UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re:
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)
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Chapter 11
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)
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TERRESTAR CORPORATION, et al.,1
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)
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Case No. 11-10612 (SHL)
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)
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Debtors.
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)
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Jointly Administered
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)
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SECOND AMENDED DISCLOSURE STATEMENT FOR THE SECOND AMENDED JOINT CHAPTER 11 PLAN OF TERRESTAR CORPORATION, MOTIENT COMMUNICATIONS INC., MOTIENT HOLDINGS INC., MOTIENT LICENSE INC., MOTIENT SERVICES INC., MOTIENT VENTURES HOLDING INC.,
MVH HOLDINGS INC., TERRESTAR HOLDINGS INC. AND TERRESTAR NEW YORK INC.
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IMPORTANT INFORMATION FOR YOU TO READ
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SPECIAL NOTICE REGARDING FEDERAL AND STATE SECURITIES LAWS
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QUESTIONS AND ADDITIONAL INFORMATION
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I. EXECUTIVE SUMMARY
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1
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A.
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Overview of this Disclosure Statement and the Executive Summary
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1
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B.
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Purpose and Effect of the Plan
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1
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C.
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Summary of Treatment of Claims and Equity Interests and Description of Recoveries Under the Plan
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2
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D.
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Voting Deadline
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12
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E.
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Procedures for Voting on the Plan
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12
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F.
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Additional Plan-related Documents
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13
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II. IMPORTANT INFORMATION ABOUT THIS DISCLOSURE STATEMENT
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14
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III. QUESTIONS AND ANSWERS REGARDING THIS DISCLOSURE STATEMENT AND THE PLAN
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15
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A.
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What is Chapter 11?
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15
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B.
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Why are the TSC Debtors sending me this Disclosure Statement?
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15
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C.
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Am I entitled to vote on the Plan? What will I receive from the TSC Debtors if the Plan is consummated?
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15
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D.
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If the Plan provides that I get a distribution, do I get it upon Confirmation or when the Plan goes effective, and what do you mean when you refer to “Confirmation,” the “Effective Date” and “consummation”?
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15
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E.
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If the Plan applies solely to the TSC Debtors, what happens to a claim I may have against a related debtor not included in the Plan?
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16
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F.
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What is included in the solicitation packages to be sent to creditors who are eligible to vote on the Plan?
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16
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G.
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What is the deadline to vote on the Plan?
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16
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H.
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How do I vote for or against the Plan?
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16
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I.
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When is the Confirmation Hearing set to occur?
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17
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J.
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What is the deadline to object to Confirmation?
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17
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K.
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What is the effect of Confirmation on the TSC Debtors’ ongoing business?
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18
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L.
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Do the TSC Debtors recommend voting in favor of the Plan?
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18
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IV. THE TSC DEBTORS’ HISTORY
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18
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A.
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Company Overview
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18
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B.
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The TSC Debtors’ Business Operations
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19
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C.
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The TSC Debtors’ Organizational Structure
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22
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D.
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The TSC Debtors’ Pre-petition Capital Structure
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23
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E.
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Pre-petition Litigation
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24
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V. EVENTS LEADING TO COMMENCEMENT OF THE CHAPTER 11 CASES
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26
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VI. INITIAL MOTIONS OF THE CHAPTER 11 CASES AND CERTAIN RELATED RELIEF
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27
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A.
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“First-Day” Motions and Related Relief
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27
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B.
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Debtor-in-Possession Financing
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28
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VII. DEVELOPMENTS DURING THE CHAPTER 11 CASES
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29
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A.
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Appointment of the Statutory Committee
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29
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B.
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The Claims Process
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29
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C.
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Exclusivity
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32
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D.
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The TSC Debtors’ Licenses and Related Applications
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33
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E.
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Management Compensation Program
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33
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F.
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Requests to Appoint an Official Equity Committee
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34
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G.
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Request to Appoint an Examiner
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34
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H.
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Ownership of Preferred Series A and B TSC Interests
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34
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VIII. DESCRIPTION OF THE JOINT PLAN OF REORGANIZATION
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35
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A.
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General Rules of Classification
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35
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B.
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Summary of Classification
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35
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C.
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Treatment of Claims and Equity Interests
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36
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D.
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Settlement, Release, Injunction and Related Provisions
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41
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IX. SOLICITATION AND VOTING PROCEDURES
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46
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A.
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Holders of Claims and Equity Interests Entitled To Vote on the Plan
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46
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B.
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Voting Record Date
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48
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C.
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Voting on the Plan
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48
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D.
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Ballots Not Counted
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49
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X. CONFIRMATION OF THE PLAN
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49
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A.
