The RSA contains certain covenants on the part of the Master Fund, the Issuer, and the other
Senior Noteholders party to the RSA, including that the Master Fund and the other Senior Noteholders vote in favor of the Plan. The RSA also provides for termination by the parties upon the occurrence of certain events.
The foregoing summary of the Restructuring Support Agreement is qualified in its entirety by reference to the Restructuring Support Agreement,
a copy of which is filed as Exhibit 2 hereto and incorporated by reference herein.
Backstop Commitment Agreement
On August 2, 2019 the Master Fund entered into a backstop commitment agreement (the
BCA
) with the Issuer and certain
other holders of the Senior Notes, pursuant to which the Master Fund, along with the other holders party to the BCA (the
Backstop Parties
), agreed to backstop the Senior Noteholder Rights Offering. The BCA is subject to Bankruptcy
Court approval.
Pursuant to the BCA, the Master Fund and the other Backstop Parties have committed to (i) exercise their respective
rights to purchase their pro rata share of the New Common Shares available to be purchased in the Senior Noteholder Rights Offering and (ii) backstop the aggregate Senior Noteholder Rights Offering and purchase the New Common Shares available
in the Senior Noteholder Rights Offering to the extent unsubscribed.
In consideration of each Backstop Partys backstop commitment,
each Backstop Party shall be entitled to receive its pro rata share (the
Backstop Commitment Premium
) of either (i) on the Effective Date, in the form of New Common Shares, 6% of the aggregate amount of the Senior Noteholder
Rights Offering issued at a price per share equal to the price per share offered to Senior Noteholders in the Senior Noteholder Rights Offering, or (ii) if the BCA is terminated due to a material breach of the BCA by the Issuer, a cash payment
equal to 6% of the aggregate amount of the Senior Noteholder Rights Offering.
The Master Funds and the Backstop Parties obligation
to backstop the Senior Noteholder Rights Offering, and the other transactions contemplated by the BCA, are conditioned upon the satisfaction (or waiver) of all conditions to the effectiveness of the Plan, and other conditions precedent set forth in
the BCA, including Bankruptcy Court approval of the BCA. The BCA may be terminated upon the occurrence of certain events, including termination of the RSA and material, uncured breaches by the parties under the BCA.
The foregoing summary of the Backstop Commitment Agreement is qualified in its entirety by reference to the Restructuring Support Agreement, a
copy of which is filed as Exhibit 3 hereto and incorporated by reference herein.
Joint
Secured-in-Possession
Credit Agreement
In connection with the Issuers bankruptcy filing
and pursuant to an order of the Bankruptcy Court dated August 9, 2019, the Master Fund entered into a Junior Secured
Debtor-In-Possession
Credit Agreement with
certain the Issuer and certain other holders of the Issuers Senior Notes, as lenders, and Wilmington Trust, National Association, as administrative agent (the
DIP Credit Agreement
).
Under the DIP Credit Agreement, the Master Fund and the other lenders have made available a $35.0 million
debtor-in-possession
junior secured term credit facility (the
DIP Facility
, and the loans thereunder, the
DIP Loans
), of which
$25.0 was extended as an initial loan and the remainder of which will be available to the Issuer as a single delayed draw term loan following the entry of the final
debtor-in-possession
orders of the Bankruptcy Court.
The
foregoing summary of the Joint
Secured-in-Possession
Credit Agreement is qualified in its entirety by reference to the Restructuring Support Agreement, a copy of which
is filed as Exhibit 4 hereto and incorporated by reference herein.
Swaps
The Master Fund has entered into certain cash-settled total return swap agreements with several unaffiliated third party financial institutions
as the respective counterparties (the
Swap Agreements
). The swaps with the third parties constitute economic exposure to an aggregate of 16,033,937 notional shares, representing approximately 9.8% of the outstanding shares of
Common Stock.