commitment Party has agreed to purchase (on a several and not joint basis), its Backstop Commitment Percentage of the Unsubscribed Shares, if any;

WHEREAS, as consideration for their respective Funding Commitments, the Debtors have agreed, subject to the terms, conditions and limitations set forth herein, to pay the Equity Commitment Parties the Backstop Commitment Premium (or in the alternative, the Backstop Commitment Termination Premium (if applicable)) and the Expense Reimbursement, and provide the indemnification on the terms set forth herein;

WHEREAS, Section 6.2 and Section 11.7 of the Original Backstop Commitment Agreement provide that the Original Backstop Commitment Agreement may be amended, restated, modified, or changed in accordance with its terms and subject to the consent rights set forth therein; and

WHEREAS, pursuant to Section 6.2 and Section 11.7 of the Original Backstop Commitment Agreement, the Parties desire to amend, restate and replace in its entirety the Original Backstop Commitment Agreement with this Agreement, effective as of the date of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, agreements, representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Parties hereby agrees as follows:

“2016 Term Loan Lender Group Advisors” has the meaning set forth in the First Amended Plan.

“2020 Term B-1 Loan Claim” has the meaning set forth in the First Amended Plan.

“2020 Term B-2 Loan Claim” has the meaning set forth in the First Amended Plan.

“ABL DIP Facility Credit Agreement” has the meaning set forth in the First Amended Plan.

“Ad Hoc Group of 2016 Term Loan Lenders” has the meaning set forth in the First Amended Plan.

“Ad Hoc Group of BrandCo Lenders” has the meaning set forth in the First Amended Plan.

“Adjusted Aggregate Rights Offering Amount” has the meaning set forth in the First Amended Plan.

“Administrative Claim” has the meaning set forth in the First Amended Plan.

“Adversary Proceeding” means the adversary proceeding captioned AIMCO CLO 10 LTD, et al. v. Revlon, Incl., et al., Adv. Pro. No. 22-01167 (DSJ) (Bankr. S.D.N.Y. Oct. 31, 2022).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made (including any Related Funds of such Person); provided that for purposes of this Agreement, no Equity Commitment Party shall be deemed an Affiliate of the Debtors or any of their Subsidiaries. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by Contract or otherwise.

“Aggregate Rights Offering Amount” has the meaning set forth in the Recitals.

“Agreement” has the meaning set forth in the Preamble.

“Allowed” has the meaning set forth in the First Amended Plan.

“Alternative Restructuring Counterproposal Notice” has the meaning set forth in Section 7.1.

“Alternative Restructuring Proposal” has the meaning set forth in the First Amended Plan.

“Anti-Corruption Law” means the United States Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any applicable law or regulation implementing the OECD Convention on Combatting Bribery of Foreign Public Officials.

“Antitrust Approvals” means any notification, authorization, approval, consent, filing, application, nonobjection, expiration or termination of applicable waiting period (including any extension thereof), exemption, determination of lack of jurisdiction, waiver, variance, filing, permission, qualification, registration or notification required or, if agreed between the Debtors and the Required Equity Commitment Parties (in each case, acting reasonably) advisable, under any Antitrust Laws.

“Antitrust Authorities” means the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the attorneys general of the several states of the United States and any other Governmental Authority having jurisdiction pursuant to the Antitrust Laws, and “Antitrust Authority” means any one of them.

“Antitrust Laws” mean the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, each, as amended, and any other Law governing agreements in restraint of trade, monopolization, pre-merger notification, the lessening of competition through merger or acquisition or anti-competitive conduct, and any foreign investment Laws.

“Applicable Consent” has the meaning set forth in Section 4.8.

“Available Shares” means, collectively, the (x) Unsubscribed Shares and (y) Direct Allocation Shares that any Equity Commitment Party fails to purchase in accordance with the terms of this Agreement.

“Backstop Amount” has the meaning set forth in Section 2.4(a)(v).

“Backstop Commitment” has the meaning set forth in Section 2.2(b).

“Backstop Commitment Percentage” means, with respect to any Equity Commitment Party, such Equity Commitment Party’s percentage of the Backstop Commitment as set forth opposite such Equity Commitment Party’s name under the column titled “Backstop Commitment Percentage” on Schedule 2.1 or Schedule 2.2 (as such schedule may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement), as applicable. Any reference to “Backstop Commitment Percentage” in this Agreement means the Backstop Commitment Percentage in effect at the time of the relevant determination.

“Backstop Commitment Premium” has the meaning set forth in Section 3.1.

“Backstop Commitment Premium Share Amount” means, with respect to an Equity Commitment Party, the number of shares of New Common Stock equal to the product of (i) such Equity Commitment Party’s Backstop Commitment Percentage and (ii) the number of shares of New Common Stock issued on account of the Backstop Commitment Premium pursuant to Section 3.2 hereof.

“Backstop Commitment Termination Premium” means a nonrefundable aggregate premium in an amount equal to 100% of the dollar value of the Backstop Commitment Premium.

“Backstop Order” means the order entered by the Bankruptcy Court approving and authorizing the Debtors’ entry into this Agreement and the other Equity Rights Offering Documents, including the Debtors’ obligation to pay the Backstop Commitment Premium, or in the alternative, the Backstop Commitment Termination Premium, which shall be in form and substance acceptable to the Debtors and the Required Equity Commitment Parties.

“Bankruptcy Code” has the meaning set forth in the Recitals.

“Bankruptcy Court” has the meaning set forth in the Recitals.

“Bankruptcy Rules” has the meaning set forth in the First Amended Plan.

“BrandCo Lender Equity Commitment Party” means each Equity Commitment Party under this Agreement identified on Schedule 2.1.

“Breach Notice” has the meaning set forth in the First Amended Plan.

“Business Day” has the meaning set forth in the First Amended Plan.

“Bylaws” means the amended and restated bylaws of Holdings as of the Closing Date, which shall be consistent with the terms set forth in the RSA and otherwise be in form and substance satisfactory to the Required Equity Commitment Parties.

“Canadian Defined Benefit Pension Plan” means a Canadian Pension Plan which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada).

“Canadian Pension Plans” means (i) a “registered pension plan,” as that term is defined in subsection 248(1) of the Income Tax Act (Canada), or (ii) a pension plan under other Canadian applicable law, in each case which is or was sponsored, administered or contributed to, or required to be contributed to by, any Debtor or under which any Debtor has any actual or potential liability.

“Cash” has the meaning set forth in the First Amended Plan.

“Certificate of Incorporation” means the amended and restated certificate of incorporation of Holdings as of the Closing Date, which shall be consistent with the terms set forth in the RSA and otherwise be in form and substance satisfactory to the Required Equity Commitment Parties.

“Chapter 11 Cases” has the meaning set forth in the Recitals.

“Claim” has the meaning set forth in the First Amended Plan.

“Closing” has the meaning set forth in Section 2.5(a).

“Closing Date” has the meaning set forth in Section 2.5(a).

“Company Disclosure Schedules” means the disclosure schedules delivered by the Debtors to the Equity Commitment Parties on the date of this Agreement.

“Company Plan” means any employee benefit plan, as defined in Section 3(3) of ERISA and in respect of which any Debtor or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA or has any liability, including a Multiemployer Plan.

“Company SEC Documents” has the meaning set forth in Section 4.11.

“Complete Business Day” means on any Business Day, the time from 12:00 a.m. to 11:59 p.m. (inclusive) on such Business Day.

“Confirmation Order” has the meaning set forth in the First Amended Plan, which shall also be in form and substance acceptable to the Required Equity Commitment Parties and the Debtors.

“Consenting 2016 Lenders” has the meaning set forth in the RSA.

  “Consenting BrandCo Lenders” has the meaning set forth in the RSA.

“Consummation” has the meaning set forth in the First Amended Plan.

“Contract” means any legally binding agreement, contract or instrument, including any loan, note, bond, mortgage, indenture, guarantee, deed of trust, license, franchise, commitment, lease, franchise agreement, letter of intent, memorandum of understanding or other obligation, and any amendments thereto, whether written or oral, but excluding the First Amended Plan.

“Contracted Related Parties” means any Related Party that is a party to this Agreement or the RSA.

“Creditors’ Committee” has the meaning set forth in the First Amended Plan.

“Debtor” has the meaning set forth in the Preamble.

“Defaulting Equity Commitment Party” means in respect of an Equity Commitment Party Default that is continuing, the applicable defaulting Equity Commitment Party.

“Defined Period” means a period beginning on January 1, 2018.

“Definitive Documents” has the meaning set forth in the First Amended Plan.

“DIP Credit Agreement” means any of the Term DIP Facility Credit Agreement and the ABL DIP Facility Credit Agreement, as applicable.

“Direct Allocation Amount” has the meaning set forth in Section 2.4(a)(iii).

“Direct Allocation Commitment” has the meaning set forth in Section 2.2(c).

“Direct Allocation Percentages” means, with respect to any Equity Commitment Party, such Equity Commitment Party’s percentage of the Direct Allocation Commitment as set forth opposite such Equity Commitment Party’s name under the column titled “Direct Allocation Percentage” on Schedule 2.1 or Schedule 2.2 (as such schedule may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement), as applicable. Any reference to “Direct Allocation Percentage” in this Agreement means the Direct Allocation Percentage in effect at the time of the relevant determination.

“Direct Allocation Right” has the meaning set forth in Section 2.1.

“Direct Allocation Shares” means the New Common Stock issued in connection with the Direct Allocation Right.

“Disclosure Statement” has the meaning set forth in the First Amended Plan, which shall also be in form and substance reasonably acceptable to the Required Equity Commitment Parties and the Debtors.

“Disclosure Statement Order” has the meaning set forth in the First Amended Plan, which shall also be in form and substance acceptable to the Required Equity Commitment Parties and the Debtors.

“Effective Date” has the meaning set forth in the First Amended Plan.

“Entity” has the meaning set forth in the First Amended Plan.