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The Confirmation Hearing
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49
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B.
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Deadline to Object to Confirmation of the Plan
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49
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C.
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Confirmation Hearing
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50
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D.
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Requirements for Confirmation of the Plan
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50
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E.
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Best Interests of Creditors/Liquidation Analysis
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51
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F.
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Feasibility/Financial Projections
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51
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G.
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Acceptance by Impaired Classes
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52
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H.
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Confirmation Without Acceptance by All Impaired Classes/Fair and Equitable Test
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52
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I.
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Valuation of the TSC Debtors
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53
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J.
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Effect of Confirmation and Consummation of the Plan
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54
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XI. RISK FACTORS
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54
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A.
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Risks Related to Confirmation of the Plan
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54
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B.
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Risks That May Affect the Value of the Securities to Be Issued Under the Plan
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56
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C.
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Risks Related to the TSC Debtors’ Businesses
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57
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D.
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Risks Relating to Government Regulations
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59
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E.
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Risks Relating to Forward-Looking Statements
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60
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F.
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Risks Relating to Recoveries Under the Plan
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61
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G.
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Disclosure Statement Disclaimer
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62
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XII. APPLICATION OF SECURITIES LAWS
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64
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A.
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Issuance and Resale of Securities Under the Plan
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64
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B.
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New Common Stock and New TSC Notes
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65
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XIII. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN
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66
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A.
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Certain U.S. Federal Income Tax Consequences to the Reorganized TSC Debtors
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67
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B.
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Certain U.S. Federal Income Tax Consequences to the U.S. Holders Under the Plan
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69
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C.
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General U.S. Federal Income Tax Consequences to Non-U.S. Holders
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73
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D.
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Importance of Obtaining Professional Tax Assistance
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74
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XIV. RECOMMENDATION
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75
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EXHIBIT A
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Plan
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EXHIBIT B
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Disclosure Statement Order
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EXHIBIT C
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Organizational Chart of the TSC Debtors and their Non-TSC Debtor Affiliates
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EXHIBIT D
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Liquidation Analysis
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EXHIBIT E
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Financial Projections
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EXHIBIT F
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Valuation Analysis
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EXHIBIT G
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New TSC Notes Term Sheet
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THE TSC DEBTORS HEREBY ADOPT AND INCORPORATE EACH EXHIBIT ATTACHED TO THIS
DISCLOSURE STATEMENT BY REFERENCE AS THOUGH FULLY SET FORTH HEREIN.
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A.
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Overview of this Disclosure Statement and the Executive Summary
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B.
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Purpose and Effect of the Plan
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ACCORDINGLY, FOR ALL OF THESE REASONS AND THE OTHER REASONS
DESCRIBED IN THIS DISCLOSURE STATEMENT, THE TSC DEBTORS URGE YOU
TO RETURN YOUR BALLOT ACCEPTING THE PLAN BY THE VOTING DEADLINE.
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C.
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Summary of Treatment of Claims and Equity Interests and Description of Recoveries Under the Plan
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(i)
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Summary of Classification of Claims and Equity Interests Under the Plan
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Class
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Name of Class
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Status
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Description of Class
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1
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Other Priority Claims
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Unimpaired
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Class 1 consists of Other Priority Claims against each of the TSC Debtors.
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2
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Other Secured Claims
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Unimpaired
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Class 2 consists of Other Secured Claims against each of the TSC Debtors.
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3a
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Bridge Loan Claims Against TSC
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Impaired
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Class 3a consists of the Bridge Loan Claims that may exist against TSC.
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3b
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Bridge Loan Claims Against TS Holdings
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Impaired
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Class 3b consists of the Bridge Loan Claims that may exist against TS Holdings.
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4a
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Unsecured Claims Against TSC
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Impaired
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Class 4a consists of the Unsecured Claims that may exist against TSC.
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4b
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Unsecured Claims Against TS Holdings
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Impaired
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Class 4b consists of the Unsecured Claims that may exist against TS Holdings.
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4c
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Unsecured Claims Against MVH Holdings Inc.
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Impaired
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Class 4c consists of the Unsecured Claims that may exist against MVH Holdings Inc.
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4d
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Unsecured Claims Against Motient Ventures Holding Inc.
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Impaired
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Class 4d consists of the Unsecured Claims that may exist against Motient Ventures Holding Inc.
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4e
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Unsecured Claims Against Motient Holdings Inc.
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Impaired
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Class 4e consists of the Unsecured Claims that may exist against Motient Holdings Inc.
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4f
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Unsecured Claims Against Motient Communications Inc.
