Issuers common stock with unvested warrants to purchase Trust Certificates, each of which represents one PPN. Accordingly, following the effectiveness of the Restructuring, the Reporting
Persons will no longer own securities of the Issuer but will instead own securities that entitle the holder to receive distributions made by the Company.
The Trust Certificates will be issued pursuant to a Grantor Trust Agreement between the Issuer, as grantor, and a Cayman Islands trust company, as trustee
(the Grantor Trust Trustee). Each Trust Certificate will represent one PPN having a principal amount equal to the greater of (i) the closing price of the Issuers common stock immediately preceding the Issuers bankruptcy
filing or (ii) the closing price of the Issuers common stock immediately preceding the Restructuring closing date. The Grantor Trust Trustee will hold the PPNs underlying the Trust Certificates and the investors will have rights as
provided in the Grantor Trust Agreement.
The PPNs, which underlie the Trust Certificates, will be deposited by the Company with the Grantor Trust
Trustee, which will issue an equal number of Trust Certificate(s) to the holders thereof. Upon the maturity of the PPNs 100 years after the Restructuring closing date (the Final Maturity Date), the Company will be obligated to repay the
unpaid principal balance of the PPNs, together with any applicable distributions thereon. Upon receipt of the proceeds of the PPNs, the paying agent in respect of the Trust Certificates will pay holders of the Trust Certificates the cash receipts
and other distributions it receives in respect of the PPNs, after deducting fees and expenses applicable to the Grantor Trust.
The Company will be
required to redeem the outstanding PPNs on a pro rata basis for cash at a price equal to the unpaid principal balance thereof, plus any applicable distributions thereon, plus any call premium associated with such redemption, upon the earlier of
(i) the Final Maturity Date; (ii) the acceleration of all obligations under the PPNs following the occurrence of an Event of Default; and (iii) a Deemed Liquidation (as defined in the Plan Term Sheet). Upon receipt of such redemption
proceeds, the paying agent in respect of the Trust Certificates will redeem a pro rata portion of the Trust Certificates and pay holders of such Trust Certificates the cash receipts and other distributions it receives in respect of the redemption of
the PPNs, after deducting fees and expenses applicable to the Grantor Trust.
The RSA provides for certain milestones requiring, among other things, that
the Issuer (i) commence the Plan on or before October 16, 2020 and promptly file the Plan and related Disclosure Statement (as defined in the RSA) within one business day thereafter; (ii) obtain the Bankruptcy Courts approval of
the Disclosure Statement on or before November 16, 2020; (iii) obtain the Bankruptcy Courts approval of the Confirmation Order (as defined in the RSA), as well as of the terms of the RSA, on or before December 18, 2020; and
(iv) unless the RSA is terminated in accordance with its terms, obtain the Required Supporting Noteholders (as defined in the RSA) acceptance of the documents governing the Restructuring on or prior to the commencement of the Confirmation
Hearing (as defined in the RSA). The Required Supporting Noteholders may terminate the RSA if the Issuer fails to achieve these milestones, or if certain other events occur, including if the Plan does not become effective by December 31, 2020.
The Issuer may terminate the RSA upon the occurrence of certain breaches by the Supporting Noteholders or if the Plan does not become effective by December 31, 2020. The parties may also mutually agree to terminate the RSA.
The RSA contains certain covenants on the part of each of the Issuer and the Supporting Noteholders, including, subject to the terms of the RSA, commitments
by the Supporting Noteholders to vote all of their claims and interests in favor of the Plan and limitations on each of the Supporting Noteholders ability to, among other things, (i) make claims against the Issuer in a manner inconsistent
with the RSA; (ii) enforce defaults and Events of Default under the Senior Notes Indenture and the Senior Notes; and (iii) transfer (including by depositing into a voting trust, granting proxies or entering into a voting agreement) its
claims against or interests in the Issuer unless such transferee agrees to be bound by the RSA. The RSA requires the Issuer to, among other things, (i) use its reasonable best efforts to implement the Restructuring; (ii) notify the
Supporting Noteholders of certain events affecting the Restructuring, including the Issuers breach of the RSA and certain governmental or third-party communications; (iii) pay certain professional fees and expenses of the Supporting
Noteholders in connection with the Restructuring; and (iv) provide copies of material documents related to the Restructuring to the Supporting Noteholders and their professionals. The parties to the RSA agree to negotiate in good faith to
finalize the documents and agreements governing the Restructuring.
The foregoing description of the RSA is a summary only and is qualified in its
entirety by the terms and conditions of the RSA, which is filed as Exhibit 10.1 to the Issuers Current Report on Form 8-K filed with the SEC on October 15, 2020 (the Form 8-K) and is incorporated by reference herein. For a more detailed discussion of the contemplated Restructuring, see the Form 8-K.
Item 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Original Schedule 13D is hereby amended and supplemented by the addition of the following:
Exhibit 99.11 Restructuring Support Agreement (Senior Notes), dated as of October 14, 2020, by and among the Issuer and the other parties
thereto (incorporated by reference to Exhibit 10.1 of the Issuers Current Report on Form 8-K filed with the SEC on October 15, 2020)
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