“Environmental Laws” means all applicable laws (including common law), rules, regulations, codes, ordinances, orders in council, Orders, decrees, treaties, directives, judgments or legally binding agreements promulgated or entered into by or with any Governmental Unit, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, transportation, storage, use, Release or threatened Release of, or exposure to, any Hazardous Material or to health and safety matters.

“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise, resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials or (d) the Release or threatened Release of any Hazardous Materials.

“Equity Commitment Party” means each Entity that holds a Funding Commitment pursuant to this Agreement, including without limitation, any holder of a Funding Commitment that is a Related Purchaser, Existing Commitment Party Purchaser or a New Purchaser that has joined this Agreement pursuant to a joinder or amendment entered into pursuant to Section 2.6(b), Section 2.6(c), or Section 2.6(d), respectively.

“Equity Commitment Party Default” means a breach of this Agreement arising if any Equity Commitment Party (x) fails to (i) fully exercise its Subscription Rights and Direct Allocation Right pursuant to and in accordance with Section 2.2(a), Section 2.2(c) and Section 2.4 of this Agreement and to pay the applicable aggregate Purchase Price for such Subscription Shares and Direct Allocation Shares and/or (ii) deliver and pay the applicable aggregate Purchase Price for such Equity Commitment Party’s Backstop Commitment Percentage of any Unsubscribed Shares by the Subscription Escrow Funding Date in accordance with Section 2.4, and/or (y) denies or disaffirms such Equity Commitment Party’s obligations pursuant to this Agreement.

“Equity Commitment Party Replacement” has the meaning set forth in Section 2.3(a).

“Equity Commitment Party Replacement Period” has the meaning set forth in Section 2.3(a).

“Equity Rights Offering” has the meaning set forth in the Recitals.

“Equity Rights Offering Documents” has the meaning set forth in the First Amended Plan, which, in each case, shall also be in form and substance acceptable to the Required Equity Commitment Parties.

“Equity Rights Offering Expiration Time” means the time and the date on which the applicable rights offering subscription form must be duly delivered to the Equity Rights Offering Subscription Agent in accordance with the Equity Rights Offering Procedures.

“Equity Rights Offering Participants” means those Persons who duly subscribe for Subscription Shares in accordance with the Equity Rights Offering Procedures.

“Equity Rights Offering Procedures” has the meaning set forth in the First Amended Plan, which shall also be in form and substance acceptable to the Required Equity Commitment Parties and the Debtors, as may be amended or modified in a manner that is acceptable to the Debtors and the Required Equity Commitment Parties.

“Equity Rights Offering Record Date” has the meaning set forth in the Equity Rights Offering Procedures.

“Equity Rights Offering Subscription Agent” means Kroll Restructuring Administration LLC or another subscription agent appointed by the Debtors and reasonably satisfactory to the Required Equity Commitment Parties.

“ERISA” has the meaning set forth in the First Amended Plan.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Debtors, is treated as a single employer under Section 414(b) or (c) of the IRC, or, solely for purposes of Section 302 of ERISA and Section 412 of the IRC, is treated as a single employer under Section 414 of the IRC.

“Event” means any event, development, occurrence, circumstance, effect, condition, result, state of facts or change.

“Excess Liquidity” has the meaning set forth in the First Amended Plan.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Existing Commitment Party Purchaser” has the meaning set forth in Section 2.6(c).

“Exit Facilities” has the meaning set forth in the First Amended Plan.

“Exit Facilities Documents” has the meaning set forth in the First Amended Plan.

“Expense Reimbursement” has the meaning set forth in Section 3.3.

“Fiduciaries” has the meaning set forth in Section 7.1.

“Fiduciary Out Notice” has the meaning set forth in Section 7.1.

“Filing Party” has the meaning set forth in Section 6.14(a).

“Final DIP Order” means the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Financing and (B) Use Cash Collateral, (II) Granting Liens and Providing Superpriority Administrative Expense Status, (III) Granting Adequate Protection to the Prepetition Secured Parties, (IV) Modifying the Automatic Stay, and (V) Granting Related Relief entered by the Bankruptcy Court on August 2, 2022 [Docket No. 330].

“Final Order” has the meaning set forth in the First Amended Plan.

“Final Outside Date” means June 17, 2023.

“Financial Statements” has the meaning set forth in Section 4.10.

“First Amended Plan” means the First Amended Plan that was filed by the Debtors with the Bankruptcy Court on February 21, 2023 [Docket No. 1499] (without reference to any modifications, amendments, or supplements to such Plan).

“First Lien Exit Facilities Term Sheet” has the meaning set forth in the First Amended Plan.

“Funding Amount” has the meaning set forth in Section 2.4(a)(v).

“Funding Commitment” has the meaning set forth in Section 2.2(c).

“Funding Notice” has the meaning set forth in Section 2.4(a).

“GAAP” has the meaning set forth in Section 4.10.

“Governmental Authority” means any transnational, domestic or foreign federal, state, provincial or local, governmental authority, quasi-governmental, regulatory or administrative agency, self-regulatory authority, department, court, commission, board, bureau, agency or official, including any political subdivision thereof.

“Governmental Unit” has the meaning set forth in the First Amended Plan.

“Hazardous Materials” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, exposure to which or release of which can pose a hazard to human health or the environment or are listed, regulated or defined as hazardous, toxic, pollutants or contaminants under any Environmental Laws, including materials defined as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., and any radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, per- and polyfluoroalkyl substances, polychlorinated biphenyls or radon gas.

“Holder” has the meaning set forth in the First Amended Plan.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Indemnified Claim” has the meaning set forth in Section 9.2.

“Indemnified Person” has the meaning set forth in Section 9.1.

“Indemnifying Party” has the meaning set forth in Section 9.1.

“Initial Equity Commitment Parties” means each Equity Commitment Party that was a party to the Original Backstop Commitment Agreement as of the date of execution thereof.

“Initial Equity Commitment Parties Advisors” means (i) Davis Polk & Wardwell LLP and Centerview Partners LLC in their capacities as legal and financial advisors, respectively, to the Ad Hoc Group of BrandCo Lenders, certain members of which are Initial Equity Commitment Parties, and (ii) any other professionals retained by the Ad Hoc Group of BrandCo Lenders in connection with the Equity Rights Offering.

“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, domain names, trade secrets, patents, patent licenses, trademarks, trademark licenses, trade names, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

“Intended Tax Treatment” has the meaning set forth in Section 3.4.

“IRC” has the meaning set forth in the First Amended Plan.

“Joint Filing Party” has the meaning set forth in Section 6.14(b).

“Knowledge” means the actual knowledge, after reasonable inquiry of their direct reports, of the chief executive officer, interim chief financial officer, chief operating officer and general counsel of such Person. As used herein, “actual knowledge” means information that is personally known by the listed individual(s).

“Law” means any law (statutory or common), statute, regulation, rule, code or ordinance enacted, adopted, issued or promulgated by any Governmental Unit.

“Legal Proceedings” has the meaning set forth in Section 4.14.

“Legend” has the meaning set forth in Section 6.13.

“Lien” has the meaning set forth in the First Amended Plan.

“Losses” has the meaning set forth in Section 9.1.

“Management Incentive Plan” has the meaning set forth in the First Amended Plan.

“Material Adverse Effect” means any Event after September 30, 2022 which individually, or together with all other Events, has had or would reasonably be expected to have a material and adverse effect on (a) the business, assets, liabilities, finances, properties, results of operations or condition (financial or otherwise) of the Debtors, taken as a whole, or (b) the ability of the Debtors, taken as a whole, to perform their respective obligations under, or to consummate the transactions contemplated by, this Agreement, the RSA, or the other Definitive Documents, including the Equity Rights Offering, in each case, except to the extent such Event results from, arises out of, or is attributable to, the following (either alone or in combination): (i) any change after the date hereof in global, national or regional political conditions (including acts of war, terrorism or natural disasters) or in the general business, market, financial or economic conditions affecting the industries, regions and markets in which the Debtors operate; (ii) any changes after the date hereof in applicable Law or GAAP, or in the interpretation or enforcement thereof; (iii) the execution, announcement or performance of this Agreement, the RSA, or the other Definitive Documents or the transactions contemplated hereby or thereby, including, without limitation, the Restructuring Transactions; (iv) changes in the market price or trading volume of the claims or equity or debt securities of the Debtors (but not the underlying facts giving rise to such changes unless such facts are otherwise excluded pursuant to the clauses contained in this definition); (v) the filing or pendency of the Chapter 11 Cases; (vi) acts of God, including any natural (including weather-related) or man-made event or disaster, epidemic, pandemic or disease outbreak (including the COVID-19 virus or any strain, mutation or variation thereof); (vii) any action taken at the express written request of the Equity Commitment Parties or taken by the Equity Commitment Parties, including any breach of this Agreement by the Equity Commitment Parties; or (viii) any failure by the Debtors to meet any internal or published projection for any period (but not the underlying facts giving rise to such failure unless such facts are otherwise excluded pursuant to other clauses contained in this definition); or (ix) any objections in the Bankruptcy Court to (A) this Agreement, the other Definitive Documents or the transactions contemplated hereby or thereby or (B) the reorganization of the Debtors, the First Amended Plan or the Disclosure Statement; provided that the exceptions set forth in clauses (i), (ii) and (vi) of this definition shall apply to the extent that such Event is disproportionately adverse to the Debtors, taken as a whole, as compared to other companies comparable in size and scale to the Debtors operating in the industries in which the Debtors operate, but in each case, solely to the extent of such disproportionate impact.

“Material Contracts” means (a) all “plans of acquisition, reorganization, arrangement, liquidation or succession” and “material contracts” (as such terms are defined in Items 601(b)(2) and 601(b)(10) of Regulation S-K under the Exchange Act or required to be discussed on a current report on Form 8-K) to which any Debtor is a party and (b) any Contracts to which any Debtor is a party that is likely to reasonably involve consideration of more than $20 million, in the aggregate, over a 12 month period.

“MIP Award” has the meaning set forth in the First Amended Plan.