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Impaired
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Class 4f consists of the Unsecured Claims that may exist against Motient Communications Inc.
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4g
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Unsecured Claims Against Motient Services Inc.
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Impaired
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Class 4g consists of the Unsecured Claims that may exist against Motient Services Inc.
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4h
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Unsecured Claims Against Motient License Inc.
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Impaired
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Class 4h consists of the Unsecured Claims that may exist against Motient License Inc.
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4i
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Unsecured Claims Against TerreStar New York Inc.
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Impaired
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Class 4i consists of the Unsecured Claims that may exist against TerreStar New York Inc.
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5
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Convenience Claims
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Unimpaired
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Class 5 consists of the Convenience Claims that may exist against TSC and TS Holdings.
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Class
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Name of Class
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Status
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Description of Class
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6
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Sprint Settlement Claim
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Impaired
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Class 6 consists of the Sprint Settlement claim that may exist against TSC.
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7
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Intercompany Claims
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Unimpaired
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Class 7 consists of all Intercompany Claims that may exist against a particular TSC Debtor.
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8a
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Preferred Series A TSC Interests
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Impaired
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Class 8a consists of Preferred Series A TSC Interests.
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8b
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Preferred Series B TSC Interests
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Impaired
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Class 8b consists of Preferred Series B TSC Interests.
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8c
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Preferred Series C TSC Interests
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Impaired
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Class 8c consists of Preferred Series C TSC Interests.
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8d
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Preferred Series D TSC Interests
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Impaired
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Class 8d consists of Preferred Series D TSC Interests.
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8e
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Preferred Series E TSC Interests
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Impaired
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Class 8e consists of Preferred Series E TSC Interests.
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9a
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Other TSC Equity Interests
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Impaired
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Class 9a consists of Other TSC Equity Interests.
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9b
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Other Equity Interests in TS Holdings
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Unimpaired
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Class 9b consists of Other Equity Interests in TS Holdings.
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9c
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Other Equity Interests in MVH Holdings Inc.
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Unimpaired/
Impaired
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Class 9c consists of Other Equity Interests in MVH Holdings Inc.
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9d
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Other Equity Interests in Motient Ventures Holding Inc.
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Unimpaired/
Impaired
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Class 9d consists of Other Equity Interests in Motient Ventures Holding Inc.
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9e
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Other Equity Interests in Motient Holdings Inc.
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Unimpaired/
Impaired
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Class 9e consists of Other Equity Interests in Motient Holdings Inc.
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9f
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Other Equity Interests in Motient Communications Inc.
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Unimpaired/
Impaired
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Class 9f consists of Other Equity Interests in Motient Communications Inc.
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9g
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Other Equity Interests in Motient Services Inc.
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Unimpaired/
Impaired
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Class 9g consists of Other Equity Interests in Motient Services Inc.
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9h
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Other Equity Interests in Motient License Inc.
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Unimpaired/
Impaired
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Class 9h consists of Other Equity Interests in Motient License Inc.
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9i
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Other Equity Interests in TerreStar New York Inc.
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Unimpaired/
Impaired
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Class 9i consists of Other Equity Interests in TerreStar New York Inc.
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·
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Allowed Administrative and Allowed Priority Tax Claims. Administrative Claims include Claims for costs and expenses of administration of the TSC Debtors’ Chapter 11 Cases pursuant to Bankruptcy Code section 503(b), 507(a)(2) or 507(b). Priority Tax Claims include any Claim of a governmental unit, as defined in Bankruptcy Code section 101(27), of the kind specified in Bankruptcy Code section 507(a)(8).
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·
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Allowed DIP Claims. DIP Claims include Claims derived from or based upon the DIP Loan Agreement, including, without limitation, Claims for principal, interest, fees or expenses. As discussed in section VI.B below, TSC has repaid the DIP Facility in full as of January 3, 2012.
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·
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Payment of Statutory Fees. Statutory fees include all U.S. Trustee quarterly fees payable under 28 U.S.C. § 1930(a)(6), plus interest due and payable under 31 U.S.C. § 3717, on all disbursements, including Plan payments and disbursements in and outside the ordinary course of the TSC Debtors’ businesses, until the entry of an order closing the Chapter 11 Cases pursuant to Bankruptcy Code section 350(a), dismissal of the Chapter 11 Cases or conversion of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code.
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(ii)
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Summary of Treatment, Estimated Range of Recoveries and Voting Rights of Claims and Equity Interests Under the Plan
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SUMMARY OF STATUS, TREATMENT AND RECOVERY
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Class
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Status
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Voting Rights
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Plan Treatment of Class
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Estimated
Recovery
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Estimated
Amount of
Claims4
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1
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Unimpaired
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No (deemed to accept)
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Except to the extent that a holder of an Allowed Other Priority Claim (i) has been paid by the applicable TSC Debtor, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable treatment, each holder of an Allowed Other Priority Claim shall receive from the TSC Debtor that is obligated on such Other Priority Claim, in full satisfaction, settlement, release and discharge of, and in exchange for such Other Priority Claim, Cash in the full amount of such Allowed Other Priority Claim.
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100%
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$0
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2
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Unimpaired
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No (deemed to accept)
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Except to the extent that a holder of an Allowed Other Secured Claim agrees to a less favorable treatment, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Other Secured Claim, each holder of an Allowed Other Secured Claim shall, at the option of the TSC Debtors (with the reasonable consent of each of the Designated Holders), be paid: (i) in Cash in full on the first Distribution Date after such claim becomes due and payable in the ordinary course of business or (ii) in Cash on such other terms and conditions as may be agreed between the holder of such claim and the TSC Debtors.
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100%
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$0
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Class
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Status
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Voting Rights
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Plan Treatment of Class
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Estimated
Recovery
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Estimated
Amount of
Claims4
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3a – 3b
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Impaired
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Yes
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Except to the extent that a holder of an Allowed Bridge Loan Claim agrees to a less favorable treatment, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Bridge Loan Claim, each holder of an Allowed Bridge Loan Claim shall be paid in Cash within two Business Days after the Effective Date in an amount equal to such Bridge Loan Claim less any interest that has accrued pursuant to Section 2.8(c) of the Bridge Loan Agreement solely as a result of a continuing default thereunder.
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98%
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3a: $4.23M
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3b: $4.23M
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4a – 4b
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Impaired
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Yes
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Except to the extent that a holder of an Allowed Unsecured Claim in Classes 4a and 4b agrees to a less favorable treatment, each holder of an Allowed Unsecured Claim in Class 4a or 4b shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Unsecured Claim in Class 4a or 4b, its Pro Rata share (calculated with reference to all Allowed Unsecured Claims in Classes 4a and 4b) of New TSC Notes in an aggregate amount such that each holder of an Allowed Unsecured Claim in Class 4a or 4b receives a 100% recovery on account of such Allowed Unsecured Claim in Class 4a or 4b, including post-petition interest at the federal judgment rate.
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100%
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4a: $27M – $32.5M5
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4b: $350K – $1.8M
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Class
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Status
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Voting Rights
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Plan Treatment of Class
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Estimated
Recovery
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Estimated
Amount of
Claims4
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4c – 4i
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Impaired
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Yes
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Except to the that extent a holder of an Allowed Unsecured Claim in Classes 4c – 4i agrees to a less favorable treatment, to the extent that any holder of an Allowed Unsecured Claim in Classes 4c – 4i is also the holder of an Allowed Unsecured Claim in Class 4a or 4b arising out of the same agreement, transaction or circumstance, such Claim shall be satisfied in full by TSC or TS Holdings, as applicable, in accordance with the terms of the Plan, provided, however, that each holder of an Allowed Unsecured Claim in Classes 4c – 4i that (a) is not also the holder of an Allowed Unsecured Claim in Class 4a or 4b arising out of the same agreement, transaction or circumstance or (b) is the holder of an Allowed Unsecured Claim in Class 4a or 4b, but such Allowed Unsecured Claim in Classes 4c – 4i is greater in amount than such Allowed Unsecured Claim in Class 4a or 4b, shall, at the option of the applicable TSC Debtor, with the reasonable consent of each of the Designated Holders, receive: (i) payment in Cash in full, including post-petition interest at the federal judgment rate, on the first Distribution Date after such Claim becomes due and payable in the ordinary course of business or (ii) its Pro Rata share of the equity of the reorganized entity corresponding to such Allowed Unsecured Claim.
For the avoidance of doubt, with respect to Allowed Class 4c – 4i Unsecured Claims, to the extent that Cash is distributed to any of the Other TSC Debtors pursuant to the TSN Debtors’ chapter 11 plan, such Cash will be used to satisfy such Allowed Class 4c – 4i Unsecured Claims, as applicable; provided, however, that, to the extent that any TSC Debtor(s) advance(s) Cash to any of the Other TSC Debtors to satisfy Allowed Class 4c – 4i Unsecured Claims prior to any of the Other TSC Debtors’ receipt of any distribution pursuant to the TSN Debtors’ chapter 11 plan, any such distribution pursuant to the TSN Debtors’ chapter 11 plan will be paid over to such TSC Debtor(s) in repayment of such Cash advance(s).