“MNPI” means material nonpublic information.

“Money Laundering Laws” has the meaning set forth in Section 4.27.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Debtors are making or accruing an obligation to make contributions, have within any of the preceding six plan years made or accrued an obligation to make contributions, or otherwise have any actual or contingent liability or obligation, including on account of an ERISA Affiliate.

“New Common Stock” has the meaning set forth in the First Amended Plan.

“New Organizational Documents” has the meaning set forth in the First Amended Plan, which, in each case, shall also be in form and substance acceptable to the Required Equity Commitment Parties.

“New Purchaser” has the meaning set forth in Section 2.6(d).

“New Warrants” has the meaning set forth in the First Amended Plan.

“OpCo Term Loan Claim” has the meaning set forth in the First Amended Plan.

“Order” means any judgment, order, award, injunction, writ, permit, license or decree of any Governmental Unit or arbitrator of applicable jurisdiction.

“Original Backstop Commitment Agreement” has the meaning set forth in the Recitals.

 “Outside Date” has the meaning set forth in Section 10.4(e).

“Party” has the meaning set forth in the Preamble.

“Paul, Weiss” means Paul, Weiss, Rifkind, Wharton & Garrison LLP.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

“Permitted Liens” means (a) Liens for Taxes that (i) are not yet due and payable or (ii) are being contested in good faith by appropriate proceedings and for which adequate reserves have been made with respect thereto; (b) mechanics’ Liens and similar Liens for labor, materials or supplies provided with respect to any Real Property or personal property incurred in the ordinary course of business consistent with past practice and do not materially detract from the value of, or materially impair the use of, any of the Real Property or personal property of the Debtors; (c) zoning, building codes and other land use Laws regulating the use or occupancy of any Real Property or the activities conducted thereon that are imposed by any Governmental Unit having jurisdiction over such Real Property; provided that no such zoning, building codes and other land use Laws prohibit the use or occupancy of such Real Property; (d) easements, covenants, conditions, restrictions and other similar matters adversely affecting title to any Real Property and other title defects that do not or would not materially impair the use or occupancy of such Real Property or the operation of the Debtors’ business; (e) any interest or title of a lessor under any leases or subleases entered into by any of the Debtors in the ordinary course of business and any financing statement filed in connection with any such lease; (f) from and after the occurrence of the Effective Date, Liens granted in connection with the Exit Facilities; (g) Liens listed in the Company Disclosure Schedules; and (h) Liens listed on Schedule 7.3(f) to the DIP Credit Agreements; and (i) Liens that, pursuant to the Confirmation Order, will not survive beyond the Effective Date.

“Person” means a person as such term is defined in Section 101(41) of the Bankruptcy Code.

“Petition Date” means June 15, 2022.

“Plan” has the meaning set forth in the First Amended Plan, which shall be consistent with the terms set forth in the RSA, and which shall also be in form and substance acceptable to the Debtors and the Required Equity Commitment Parties.

“Pre-Closing Period” has the meaning set forth in Section 6.3.

“Purchase Price” has the meaning set forth in the Recitals.

“Real Property” means, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned in fee simple or leased by the Debtors, together with all easements, hereditaments and appurtenances relating thereto, and all improvements and appurtenant fixtures incidental to the ownership or lease thereof.

“Registration Rights Agreement” has the meaning set forth in Section 8.1(e).

“Related Fund” means, with respect to an Equity Commitment Party, any Affiliates (including at the institutional level) of such Equity Commitment Party or any fund, account (including any separately managed accounts) or investment vehicle that is controlled, managed, advised or sub-advised by such Equity Commitment Party, an Affiliate of such Equity Commitment Party or by the same investment manager, advisor or subadvisor as such Equity Commitment Party or an Affiliate of such Equity Commitment Party.

“Related Party” means, with respect to any Person, (i) any former, current or future director, officer, agent, Representative, Affiliate, employee, general or limited partner, member, controlling persons, manager or stockholder of such Person and (ii) any former, current or future director, officer, agent, Representative, Affiliate, employee, general or limited partner, member, controlling persons, manager or stockholder of any of the foregoing, in each case solely in their respective capacity as such.

“Related Purchaser” has the meaning set forth in Section 2.6(b).

“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the environment.

“Reorganized Debtors” has the meaning set forth in the First Amended Plan.

“Replacement Equity Commitment Parties” has the meaning set forth in Section 2.3(a).

“Reportable Event” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Company Plan (other than a Company Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the IRC).

“Representatives” means, with respect to any Person, such Person’s directors, officers, members, partners, managers, employees, agents, investment bankers, attorneys, accountants, advisors and other representatives.

“Required Consenting BrandCo Lenders” has the meaning set forth in the RSA.

“Required Equity Commitment Parties” means, as of the date of determination, the BrandCo Lender Equity Commitment Parties holding a majority of the aggregate amount of Backstop Commitments of all BrandCo Lender Equity Commitment Parties (excluding any Defaulting Equity Commitment Parties and their corresponding Backstop Commitments).

“Restructuring Transactions” has the meaning set forth in the First Amended Plan.

“Rights Offering Shares” means, collectively, (x) the Subscription Shares (including all Unsubscribed Shares) issued by Holdings pursuant to and in accordance with the Equity Rights Offering Procedures (and, in the case of the Unsubscribed Shares, this Agreement), and (y) the Direct Allocation Shares issued pursuant to this Agreement. For the avoidance of doubt, the product of (i) the number of Rights Offering Shares multiplied by (ii) the Purchase Price shall equal the Aggregate Rights Offering Amount (or the Adjusted Aggregate Rights Offering Amount, if applicable).

“RSA” has the meaning set forth in the Recitals.

“Sanctioned Jurisdiction” has the meaning set forth in Section 4.28.

“Sanctions” has the meaning set forth in Section 4.28.

“SEC” has the meaning set forth in the First Amended Plan.

“Securities Act” has the meaning set forth in the First Amended Plan.

“Settled Litigation” has the meaning set forth in the First Amended Plan.

“Single Employer Plan” means any Company Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the IRC or Section 302 of ERISA and in respect of which any Debtor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA or has any liability.

“Specified Debtor RSA Termination Rights” has the meaning set forth in Section 10.6(b).

“Specified Lender RSA Termination Rights” has the meaning set forth in Section 10.6(b).

“Specified RSA Termination Rights” has the meaning set forth in Section 10.6(b).

“Subscription Amount” has the meaning set forth in Section 2.4(a)(ii).

“Subscription Commitment” has the meaning set forth in Section 2.2(a).

“Subscription Escrow Account” has the meaning set forth in Section 2.4(a)(vi).

“Subscription Escrow Funding Date” has the meaning set forth in Section 2.4(b).

“Subscription Rights” means those certain rights to purchase the Subscription Shares at the applicable Purchase Price in accordance with the Equity Rights Offering Procedures, which Holdings will issue to the Holders of OpCo Term Loan Claims and 2020 Term B-2 Loan Claims on account of such claims as set forth in the First Amended Plan.

“Subscription Shares” means the shares of New Common Stock (including all Unsubscribed Shares) issued by Holdings in connection with the Subscription Rights pursuant to and in accordance with the Equity Rights Offering Procedures.

“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture or other legal entity as to which such Person (either alone or through or together with any other subsidiary or Affiliate), (a) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests, (b) has the power to elect a majority of the board of directors or similar governing body thereof or (c) has the power to direct, or otherwise control, the business and policies thereof.

“Subsidiary Interests” has the meaning set forth in Section 4.1.

“Supermajority Equity Commitment Parties” means, as of the date of determination, the Equity Commitment Parties holding at least two-thirds of the aggregate amount of Backstop Commitments of all Equity Commitment Parties (excluding any Defaulting Equity Commitment Parties and their corresponding Backstop Commitments).

“Takeover Statute” means any restrictions contained in any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation.

“Taxes” means all taxes, assessments, duties, levies or other similar mandatory governmental charges paid to a Governmental Unit in the nature of a tax, including all federal, state, local, foreign and other income, franchise, profits, gross receipts, capital gains, capital stock, transfer, property, sales, use, value-added, occupation, excise, severance, windfall profits, stamp, payroll, social security, withholding and other taxes, assessments, duties, levies or other similar mandatory governmental charges of any kind whatsoever paid to a Governmental Unit (whether payable directly or by withholding and whether or not requiring the filing of a return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest thereon.

“Term DIP Facility Credit Agreement” has the meaning set forth in the First Amended Plan.

“Total Outstanding Shares” means the total number of shares of Holdings’ New Common Stock outstanding immediately following the Closing, as provided in the First Amended Plan, (including those issued as payment of the Backstop Commitment Premium) but excluding any shares of New Common Stock reserved to be issued pursuant to the Management Incentive Plan and any shares of New Common Stock issuable upon the exercise of the New Warrants.

“Transfer” means sell, transfer, assign, pledge, hypothecate, participate, donate or otherwise encumber or dispose of, directly or indirectly (including through derivatives, options, swaps, pledges, forward sales or other transactions in which any Person receives the right to own or acquire any current or future interest in) a Funding Commitment, a Subscription Right, an OpCo Term Loan Claim, 2020 Term B-2 Loan Claim, New Warrants or New Common Stock or the act of any of the aforementioned actions.

 “Unsubscribed Shares” means the Subscription Shares that have not been duly and timely subscribed for by the Equity Rights Offering Participants in accordance with the Equity Rights Offering Procedures and the First Amended Plan.

“willful or intentional breach” has the meaning set forth in Section 10.3(d).

Except as (a) set forth in the corresponding section of the Company Disclosure Schedules, or (b) as disclosed in the Company SEC Documents and publicly available on the SEC’s Electronic Data-Gathering, Analysis and Retrieval system prior to the date hereof, each of the Debtors, jointly and severally, hereby represent and warrant to the Equity Commitment Parties as set forth below. Except for representations, warranties and agreements that are expressly limited as to their date, each representation, warranty and agreement is made as of the date hereof.