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0% - 100%
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4c: $0M –
$1.7M
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4d: $0M –
$1.7M
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|||||
4e: $0M –
$1.7M
|
|||||
4f: $10K – $3.3M
|
|||||
4g: $0M –
$1.7M
|
|||||
4h: $0M –
$1.7M
|
|||||
4i: $0M –
$1.7M
|
Class
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Status
|
Voting Rights
|
Plan Treatment of Class
|
Estimated
Recovery
|
Estimated
Amount of
Claims4
|
5
|
Unimpaired
|
No (deemed to accept)
|
Except to the extent that a holder of an Allowed Convenience Claim (i) has been paid by TSC or TS Holdings, as applicable, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable treatment, each holder of an Allowed Convenience Claim shall receive, from TSC or TS Holdings, as applicable, in full satisfaction, settlement, release and discharge of, and in exchange for such Convenience Claim, Cash in the full amount of such Allowed Convenience Claim, including post-petition interest at the federal judgment rate, on the first Distribution Date after such Convenience Claim becomes Allowed.
|
100%
|
$62K
|
6
|
Impaired
|
Yes
|
The holder of the Sprint Settlement Claim shall receive, on the Effective Date, in full satisfaction, settlement, release and discharge of, and in exchange for the Sprint Settlement Claim, Cash in an amount equal to the difference (if any) between $2.6 million and the amount paid to Sprint by the TSN Debtors on account of the Intercompany Funding Claim pursuant to the terms of the Sprint Settlements, which amount shall be funded solely from any amount actually received by TSC on account of the Intercompany Funding Claim. In the event that the allowed amount of the Sprint Settlement Claim exceeds the total amount actually received by TSC on account of the Intercompany Funding Claim, the holder of the Sprint Settlement Claim shall receive in full satisfaction, settlement, release and discharge of, and in exchange for the Sprint Settlement Claim only Cash in an amount equal to the total amount actually received by TSC on account of the Intercompany Funding Claim.
|
N/A
|
$06
|
Class
|
Status
|
Voting Rights
|
Plan Treatment of Class
|
Estimated
Recovery
|
Estimated
Amount of
Claims4
|
7
|
Unimpaired
|
No (deemed to accept)
|
No distribution shall be made on account of Intercompany Claims. Except as otherwise determined by the TSC Debtors, with the consent of the Requisite Designated Holders, each Allowed Intercompany Claim shall be reinstated on the Effective Date. After the Effective Date, the Reorganized TSC Debtors shall have the right to resolve or compromise Disputed Intercompany Claims without approval of the Bankruptcy Court.
|
100%
|
TSC: $1.2M
|
TS Holdings: $0
|
|||||
MVH Holdings Inc.: $0
|
|||||
Motient Ventures Holding Inc.: $32.9M
|
|||||
Motient Holdings Inc.: $0
|
|||||
Motient Communications Inc.: $0
|
|||||
Motient Services Inc.: $0
|
|||||
Motient License Inc.: $0
|
|||||
TerreStar New York Inc.: $5,000
|
|||||
8a – 8b
|
Impaired
|
Yes
|
On the Effective Date, except to the extent a holder of an Allowed Preferred Series A TSC Interest or an Allowed Preferred Series B TSC Interest agrees to a less favorable treatment, each holder of an Allowed Preferred Series A TSC Interest or an Allowed Preferred Series B TSC Interest shall receive its Pro Rata share (calculated with reference to all Allowed Preferred Series A and B TSC Interests) of the New Common Stock. On the Effective Date, all Preferred Series A TSC Interests and Preferred Series B TSC Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise.
|
4.3% - 45.1%
|
8a: $90M7
|
8b: $318.5M8
|
Class
|
Status
|
Voting Rights
|
Plan Treatment of Class
|
Estimated
Recovery
|
Estimated
Amount of
Claims4
|
8c – 8e
|
Impaired
|
No (deemed to reject)
|
On the Effective Date, all Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distribution to the holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests.
|
0%
|
N/A
|
9a
|
Impaired
|
No (deemed to reject)
|
On the Effective Date, all Other TSC Equity Interests shall be deemed canceled and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distribution to the holders of Other TSC Equity Interests.
|
0%
|
N/A
|
9b – 9i
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
In full satisfaction, settlement, release and discharge of and in exchange for the Reorganized TSC Debtors’ agreement to make distributions, if any, to the holders of Allowed Unsecured Claims and Other Equity Interests under the Plan, to provide management services to certain other Reorganized TSC Debtors and to use certain funds and assets, to the extent authorized in the Plan, to satisfy certain obligations between and among such Reorganized TSC Debtors, each and every Other Equity Interest in Classes 8b – 8i shall, subject to any Restructuring Transaction, at the option of the Reorganized TSC Debtors (in consultation with the Designated Holders), either (i) be retained, in which case the TSC Debtor holding such Other Equity Interests shall continue to hold such Other Equity Interests, and the legal, equitable and contractual rights to which the holders of such Other Equity Interests are entitled shall remain unaltered or (ii) be cancelled and new Other Equity Interests in the applicable Other TSC Debtor shall be issued pursuant to the Plan to the Reorganized TSC Debtor that holds such Other Equity Interests. For the avoidance of doubt, if the holders of Allowed Unsecured Claims in Classes 4c – 4i receive the equity in the reorganized entity corresponding to their respective Allowed Unsecured Claim, the holders of the applicable 8c – 8i Other Equity Interests will receive no distribution.
|
0%
|
N/A
|
|
D.
|
Voting Deadline
|
|
E.
|
Procedures for Voting on the Plan
|
DELIVERY OF BALLOTS
|
Ballots must be actually received by the Voting and Claims Agent by the Voting Deadline of 5:00 p.m. (prevailing Eastern time) on February 24, 2012 at the following addresses:
|
Voting and Claims Agent:
If by mail:
TerreStar Corporation
c/o The Garden City Group, Inc.
P.O. Box 9680
Dublin, OH 43017-4980
If by hand or overnight courier:
TerreStar Corporation
c/o The Garden City Group, Inc.
5151 Blazer Parkway, Suite A
Dublin, OH 43017
The Voting and Claims Agent will not accept ballots submitted by facsimile or electronic means.
* * * * * * *
|
If you have any questions on the procedure for voting on the Plan, please call the Voting and Claims Agent at the following telephone number:
1-888-872-9182
|
|
F.
|
Additional Plan-related Documents
|
THE PLAN WILL BIND ALL HOLDERS OF CLAIMS AGAINST, AND EQUITY INTERESTS IN, THE TSC DEBTORS TO THE FULLEST EXTENT AUTHORIZED OR PROVIDED UNDER THE BANKRUPTCY CODE, INCLUDING SECTIONS 524 AND 1141 THEREOF, AND BY ALL OTHER APPLICABLE LAW.
|
|
A.
|
What is Chapter 11?
|
|
B.
|
Why are the TSC Debtors sending me this Disclosure Statement?
|
|
C.
|
Am I entitled to vote on the Plan? What will I receive from the TSC Debtors if the Plan is consummated?
|
|
D.
|
If the Plan provides that I get a distribution, do I get it upon Confirmation or when the Plan goes effective, and what do you mean when you refer to “Confirmation,” the “Effective Date” and “consummation”?
|
|
E.
|
If the Plan applies solely to the TSC Debtors, what happens to a claim I may have against a related debtor not included in the Plan?
|
|
F.
|
What is included in the solicitation packages to be sent to creditors who are eligible to vote on the Plan?
|
|
G.
|
What is the deadline to vote on the Plan?
|
|
H.
|
How do I vote for or against the Plan?
|
DELIVERY OF BALLOTS
|
Ballots must be actually received by the Voting and Claims Agent by the Voting Deadline of 5:00 p.m. (prevailing Eastern time) on February 24, 2012 at the following addresses:
|
Voting and Claims Agent:
If by mail:
TerreStar Corporation
c/o The Garden City Group, Inc.
P.O. Box 9680
Dublin, OH 43017-4980
If by hand or overnight courier:
TerreStar Corporation
c/o The Garden City Group, Inc.
5151 Blazer Parkway, Suite A
Dublin, OH 43017
The Voting and Claims Agent will not accept ballots submitted by facsimile or electronic means.
* * * * * * *
|
If you have any questions on the procedure for voting on the Plan, please call the Voting and Claims Agent at the following telephone number:
1-888-872-9182
|
|
I.
|
When is the Confirmation Hearing set to occur?
|
|
J.
|
What is the deadline to object to Confirmation?
|
|
K.
|
What is the effect of Confirmation on the TSC Debtors’ ongoing business?
|
|
L.
|
Do the TSC Debtors recommend voting in favor of the Plan?
|
|
A.
|
Company Overview
|
|
B.
|
The TSC Debtors’ Business Operations
|
|
C.
|
The TSC Debtors’ Organizational Structure
|
|
·
|
TS Holdings is a Delaware corporation that directly holds 100% of the interests in 1.4 Holdings. TS Holdings is a TSC Debtor in these proceedings.