(a) Subject to the Bankruptcy Code, the terms of the applicable Orders and Canadian Orders and any required approval by the Bankruptcy Court or the Canadian Court, each Debtor (i) has filed or caused to be filed all federal, state, provincial and other Tax returns that are required to be filed and (ii) has paid or caused to be paid all Taxes shown to be due and payable on said returns and all other Taxes, fees or other charges imposed on it or on any of its property by any Governmental Unit (other than (A) any returns or amounts that are not yet due or (B) amounts the validity of which are currently being contested in good faith by appropriate proceedings and with respect to which any reserves required in conformity with GAAP have been provided on the books of the applicable Debtor).

Each Equity Commitment Party represents and warrants as to itself only (unless otherwise set forth herein, as of the date of this Agreement and as of the Closing Date) as set forth below.

During the Pre-Closing Period, (i) each of the Debtors, with respect to subsections (a)-(k) of this Section 6.5, agrees to, and agrees to cause each of its direct and indirect subsidiaries to, (ii) each of the Equity Commitment Parties, with respect to subsections (a), (d), and (e) of this Section 6.5, and (iii) each 2016 Lender Equity Commitment Party, with respect to subsection (l) of this Section 6.5 agrees to:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN AVAILABLE EXEMPTION FROM REGISTRATION THEREUNDER.”

In the event that any such Direct Allocation Shares or Unsubscribed Shares are uncertificated, such Direct Allocation Shares or Unsubscribed Shares shall be subject to a restrictive notation substantially similar to the Legend in the stock ledger or other appropriate records maintained by Holdings or its transfer agent and the term “Legend” shall include such restrictive notation.

Holdings shall remove the Legend (or restrictive notation, as applicable) set forth above from the certificates evidencing any such shares (or the stock ledger or other appropriate records, in the case of uncertified shares) at any time after the restrictions described in such Legend cease to be applicable, including, as applicable, when such shares may be sold under Rule 144 of the Securities Act without volume or manner of sale restrictions. Holdings may reasonably request such opinions, certificates or other evidence that such restrictions or conditions no longer apply as a condition to removing the Legend. For the avoidance of doubt, none of the Subscription Shares or New Common Stock issued in satisfaction of the Backstop Commitment Premium shall include the Legend.

Section 6.14        Antitrust Approval.

(a) Each Party agrees to use best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to consummate and make effective the transactions contemplated by this Agreement, the Plan and the other Definitive Documents, including (i) if applicable, filing, or causing to be filed, the Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of the United States Department of Justice and the United States Federal Trade Commission and any filings (or, if required by any Antitrust Authority, any drafts thereof) under any other Antitrust Laws that are necessary to consummate and make effective the transactions contemplated by this Agreement as soon as reasonably practicable (and with respect to any filings required pursuant to the HSR Act, no later than fifteen (15) Business Days following the later of (x) the date hereof or (y) a date reasonably determined by the Required Equity Commitment Parties (not to be later than twenty-five (25) Business Days following the date hereof)) and (ii) promptly furnishing documents or information reasonably requested by any Antitrust Authority and supplying to any Governmental Authority as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Unit and taking, or causing to be taken, all other actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement. The Debtors agree to pay all fees of a Governmental Authority incurred by any Party in connection with the filings and other actions contemplated by this Section 6.14.

Each Equity Commitment Party, including its Affiliates, and its direct and indirect subsidiaries, agrees to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to resolve such objections, if any, that a Governmental Authority or Antitrust Authority may assert under any Antitrust Law with respect to any transaction contemplated by this Agreement, the Plan or the other Definitive Documents, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or Antitrust Authority with respect to any transaction contemplated by this Agreement, the Plan or the other Definitive Documents, in each case, so as to enable the Closing to occur as promptly as practicable, including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any businesses, assets, equity interests, product lines or properties of any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), or any equity interest in any joint venture held any by any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), and (z) otherwise taking or committing to take any action that would limit any Equity Commitment Party’s (including its Affiliates’, and its direct and indirect subsidiaries’) freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries) or any equity interest in any joint venture held by any Equity Commitment Party (including its Affiliates, and its direct and indirect subsidiaries), in each case as may be required in order to obtain all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations required directly or indirectly under any Antitrust Law or to avoid the commencement of any action to prohibit any transaction contemplated by this Agreement, the Plan or the other Definitive Documents under any Antitrust Law, or, in the alternative, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any action or proceeding seeking to prohibit any transaction contemplated by this Agreement, the Plan or the other Definitive Documents or delay the Closing.

The Debtors and each Equity Commitment Party subject to an obligation pursuant to the Antitrust Laws, if applicable, to notify any transaction contemplated by this Agreement, the Plan or the other Definitive Documents that has notified the Debtors in writing of such obligation (each such Equity Commitment Party, a “Filing Party”) agree to reasonably cooperate with each other as to the appropriate time of filing such notification and its content. Where applicable in connection with this Agreement, the Debtors and each Filing Party shall, to the extent permitted by applicable Law: (A) promptly notify each other of, and if in writing, furnish each other with copies of (or, in the case of material oral communications, advise each other orally of) any communications from or with an Antitrust Authority; (B) not participate in any meeting with an Antitrust Authority unless it consults with each other Filing Party and the Debtors, as applicable, in advance and, to the extent permitted by the Antitrust Authority and applicable Law, give each other Filing Party and the Debtors, as applicable, a reasonable opportunity to attend and participate thereat; (C) furnish each other Filing Party and the Debtors, as applicable, with copies of all correspondence and communications between such Filing Party or the Debtors and the Antitrust Authority; (D) furnish each other Filing Party with such necessary information and reasonable assistance as may be reasonably necessary in connection with the preparation of necessary filings or submission of information to the Antitrust Authority; and (E) not withdraw its filing, if any, under the HSR Act without the prior written consent of the Required Equity Commitment Parties and the Debtors.  Any such disclosures, rights to participate or provisions of information by one party to the other parties may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information, and any materials provided pursuant to this Section 6.14 may be redacted (i) to remove references concerning valuation; (ii) to the extent necessary to comply with contractual arrangements; and (iii) to the extent necessary to address reasonable privilege and confidentiality concerns.

(b)        Should a Filing Party be subject to an obligation under the Antitrust Laws to jointly notify with one or more other Filing Parties (each, a “Joint Filing Party”) any transaction contemplated by this Agreement, the Plan or the other Definitive Documents, such Joint Filing Party shall promptly notify each other Joint Filing Party of, and if in writing, furnish each other Joint Filing Party with copies of (or, in the case of material oral communications, advise each other Joint Filing Party orally of) any communications from or with an Antitrust Authority.

(c)         The Debtors and each Filing Party shall use their best efforts to obtain all authorizations, approvals, consents, or clearances under any applicable Antitrust Laws or to cause the termination or expiration of all applicable waiting periods under any Antitrust Laws in connection with the transactions contemplated by this Agreement at the earliest possible date after the date of filing. The communications contemplated by this Section 6.14 may be made by the Debtors or a Filing Party on an outside counsel-only basis or subject to other agreed upon confidentiality safeguards.

Section 6.15        Equity Rights Offering. The Debtors shall effectuate the Equity Rights Offering in accordance with the Plan and the Equity Rights Offering Procedures in all material respects.

Section 7.1         Fiduciary Out. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require any Debtor or the board of directors, board of managers, or similar governing body of any Debtor (the aforementioned parties collectively as to the Debtors, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, including based on the results of the Independent Investigation; provided that counsel to the Debtors shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to the Initial Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties following a determination made in accordance with this Section 7.1 to take or not take action, in each case in a manner that would result in a breach of this Agreement. This Section 7.1 shall not be deemed to amend, supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this Agreement pursuant to Article X or Section 7.1 of this Agreement that may arise as a result of any such action or inaction.

Section 7.2        Alternative Transactions. From the date of this Agreement until the Closing Date, (i) each Debtor and its respective board of directors (or committees thereof, but not any individual director), officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives, each acting in their capacity as such, shall have the right, consistent with their fiduciary duties, to continue to conclusion any ongoing discussions with interested parties and to respond to any inbound indications of interest, but will no longer solicit Alternative Restructuring Proposals (or inquiries or indications of interest with respect thereto); and (ii) if any Debtor or the board of directors of any of the Debtors determines, in the exercise of its fiduciary duties, to accept or pursue an Alternative Restructuring Proposal, including by making any written or oral proposal or counterproposal with respect thereto, the Debtors shall notify (with email being sufficient) counsel to the Initial Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties within two (2) Business Days following such determination and/or proposal or counterproposal (with respect to a notice in respect of an Alternative Restructuring Proposal, an “Alternative Restructuring Counterproposal Notice”). Upon receipt of such Alternative Restructuring Counterproposal Notice, the Required Equity Commitment Parties shall have the right to terminate this Agreement; provided that any such notice terminating this Agreement pursuant to Section 7.2 must notify the Debtors that the Required Equity Commitment Parties do not support the applicable Alternative Restructuring Proposal and would intend to credit bid their 2020 Term B-2 Loan Claims and Opco Term Loan Claims, if any, as an alternative to such Alternative Restructuring Proposal. The Debtors’ advisors shall provide the Initial Equity Commitment Parties Advisors and any other party determined by the Debtors, with (x) regular updates as to the status and progress of any Alternative Restructuring Proposals and (y) reasonable responses to any reasonable information requests related to any Alternative Restructuring Proposals or the Debtors’ actions taken pursuant to this Section 7.2. Nothing in this Agreement shall impair or waive the rights of any Debtor to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, or (b) prevent any Debtor from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement.

Section 8.1         Conditions to the Obligations of the Equity Commitment Parties. The obligations of each Equity Commitment Party to consummate the transactions contemplated hereby shall be subject to (unless waived by the Required Equity Commitment Parties) the satisfaction of the following conditions prior to or at the Closing:

(a)         Orders. The Bankruptcy Court shall have entered the Backstop Order, Disclosure Statement Order, and Confirmation Order, in each case, in form and substance acceptable to the Required Equity Commitment Parties and consistent in all material respects with the RSA and the Definitive Documents; each such Order shall be a Final Order; such Order shall be in full force and effect, and not subject to a stay.