|
|
·
|
1.4 Holdings is a Delaware limited liability company. 1.4 Holdings is a special purpose entity that holds the FCC licenses for the 1.4 Spectrum. There are a number of reasons the board of directors at 1.4 Holdings did not seek chapter 11 protection. First, 1.4 Holdings is a solvent entity. Second, 1.4 Holdings has only one significant creditor—One Dot Four, the counterparty to the Spectrum Lease—to which 1.4 Holdings owes fiduciary duties. If 1.4 Holdings had filed for chapter 11 relief and rejected the Spectrum Lease, then One Dot Four may have held a significant damages claim against 1.4 Holdings that could likely have resulted in no value remaining for distribution to the equity holders of 1.4 Holdings. Finally, if 1.4 Holdings were to file for chapter 11 relief, it may trigger One Dot Four’s right to purchase the 1.4 Spectrum pursuant to the Spectrum Lease. Accordingly, 1.4 Holdings is not a TSC Debtor in these proceedings.
|
|
·
|
TerreStar NY is a New York corporation that has no subsidiaries. TerreStar NY is a TSC Debtor in these proceedings.
|
|
·
|
Motient is a TSC Debtor in these proceedings and holds 100% of the interests in both Motient Services Inc. and Motient Communications Inc., each a Delaware corporation, and each a TSC Debtor in these proceedings. Motient Communications Inc., in turn, holds 100% of the interests in Motient License Inc., another Delaware corporation, and a TSC Debtor in these proceedings. These entities have minimal operations, minimal assets and various liabilities they will seek (or have sought already) to reject in the Chapter 11 Cases.
|
|
·
|
MVH directly holds 100% of the interests in MV Holding, a Delaware corporation. MV Holding is a TSC Debtor in these proceedings.
|
|
D.
|
The TSC Debtors’ Pre-petition Capital Structure
|
|
(i)
|
Intercompany Loan
|
|
(ii)
|
Pre-petition Indebtedness–Bridge Loan Agreement
|
|
(iii)
|
Stockholders’ Equity
|
|
a.
|
TSC Common Stock
|
|
b.
|
TSC Preferred Stock
|
|
E.
|
Pre-petition Litigation
|
|
(i)
|
Sprint Litigation
|
|
(ii)
|
Elektrobit Litigation
|
|
(iii)
|
Van Vlissingen and Company Demand Letter
|
|
(iv)
|
Highland Litigation
|
|
A.
|
“First-Day” Motions and Related Relief
|
|
(i)
|
Procedural Orders
|
|
(ii)
|
Retention of Professionals
|
|
B.
|
Debtor-in-Possession Financing
|
|
A.
|
Appointment of the Statutory Committee
|
|
·
|
Deutsche Bank National Trust Company, Indenture Trustee;
|
|
·
|
Hughes Network Systems, Inc.;
|
|
·
|
Nokia Siemens Networks US LLC;
|
|
·
|
Qualcomm Incorporated;
|
|
·
|
Shaffer Wilson Sarver & Gray, P.C.;
|
|
·
|
Space Systems/Loral. Inc.; and
|
|
·
|
Van Vlissingen and Company.
|
|
B.
|
The Claims Process
|
|
(i)
|
Filing of the TSC Debtors’ Statements of Financial Affairs and Schedules of Assets and Liabilities
|
|
(ii)
|
Establishment of the Claims Bar Date
|
|
(iii)
|
Settlement of Sprint Claims
|
|
(iv)
|
Status of Elektrobit Claims
|
|
(v)
|
Status of Jefferies Claims
|
|
(vi)
|
Omnibus Claims Objections
|
|
C.
|
Exclusivity
|
|
D.
|
The TSC Debtors’ Licenses and Related Applications
|
|
E.
|
Management Compensation Program
|
|
F.
|
Requests to Appoint an Official Equity Committee
|
|
G.
|
Request to Appoint an Examiner
|
|
H.
|
Ownership of Preferred Series A and B TSC Interests
|
|
A.
|
General Rules of Classification
|
|
B.
|
Summary of Classification
|
Class
|
Claim
|
Status
|
Voting Rights
|
1
|
Other Priority Claims
|
Unimpaired
|
No (deemed to accept)
|
2
|
Other Secured Claims
|
Unimpaired
|
No (deemed to accept)
|
3a
|
Bridge Loan Claims Against TSC
|
Impaired
|
Yes
|
3b
|
Bridge Loan Claim Against TS Holdings
|
Impaired
|
Yes
|
4a
|
Unsecured Claims Against TSC
|
Impaired
|
Yes
|
4b
|
Unsecured Claims Against TS Holdings
|
Impaired
|
Yes
|
4c
|
Unsecured Claim Against MVH Holdings Inc.