(b)         Plan. Each Debtor shall have complied, in all material respects, with the terms of the Plan that are to be performed by each Debtor on or prior to the Effective Date and the conditions to the occurrence of the Effective Date (other than any conditions relating to the occurrence of the Closing) set forth in the Plan shall have been satisfied or, with the prior consent of the Required Consenting BrandCo Lenders, waived in accordance with the terms of the Plan.

(c)         Equity Rights Offering. The Equity Rights Offering shall have been conducted, in all respects, in accordance with the Backstop Order, the Equity Rights Offering Procedures and this Agreement, and the Equity Rights Offering Expiration Time shall have occurred.

(d)         Effective Date. The Effective Date shall have occurred, or shall be deemed to have occurred concurrently with the Closing, in accordance with the terms and conditions in the Plan and in the Confirmation Order.

(e)          Registration Rights Agreement; New Organizational Documents.

(i)     If applicable, a registration rights agreement shall have terms that are customary for a transaction of this nature and shall be in form and substance reasonably acceptable to the Required Equity Commitment Parties and the Debtors (the “Registration Rights Agreement”). The Registration Rights Agreement, if applicable, shall have been executed and delivered by Holdings, shall otherwise have become effective with respect to the Equity Commitment Parties and the other parties thereto, and shall be in full force and effect.

(ii)    The New Organizational Documents, in the form and substance acceptable to the Debtors and the Required Equity Commitment Parties, shall have been duly approved and adopted and shall be in full force and effect.

(f)          Expense Reimbursement. The Debtors shall have paid (or such amounts shall be paid concurrently with the Closing) all Expense Reimbursement invoiced through the Closing Date pursuant to Section 3.3.

(g)         Consents. All governmental and third-party notifications, filings, consents, waivers and approvals required for the consummation of the transactions contemplated by this Agreement and the Plan shall have been made or received.

(h)        Antitrust Approvals. All waiting periods imposed by any Governmental Authority or Antitrust Authority in connection with the transactions contemplated by this Agreement shall have terminated or expired and all authorizations, approvals, consents or clearances under the Antitrust Laws in connection with the transactions contemplated by this Agreement shall have been obtained.

(i)          No Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the transactions contemplated by this Agreement.

(j)          Representations and Warranties.

(i)     The representations and warranties of the Debtors contained in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.26, 4.27, 4.28, and 4.31 shall be true and correct in all respects on and as of the Closing Date after giving effect to the Plan with the same effect as if made on and as of the Closing Date after giving effect to the Plan (except for such representations and warranties made as of a specified date, which shall be true and correct only as of the specified date).

(ii)    The representations and warranties of the Debtors contained in Sections 4.14, 4.19, and 4.25 shall be true and correct in all material respects on and as of the Closing Date, or will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of the Closing Date after giving effect to the Plan (except for such representations and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified date).

(iii)   The representations and warranties of the Debtors contained in this Agreement other than those referred to in clauses (i) and (ii) above shall be true and correct (disregarding all materiality or Material Adverse Effect qualifiers) on and as of the Closing Date after giving effect to the Plan with the same effect as if made on and as of the Closing Date or will be true and correct in all material respects on and as of the Closing Date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of the specified date), except where the failure to be so true and correct does not constitute, individually or in the aggregate, a Material Adverse Effect.

(k)         Covenants. The Debtors shall have performed and complied, in all material respects, with all of their respective covenants and agreements contained in this Agreement that contemplate, by their terms, performance or compliance prior to the Closing Date.

(l)         Material Adverse Effect. Since September 30, 2022, except for the Chapter 11 Cases and any adversary proceedings or contested motions in connection therewith, including the Adversary Proceeding, there shall not have occurred, and there shall not exist, any event, development, occurrence or change that constitutes, individually or in the aggregate, a Material Adverse Effect.

(m)        Officer’s Certificate. The Equity Commitment Parties shall have received on and as of the Closing Date a certificate of the chief executive officer or chief financial officer of Holdings confirming that the conditions set forth in Sections 8.1(j), (k), and (l) have been satisfied.

(n)         Exit Facilities. The Exit Facilities shall be in effect with the terms set forth in the First Amended Plan, as in effect on the date hereof.

(o)         RSA. The RSA shall not have terminated, and no Breach Notice shall have been given under the RSA in accordance with the terms thereof.

(p)         Backstop Commitment Premium. The Debtors shall have paid (or such amounts shall be paid concurrently with the Closing) to each Equity Commitment Party its Backstop Commitment Premium Share Amount as set forth in Section 3.2.

(q)         Funding Notice. The Equity Commitment Parties shall have received the Funding Notice in accordance with the terms of this Agreement.

Section 8.2          Certificate of Incorporation. Upon the Closing, the rights, preferences and privileges of the New Common Stock will be as stated in the Certificate of Incorporation in accordance with the Plan and as provided by law.

Section 8.3         Waiver of Conditions to Obligations of Equity Commitment Parties. All or any of the conditions set forth in Sections 8.1 may only be waived in whole or in part with respect to all Equity Commitment Parties by a written instrument (with email being sufficient) executed by the Required Equity Commitment Parties in their sole discretion and if so waived, all Equity Commitment Parties shall be bound by such waiver.

Section 8.4         Conditions to the Obligations of the Debtors. The obligations of the Debtors to consummate the transactions contemplated hereby with any Equity Commitment Party is subject to (unless waived by the Debtors by a written instrument (with email being sufficient)) the satisfaction of each of the following conditions:

(a)         Orders. The Bankruptcy Court shall have entered the Backstop Order, Disclosure Statement Order, and Confirmation Order, in each case, in form and substance acceptable to the Debtors and consistent in all material respects with the RSA and the Definitive Documents; each such Order shall be a Final Order; such Order shall be in full force and effect, and not subject to a stay.

(b)         Effective Date. The Effective Date shall have occurred, or shall be deemed to have occurred concurrently with the Closing, in accordance with the terms and conditions in the Plan and in the Confirmation Order.

(c)         Equity Rights Offering. The Equity Rights Offering Expiration Time shall have occurred, and the Debtors shall have received the Aggregate Rights Offering Amount (or the Adjusted Aggregated Rights Offering Amount, if applicable) in full in Cash pursuant to the Equity Rights Offering or this Agreement.

(d)        Antitrust Approvals. All waiting periods imposed by any Governmental Authority or Antitrust Authority in connection with the transactions contemplated by this Agreement shall have terminated or expired and all authorizations, approvals, consents or clearances under the Antitrust Laws in connection with the transactions contemplated by this Agreement shall have been obtained.

(e)         No Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the transactions contemplated by this Agreement.

(f)         Representations and Warranties. The representations and warranties of the Equity Commitment Parties contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of the Closing Date (except for such representations and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified date).

(g)        Consents. All governmental and third-party notifications, filings, consents, waivers and approvals required for the consummation of the transactions contemplated by this Agreement and the Plan shall have been made or received.

(h)        Covenants. The Equity Commitment Parties shall have performed and complied, in all material respects, with all of their respective covenants and agreements contained in this Agreement that contemplate, by their terms, performance or compliance prior to the Closing Date.

(i)          Exit Facilities. The Exit Facilities shall be in effect with the terms set forth in the First Amended Plan, as in effect on the date hereof.

(j)          RSA. The RSA shall not have terminated, and no Breach Notice shall have been given under the RSA in accordance with the terms thereof.

Section 9.1         Indemnification Obligations. Following the entry of the Backstop Order, but effective as of the date hereof, the Debtors (the “Indemnifying Parties,” and each, an “Indemnifying Party”) shall, jointly and severally, indemnify and hold harmless each Equity Commitment Party and its Affiliates, equity holders, members, partners, general partners, managers and its and their respective Representatives and controlling persons (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and costs and expenses (other than Taxes of the Equity Commitment Parties except to the extent otherwise provided for in this Agreement) (collectively, “Losses”) that any such Indemnified Person may incur or to which any such Indemnified Person may become subject arising out of or in connection with this Agreement, the Plan, and the transactions contemplated hereby and thereby, including the Backstop Commitment, the Equity Rights Offering, the Expense Reimbursement, the payment of the Backstop Commitment Premium or the Backstop Commitment Termination Premium or the use of the proceeds of the Equity Rights Offering, or any claim, challenge, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any Indemnified Person is a party thereto, whether or not such proceedings are brought by the Debtors, the Reorganized Debtors, their respective equity holders, Affiliates, creditors or any other Person, and reimburse each Indemnified Person upon demand for reasonable documented out-of-pocket (with such documentation subject to redaction to preserve attorney client and work product privileges) legal or other third-party expenses incurred in connection with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuit, investigation, claim or other proceeding relating to any of the foregoing (including in connection with the enforcement of the indemnification obligations set forth herein), irrespective of whether or not the transactions contemplated by this Agreement or the Plan are consummated or whether or not this Agreement is terminated; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to Losses (a) as to a Defaulting Equity Commitment Party or its Related Parties, or (b) to the extent they are found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the willful misconduct, bad faith or gross negligence of such Indemnified Person. The Indemnified Persons are express third-party beneficiaries of this Article IX.

Section 9.2         Indemnification Procedure.   Promptly after receipt by an Indemnified Person of notice of the commencement of any claim, challenge, litigation, investigation or proceeding (an “Indemnified Claim”), such Indemnified Person will, if a claim is to be made hereunder against the Indemnifying Party in respect thereof, notify the Indemnifying Party in writing of the commencement thereof; provided that (a) the omission to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have hereunder except to the extent it has been materially prejudiced by such failure and (b) the omission to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have to such Indemnified Person otherwise than on account of this Agreement. In case any such Indemnified Claims are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein, and, at its election by providing written notice to such Indemnified Person, the Indemnifying Party will be entitled to assume the defense thereof or participation therein, with counsel reasonably acceptable to such Indemnified Person; provided further, that if the parties (including any impleaded parties) to any such Indemnified Claims include both such Indemnified Person and the Indemnifying Party and based on advice of such Indemnified Person’s counsel there are legal defenses available to such Indemnified Person that are different from or additional to those available to the Indemnifying Party, such Indemnified Person shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Indemnified Claims. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election to so assume the defense of such Indemnified Claims with counsel reasonably acceptable to the Indemnified Person, the Indemnifying Party shall not be liable to such Indemnified Person for expenses incurred by such Indemnified Person in connection with the defense thereof or participation therein (other than reasonable documented out-of-pocket costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel (in addition to any local counsel) in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel representing the Indemnified Persons who are parties to such Indemnified Claims (in addition to one local counsel in each jurisdiction in which local counsel is required)), (ii) the Indemnifying Party shall not have employed counsel reasonably acceptable to such Indemnified Person to represent such Indemnified Person within a reasonable time after the Indemnifying Party has received notice of commencement of the Indemnified Claims from, or delivered on behalf of, the Indemnified Person, (iii) after the Indemnifying Party assumes the defense of the Indemnified Claims, the Indemnified Person determines in good faith that the Indemnifying Party has failed or is failing to defend such claim and provides written notice of such determination, and such failure is not reasonably cured within ten (10) Business Days following receipt of such notice by the Indemnifying Party, or (iv) the Indemnifying Party shall have authorized in writing the employment of counsel for such Indemnified Person.

Section 9.3        Settlement of Indemnified Claims.   The Indemnifying Party shall not be liable for any settlement of any Indemnified Claims effected by such Indemnified Person without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If any settlement of any Indemnified Claims is consummated with the written consent of the Indemnifying Party or if there is a final judgment for the plaintiff in any such Indemnified Claims, the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Person from and against any and all Losses by reason of such settlement or judgment to the extent such Losses are otherwise subject to indemnification by the Indemnifying Party hereunder in accordance with, and subject to the limitations of, this Article IX. Notwithstanding anything in this Article IX to the contrary, if at any time an Indemnified Person shall have requested the Indemnifying Party to reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Indemnified Claims as contemplated by this Article IX, the Indemnifying Party shall be liable for any settlement of any Indemnified Claims effected without its written consent if (a) such settlement is entered into more than thirty (30) days after receipt by the Indemnifying Party of such request for reimbursement and (b) the Indemnifying Party shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. The Indemnifying Party shall not, without the prior written consent of an Indemnified Person (which consent shall be granted or withheld, conditioned or delayed in the Indemnified Person’s sole discretion), effect any settlement of any pending or threatened Indemnified Claims in respect of which indemnity or contribution has been sought hereunder by such Indemnified Person unless (i) such settlement includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on the claims that are the subject matter of such Indemnified Claims and (ii) such settlement does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

Section 9.4         Contribution.   If for any reason the foregoing indemnification is unavailable to any Indemnified Person or insufficient to hold it harmless from Losses that are subject to indemnification pursuant to Section 9.1, then the Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Person as a result of such Loss in such proportion as is appropriate to reflect not only the relative benefits received by the Indemnifying Party, on the one hand, and such Indemnified Person, on the other hand, but also the relative fault of the Indemnifying Party, on the one hand, and such Indemnified Person, on the other hand, as well as any relevant equitable considerations. It is hereby agreed that the relative benefits to the Indemnifying Party, on the one hand, and all Indemnified Persons, on the other hand, shall be deemed to be in the same proportion as (a) the total value received or proposed to be received by Holdings pursuant to the issuance and sale of the Rights Offering Shares in the Equity Rights Offering contemplated by this Agreement and the Plan bears to (b) the Backstop Commitment Premium paid or proposed to be paid to the Equity Commitment Parties. Subject to Section 10.6, the Indemnifying Parties also agree that no Indemnified Person shall have any liability based on their comparative or contributory negligence or otherwise to the Indemnifying Parties, any Person asserting claims on behalf of or in right of any of the Indemnifying Parties, or any other Person in connection with an Indemnified Claim.

Section 9.5        Treatment of Indemnification Payments.   All amounts paid by an Indemnifying Party to an Indemnified Person under this Article IX shall, to the extent permitted by applicable Law, be treated for all Tax purposes as adjustments to the Backstop Commitment Premium or the Backstop Commitment Termination Premium of such Indemnified Person, as the case may be, or, to the extent arising after the Closing Date, the Purchase Price of the Rights Offering Shares subscribed for by such Indemnified Person in the Equity Rights Offering, or the Unsubscribed Shares purchased by such Indemnified Person, as applicable. The provisions of this Article IX are an integral part of the transactions contemplated by this Agreement and without these provisions the Equity Commitment Parties would not have entered into this Agreement. The obligations of the Debtors under this Article IX shall constitute allowed administrative expenses of the Debtors’ estate under Sections 503(b) and 507 of the Bankruptcy Code and are payable without further Order of the Bankruptcy Court, and that the Debtors may comply with the requirements of this Article IX without further Order of the Bankruptcy Court.

Section 9.6        No Survival.   All representations, warranties, covenants and agreements made in this Agreement shall not survive the Closing Date except for covenants and agreements that by their express terms are to be satisfied after the Closing Date, which covenants and agreements shall survive until satisfied in accordance with their terms. Notwithstanding the foregoing, the indemnification and other obligations of each of the Debtors pursuant to this Article IX and the other obligations set forth in Section 10.6 shall survive the Closing Date until the latest date permitted by applicable Law and, if applicable, be assumed by each of the Reorganized Debtors.

Section 10.1        Consensual Termination.   This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing Date by mutual written consent of the Debtors and the Required Equity Commitment Parties.

Section 10.2        [Reserved].

Section 10.3       Termination by the Debtors.   This Agreement may be terminated by the Debtors upon written notice to each Equity Commitment Party upon the occurrence of any of the following Events, subject to the rights of the Debtors to fully and conditionally waive, in writing, on a prospective or retroactive basis the occurrence of such Event:

(a)          the termination of the RSA as to the Debtors in accordance with its terms;

(b)         the occurrence of any Debtor Termination Event set forth in Section 13.04 of the RSA, other than in the case of (x) Section 13.04(c) of the RSA with respect to acts or omissions of the Creditors’ Committee or the Consenting 2016 Lenders or (y)  Section 13.04(f) of the RSA;

(c)          the Bankruptcy Court denies entry of the Backstop Order or any Order approving this Agreement;

(d)         subject to the right of the Required Equity Commitment Parties to arrange an Equity Commitment Party Replacement in accordance with Section 2.3(a) (which will be deemed to cure any breach by the replaced Equity Commitment Party pursuant to this Section 10.3(d)), (i) any Equity Commitment Party shall have (x) breached any representation, warranty, covenant or other agreement made by such Equity Commitment Party in this Agreement or any such representation or warranty shall have become inaccurate and such breach or inaccuracy would or would reasonably be expected to, individually or in the aggregate, cause a condition set forth in Section 8.4(f) or Section 8.4(h) not to be satisfied or (y) materially breached or ceased to be a party to the RSA, (ii) the Debtors shall have delivered written notice of such breach or inaccuracy to such Equity Commitment Party, and (iii) such breach or inaccuracy is not cured by such Equity Commitment Party by the earlier of the tenth (10^th) Business Day after receipt of such notice and the third (3^rd) Business Day prior to the Outside Date; provided that the Debtors shall not have the right to terminate this Agreement pursuant to this Section 10.3(d) if they are then in willful or intentional breach of this Agreement; provided further, that this Agreement shall continue in full force and effect with respect to the Debtors and the non-breaching Equity Commitment Parties. For purposes of this Agreement, “willful or intentional breach” means a breach of this Agreement that is a consequence of an act undertaken by the breaching party with the knowledge that the taking of such act would, or would reasonably be expected to, cause a breach of this Agreement;

(e)          the Backstop Order or the Confirmation Order is reversed, dismissed, vacated, or reconsidered;

(f)         the Closing Date has not occurred by 11:59 p.m., New York City time on April 18, 2023, unless prior thereto the Effective Date occurs and the Rights Offering has been consummated; provided that the Debtors shall not have the right to terminate this Agreement pursuant to this Section 10.3(f) if they are then in willful or intentional breach of this Agreement;

(g)         if Holdings shall not receive the Aggregate Rights Offering Amount (or the Adjusted Aggregate Rights Offering Amount, if applicable) pursuant to the Equity Rights Offering and this Agreement (subject to the right of the Required Equity Commitment Parties to arrange an Equity Commitment Party Replacement in accordance with Section 2.3(a)); provided that any termination pursuant to this Section 10.3(g) shall not relieve or otherwise limit the liability of any Defaulting Equity Commitment Party hereto for any breach or violation of its obligations under this Agreement or any documents or instruments delivered in connection herewith; or

(h)        any applicable Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the Equity Rights Offering or the transactions contemplated by this Agreement or the other Definitive Documents; provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement.

Section 10.4  Termination by the Required Equity Commitment Parties.  This Agreement may be terminated by the Required Equity Commitment Parties upon written notice to the Debtors if:

(a)         the RSA has been terminated as to the Debtors in accordance with its terms;

(b)         the occurrence of any Consenting BrandCo Lender Termination Event set forth in Section 13.01 of the RSA (as in effect as of the date hereof, without reference to any modifications, amendments or supplements to such RSA), which termination events are hereby incorporated by reference herein, other than in the case of Section 13.01(a), (e), (g), (k), (n), or (o) of the RSA with respect to acts or omissions of the Consenting 2016 Lenders or the Creditors’ Committee; provided that the consent rights referenced in such termination events shall instead refer to the consent of the Required Equity Commitment Parties and be consistent with the consent rights set forth in Section 6.2 herein;

(c)         (i) the Bankruptcy Court has not entered or denies entry of the Backstop Order on or prior to February 22, 2023; or (ii) the Bankruptcy Court has not entered the Confirmation Order on or prior to April 4, 2023;

(d)        the Backstop Order or the Confirmation Order is reversed, dismissed, vacated, reconsidered or is modified or amended in any material respect after entry without the prior written consent of the Required Equity Commitment Parties; provided that this termination right may not be exercised by any Party that sought or requested such reversal, dismissal, vacation, reconsideration, modification or amendment;

(e)        the Closing Date has not occurred by 11:59 p.m., New York City time on April 18, 2023 (as it may be extended pursuant to this Section 10.4(e) or Section 2.3(a), the “Outside Date”), provided that the Outside Date may be waived or extended with the prior written consent of the Required Equity Commitment Parties up to the Final Outside Date, and the Final Outside Date may be waived or extended only with the prior written consent of each Equity Commitment Party (excluding any Defaulting Equity Commitment Party);

(f)         (i) Holdings or any Debtor shall have breached any representation, warranty, covenant or other agreement made by Holdings or the other Debtors in this Agreement or any such representation or warranty shall have become inaccurate and such breach or inaccuracy would, individually or in the aggregate, cause a condition set forth in Sections 8.1(j), 8.1(k) or 8.1(l) not to be satisfied, (ii) any Equity Commitment Party shall have delivered written notice of such breach or inaccuracy to the Debtors, and (iii) if such breach or inaccuracy is capable of being cured, such breach or inaccuracy is not cured by Holdings or the other Debtors by the earlier of (x) the tenth (10^th) Business Day after receipt of such notice, and (y) the third (3^rd) Business Day prior to the Outside Date; provided that this Agreement may not be terminated pursuant to this Section 10.4(f) if the Required Equity Commitment Parties are then in willful or intentional breach of this Agreement;

(g)         since September 30, 2022, there shall have occurred any event, development, occurrence or change that, individually, or together with all other Events, has had or would reasonably be expected to have a Material Adverse Effect; or

(h)        any applicable Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Unit that prohibits the implementation of the Plan or the Equity Rights Offering or the transactions contemplated by this Agreement or the other Definitive Documents; provided that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement.

Section 10.5        Termination by the 2016 Lender Equity Commitment Parties; Termination by Equity Commitment Parties.

(a)         This Agreement may be terminated as to a 2016 Lender Equity Commitment Party upon written notice by (x) such 2016 Lender Equity Commitment Party to the Debtors and the BrandCo Lender Equity Commitment Parties, (y) the Required Equity Commitment Parties to the Debtors, the BrandCo Lender Equity Commitment Parties and such 2016 Lender Equity Commitment Party, or (z) the Debtors to the BrandCo Lender Equity Commitment Parties and such 2016 Lender Equity Commitment Party, in each case within one (1) day of the termination of the RSA as to such 2016 Lender Equity Commitment Party.

(b)          This Agreement may be terminated by any Equity Commitment Party, with regard to itself only, by written notice to the Debtors and the other Equity Commitment Parties if the Closing does not occur by the Final Outside Date. If this Agreement is terminated with respect to a 2016 Lender Equity Commitment Party, such 2016 Lender Equity Commitment Party will be treated as a Defaulting Equity Commitment Party pursuant to Section 2.3(c) of this Agreement.

Section 10.6        Effect of Termination.   (a) Upon termination of this Agreement pursuant to this Article X, this Agreement shall forthwith become void and of no force or effect and there shall be no further obligations or liabilities on the part of the Parties; provided that (i) subject to Section 2.3(b), the obligations of the Debtors to pay the Expense Reimbursement pursuant to Article III, to satisfy their indemnification obligations pursuant to Article IX, and to pay the Backstop Commitment Termination Premium pursuant to Section 3.2 (and subject to Section 9.6) shall survive the termination of this Agreement and shall remain in full force and effect, in each case, until such obligations have been satisfied, and (ii) this Section 10.6 and Article XI shall survive the termination of this Agreement in accordance with their terms.

(b)          Notwithstanding anything to the contrary contained herein, if this Agreement is terminated pursuant to

(i)      Section 7.1 or Section 7.2;

(ii)    Section 10.3(a) (other than a termination pursuant to (x) Section 13.04(c), (d) or (e) of the RSA; provided that (x) Section 13.04(b) shall also be excluded if such termination or termination right occurs as a result of any action by a BrandCo Lender Equity Commitment Party or a failure of a BrandCo Lender Equity Commitment Party to take actions required by the RSA or this Agreement and (y) Section 13.04(g) shall also be excluded if such termination or termination right occurs as a result of the failure of the Required Consenting BrandCo Lenders to negotiate the terms and conditions of the Global Bonus Program (as defined in the RSA) in good faith) (collectively, the “Specified Debtor RSA Termination Rights”), or (y) Section 13.01(b), (j) (unless such termination or termination right arose as a result of an event of default under the DIP Credit Agreement that has occurred and been declared by the Required Lenders (as defined therein)), or (l) of the RSA; provided that a termination or termination right arising under Section 13.01(d) or (g) shall also be excluded if such termination or termination right occurs as a result of any action by a BrandCo Lender Equity Commitment Party or a failure of a BrandCo Lender Equity Commitment Party to take actions required by the RSA or this Agreement (collectively, the “Specified Lender RSA Termination Rights” and, together with the Specified Debtor Termination Rights, the “Specified RSA Termination Rights”);

(iii)    Section 10.3(b) (other than a termination of this Agreement pursuant to the occurrence of a Specified Debtor RSA Termination Right);

(iv)   Section 10.3(e); provided that a termination arising under Section 10.3(e) shall be excluded if such termination occurs as a result of any action by a BrandCo Lender Equity Commitment Party or a failure of a BrandCo Lender Equity Commitment Party to take actions required by the RSA or this Agreement;

(v)    Section 10.3(f); provided that the Required Equity Commitment Parties have extended or have stated in writing that they are willing to extend the Outside Date beyond such date;

(vi)    [Reserved];

(vii)   Section 10.4(a) (other than a termination pursuant to a Specified RSA Termination Right or a termination resulting from the a breach of the RSA by any of the parties constituting the Required Equity Commitment Parties);

(viii)  Section 10.4(b) (other than a termination of this Agreement pursuant to the occurrence of a Specified Lender RSA Termination Right);

(ix)   Section 10.4(d); provided that a termination arising under Section 10.4(d) shall be excluded if such termination occurs as a result of any action by an Equity Commitment Party or a failure of an Equity Commitment Party to take actions required by the RSA or this Agreement;

(x)     Section 10.4(e) (so long as prior to such termination, the Outside Date has been extended beyond April 18, 2023 for a period of time reasonably acceptable to each of the Debtors and the Required Equity Commitment Parties (it being agreed that June 18, 2023 shall be an acceptable date to the Debtors)); or

(xi)   Section 10.4(f); provided that a termination arising under Section 10.4(f) from a failure to satisfy the condition set forth in Section 8.1(l) shall be excluded;

(xii)   [Reserved];

(xiii) then, as promptly as practicable and in any event no later than two (2) Business Days following such termination, the Debtors shall pay or cause to be paid to the Equity Commitment Parties that are not (x) Defaulting Commitment Parties or (y) Equity Commitment Parties whose breach of this Agreement caused its termination, (i) the Backstop Commitment Termination Premium (pro rata in accordance with their Backstop Commitment Percentages, excluding the Backstop Commitment Percentage of any (A) Defaulting Equity Commitment Party or (B) Equity Commitment Party whose breach of this Agreement caused its termination), and (ii) any filing fees or other similar costs, fees or expenses associated with the matters contemplated by Section 6.14, as well as the Expense Reimbursement pursuant to Section 3.3 (in each case, excluding any such fees or other expenses referenced in this clause (ii) of any (A) Defaulting Equity Commitment Party or (B) Equity Commitment Party whose breach of this Agreement caused its termination); provided that any invoices shall not be required to contain individual time detail.  Subject to Section 11.10, nothing in this Section 10.6 shall relieve any Party from liability for its breach of this Agreement; provided further that, for the avoidance of doubt, in no event shall the Backstop Commitment Termination Premium be payable if this Agreement is terminated by any Party as a result of (i) the entry of Confirmation Order or the Backstop Order being denied, or any of such orders being reversed, vacated, reconsidered or otherwise ceasing to constitute a Final Order, (ii) any ruling in the Adversary Proceeding that would render confirmation of the Plan impractical or impossible, or (iii) any applicable Law or Order of any Governmental Unit shall prevent or prohibit the confirmation of the Plan or the consummation of a material portion of the transactions contemplated by this Agreement or the other Definitive Documents; provided further, that in no event shall the Backstop Commitment Termination Premium be payable to any 2016 Lender Equity Commitment Party whose breach resulted in the termination of the RSA as to such 2016 Lender Equity Commitment Party.

(c)        The automatic stay applicable under section 362 of the Bankruptcy Code shall not prohibit a Party from taking any action or delivering any notice necessary to effectuate the termination of this Agreement pursuant to and in accordance with the terms hereof.

Section 11.1   Notices.   All notices and other communications in connection with this Agreement shall be in writing and shall be deemed given if delivered personally, sent via electronic facsimile (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the Parties at the following addresses (or at such other address for a Party as may be specified by like notice):

(b)         If to the Initial Equity Commitment Parties (or to any of them), counsel to the Initial Equity Commitment Parties, or any other Person to which notice is to be delivered hereunder, to the address set forth on each such Equity Commitment Party’s signature page to this Agreement,

(c)         If to the 2016 Lender Equity Commitment Parties (or to any of them), counsel to the 2016 Lender Commitment Parties, or any other Person to which notice is to be delivered hereunder, to the address set forth on each such 2016 Lender Commitment Party’s signature page to this Agreement,

Section 11.2       Assignment; Third-Party Beneficiaries.   Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned by any Party (whether by operation of Law or otherwise) without the prior written consent of the Debtors and the Required Equity Commitment Parties, other than an assignment by an Equity Commitment Party expressly permitted by Section 2.3 or Section 2.6 and any purported assignment in violation of this Section 11.2 shall be void ab initio and of no force or effect. Except as expressly provided in Article IX with respect to the Indemnified Persons, this Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any Person any rights or remedies under this Agreement other than the Parties.

Section 11.3      Prior Negotiations; Entire Agreement.   (a) This Agreement (including the exhibits, the schedules, and the other documents and instruments referred to herein and in the RSA) constitutes the entire agreement of the Parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, among the Parties with respect to the subject matter of this Agreement, except that the Parties hereto acknowledge that any confidentiality agreements heretofore executed between or among the Parties and the RSA  will each continue in full force and effect.

(b)       Notwithstanding anything to the contrary in the Plan (including any amendments, supplements or modifications thereto) or the Confirmation Order (and any amendments, supplements or modifications thereto) or an affirmative vote to accept the First Amended Plan submitted by any Equity Commitment Party, nothing contained in the Plan (including any amendments, supplements or modifications thereto) or Confirmation Order (including any amendments, supplements or modifications thereto) shall alter, amend or modify the rights of the Equity Commitment Parties under this Agreement unless such alteration, amendment or modification has been made in accordance with Section 11.7.

Section 11.4        Governing Law; Venue.   THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH (a) THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD FOR ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD APPLY THE LAWS OF ANY OTHER JURISDICTION, AND (b) TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE. THE PARTIES CONSENT AND AGREE THAT ANY ACTION TO ENFORCE THIS AGREEMENT OR ANY DISPUTE, WHETHER SUCH DISPUTES ARISE IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE BANKRUPTCY COURT (OR, SOLELY TO THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER SUCH ACTION OR DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY). THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT (OR, SOLELY TO THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER SUCH ACTION OR DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY). EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, (ii) SUCH PARTY OR SUCH PARTY’S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY THE BANKRUPTCY COURT OR (iii) ANY LITIGATION OR OTHER PROCEEDING COMMENCED IN THE BANKRUPTCY COURT IS BROUGHT IN AN INCONVENIENT FORUM (OR, IN EACH CASE, SOLELY TO THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER SUCH ACTION OR DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY). THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.

Section 11.5       Waiver of Jury Trial.   EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG THE PARTIES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE.

Section 11.6        Counterparts.   This Agreement may be executed in any number of counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to each other Party (including via facsimile or other electronic transmission), it being understood that each Party need not sign the same counterpart. Any facsimile or electronic signature shall be treated in all respects as having the same effect as having an original signature.

Section 11.7        Waivers and Amendments; Rights Cumulative; Consent.   This Agreement may be amended, restated, modified or changed only by a written instrument (with email being sufficient) delivered by the Debtors and the Required Equity Commitment Parties; provided that, in addition, (a) any proposed amendment that would decrease the Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment), Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), share of the Backstop Commitment Premium, or share of the Backstop Commitment Termination Premium of a BrandCo Lender Equity Commitment Party in connection with a pro rata reduction among all BrandCo Lender Equity Commitment Parties (at the time directly preceding such amendment) shall require the prior written consent (with email being sufficient) of the Supermajority Equity Commitment Parties; (b) any proposed amendment that would decrease Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment), Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), share of the Backstop Commitment Premium, or share of the Backstop Commitment Termination Premium of a 2016 Lender Equity Commitment Party in connection with a pro rata reduction among all 2016 Lender Equity Commitment Parties (at the time directly preceding such amendment) shall require the prior written consent (with email being sufficient) of the Required Consenting 2016 Lenders;  (c) any proposed modification, amendment, waiver or supplement that would, directly or indirectly, (i) increase an Equity Commitment Party’s Purchase Price in respect of its Rights Offering Shares, (ii) increase an Equity Commitment Party’s Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment) or Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), (iii) decrease the Backstop Commitment Percentage (which, for the avoidance of doubt, includes the Backstop Commitment), Direct Allocation Percentage (which, for the avoidance of doubt, includes the Direct Allocation Commitment), share of the Backstop Commitment Premium, or share of the Backstop Commitment Termination Premium (A) of a BrandCo Lender Equity Commitment Party on a non-pro rata basis vis-à-vis the other BrandCo Lender Equity Commitment Parties or (B) of a 2016 Lender Equity Commitment Party vis-à-vis the other 2016 Lender Equity Commitment Parties (in each case, at the time directly preceding such amendment); (iv) otherwise disproportionately and materially adversely affect a BrandCo Lender Equity Commitment Party vis-à-vis the other BrandCo Lender Equity Commitment Parties or a 2016 Lender Equity Commitment Party vis-à-vis the other 2016 Lender Equity Commitment Parties; or (v) modify a Significant Term shall require the prior written consent (with email being sufficient) of each affected Equity Commitment Party; and (d) any proposed modification, amendment, waiver or supplement that would materially, disproportionately and adversely affect the 2016 Lender Equity Commitment Parties vis-à-vis the BrandCo Lender Equity Commitment Parties (including on account of any modification to the Consenting 2016 Lender Significant Terms) shall require the consent of the Required Consenting 2016 Lenders.

Notwithstanding the foregoing, Schedule 2.1 and Schedule 2.2 shall be revised as necessary without requiring a written instrument to reflect conforming changes in the composition of the Equity Commitment Parties and Backstop Commitment Percentages as a result of Transfers of any applicable Funding Commitments permitted and consummated in compliance with the terms and conditions of this Agreement.

The terms and conditions of this Agreement (other than the conditions set forth in Section 8.1 and Section 8.4, the waiver of which shall be governed solely by Article VIII) may be waived (a) by the Debtors only by a written instrument executed by the Debtors and (b) by the Required Equity Commitment Parties only by a written instrument executed by the Required Equity Commitment Parties.

No delay on the part of any Party in exercising any right, power or privilege pursuant to this Agreement will operate as a waiver thereof, nor will any waiver on the part of any Party of any right, power or privilege pursuant to this Agreement, nor will any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party hereto otherwise may have at law or in equity.

Section 11.8        Headings.   The headings in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.

Section 11.9       Specific Performance.   The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions, including pursuant to an order of the Bankruptcy Court or other court of competent jurisdiction, without the necessity of posting a bond to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Unless otherwise expressly stated in this Agreement, no right or remedy described or provided in this Agreement is intended to be exclusive or to preclude a Party from pursuing other rights and remedies to the extent available under this Agreement, at law or in equity.

Section 11.10      Damages.   Notwithstanding anything to the contrary in this Agreement, none of the Parties will be liable for, and none of the Parties shall claim or seek to recover, any punitive, special, indirect or consequential damages or damages for lost profits in connection with the breach or termination of this Agreement.

Section 11.11      No Reliance.   No Equity Commitment Party or any of its Related Parties shall have any duties or obligations to the other Equity Commitment Parties in respect of this Agreement, the Plan or the transactions contemplated hereby or thereby, except those expressly set forth herein. Without limiting the generality of the foregoing, (a) no Equity Commitment Party or any of its Related Parties shall be subject to any fiduciary or other implied duties to the other Equity Commitment Parties, (b) no Equity Commitment Party or any of its Related Parties shall have any duty to take any discretionary action or exercise any discretionary powers on behalf of any other Equity Commitment Party, (c) no Equity Commitment Party or any of its Related Parties shall have any duty to the other Equity Commitment Parties to obtain, through the exercise of diligence or otherwise, to investigate, confirm, or disclose to the other Equity Commitment Parties any information relating to the Debtors that may have been communicated to or obtained by such Equity Commitment Party or any of its Affiliates in any capacity, (d) no Equity Commitment Party may rely, and confirms that it has not relied, on any due diligence investigation that any other Equity Commitment Party or any Person acting on behalf of such other Equity Commitment Party may have conducted with respect to the Debtors or any of their Affiliates or any of their respective securities, and (e) each Equity Commitment Party acknowledges that no other Equity Commitment Party is acting as a placement agent, initial purchaser, underwriter, broker or finder with respect to its Unsubscribed Shares or Backstop Commitment Percentage of its Backstop Commitment.

Section 11.12      Settlement Discussions.   This Agreement and the transactions contemplated herein are part of a proposed settlement of a dispute between the Parties. Nothing herein shall be deemed an admission of any kind. Pursuant to Section 408 of the U.S. Federal Rule of Evidence and any applicable state rules of evidence, this Agreement and all negotiations relating thereto shall not be admissible into evidence in any Legal Proceeding, except to the extent filed with, or disclosed to, the Bankruptcy Court in connection with the Chapter 11 Cases (other than a Legal Proceeding to approve or enforce the terms of this Agreement). The Parties agree that any valuations of Holdings’ or other Debtor’s assets or estates, whether implied or otherwise, arising from this Agreement shall not be binding for any other purpose, including determining recoveries under the Plan, and that this Agreement does not limit the Parties’ rights regarding valuation in the Chapter 11 Cases.

Section 11.13      No Recourse.   Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Parties may be partnerships or limited liability companies, each Party covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any Party’s Affiliates or any of the respective Related Parties of such Party or of the Affiliates of such Party (in each case other than the Parties to this Agreement and each of their respective successors and permitted assignees under this Agreement), whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of such Related Parties, as such, for any obligation or liability of any Party under this Agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided, however, that nothing in this Section 11.13 shall relieve or otherwise limit the liability of any Party hereto or any of their respective successors or permitted assigns for any breach or violation of its obligations under this Agreement or such other documents or instruments. For the avoidance of doubt, none of the Parties will have any recourse, be entitled to commence any proceeding or make any claim under this Agreement or in connection with the transactions contemplated hereby except against any of the Parties or their respective successors and permitted assigns, as applicable.

Section 11.14      Severability.   In the event that any one or more of the provisions contained in this Agreement are held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein will not be in any way impaired thereby, it being intended that all of the rights and privileges of the parties hereto will be enforceable to the fullest extent permitted by law.

Section 11.15      Enforceability of Agreement.  Each of the Parties waives any right to assert that the exercise of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code, and expressly stipulates and consents hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, to the extent the Bankruptcy Court determines that such relief is required.