|
Impaired
|
Yes
|
4d
|
Unsecured Claims Against Motient Ventures Holding Inc.
|
Impaired
|
Yes
|
4e
|
Unsecured Claim Against Motient Holdings Inc.
|
Impaired
|
Yes
|
4f
|
Unsecured Claims Against Motient Communications Inc.
|
Impaired
|
Yes
|
4g
|
Unsecured Claim Against Motient Services Inc.
|
Impaired
|
Yes
|
4h
|
Unsecured Claims Against Motient License Inc.
|
Impaired
|
Yes
|
4i
|
Unsecured Claim Against TerreStar New York Inc.
|
Impaired
|
Yes
|
5
|
Convenience Claims
|
Unimpaired
|
No (deemed to accept)
|
6
|
Sprint Settlement Claim
|
Impaired
|
Yes
|
7
|
Intercompany Claims
|
Unimpaired
|
No (deemed to accept)
|
8a
|
Preferred Series A TSC Interests
|
Impaired
|
Yes
|
8b
|
Preferred Series B TSC Interests
|
Impaired
|
Yes
|
8c
|
Preferred Series C TSC Interests
|
Impaired
|
No (deemed to reject)
|
8d
|
Preferred Series D TSC Interests
|
Impaired
|
No (deemed to reject)
|
8e
|
Preferred Series E TSC Interests
|
Impaired
|
No (deemed to reject)
|
9a
|
Other TSC Equity Interests
|
Impaired
|
No (deemed to reject)
|
9b
|
Other Equity Interests in TS Holdings
|
Unimpaired
|
No (deemed to accept)
|
9c
|
Other Equity Interests in MVH Holdings Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
9d
|
Other Equity Interests in Motient Ventures Holding Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
9e
|
Other Equity Interests in Motient Holdings Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
9f
|
Other Equity Interests in Motient Communications Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
9g
|
Other Equity Interests in Motient Services Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
9h
|
Other Equity Interests in Motient License Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
9i
|
Other Equity Interests in TerreStar New York Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|
C.
|
Treatment of Claims and Equity Interests
|
|
(i)
|
Class 1 – Other Priority Claims
|
|
·
|
Classification: Class 1 consists of Other Priority Claims against each TSC Debtor. Although all Other Priority Claims have been placed in one Class for the purposes of nomenclature, the Other Priority Claims against each TSC Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.
|
|
·
|
Treatment: Except to the extent that a holder of an Allowed Other Priority Claim (i) has been paid by the applicable TSC Debtor, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable treatment, each holder of an Allowed Other Priority Claim shall receive from the TSC Debtor that is obligated on such Other Priority Claim, in full satisfaction, settlement, release and discharge of, and in exchange for such Other Priority Claim, Cash in the full amount of such Allowed Other Priority Claim.
|
|
·
|
Voting: Class 1 is Unimpaired and the holders of Other Priority Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Other Priority Claims are not entitled to vote to accept or reject the Plan.
|
|
(ii)
|
Class 2 – Other Secured Claims
|
|
·
|
Classification: Class 2 consists of Other Secured Claims. Although all Other Secured Claims have been placed in one Class for the purposes of nomenclature, each Other Secured Claim, to the extent secured by a Lien on any property or interest in property of the TSC Debtors different than that securing any other Other Secured Claims, shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.
|
|
·
|
Treatment: Except to the extent that a holder of an Allowed Other Secured Claim agrees to a less favorable treatment, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Other Secured Claim, each holder of an Allowed Other Secured Claim shall, at the option of the TSC Debtors (with the reasonable consent of each of the Designated Holders), be paid: (i) in Cash in full on the first Distribution Date after such claim becomes due and payable in the ordinary course of business or (ii) in Cash on such other terms and conditions as may be agreed between the holder of such claim and the TSC Debtors.
|
|
·
|
Voting: Class 2 is Unimpaired and the holders of Other Secured Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Other Secured Claims are not entitled to vote to accept or reject the Plan.
|
|
(iii)
|
Class 3 – Bridge Loan Claims
|
|
·
|
Classification: Classes 3a and 3b consist of the Bridge Loan Claims against TSC and TS Holdings, respectively.
|
|
·
|
Treatment: Except to the extent that a holder of an Allowed Bridge Loan Claim agrees to a less favorable treatment, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Bridge Loan Claim, each holder of an Allowed Bridge Loan Claim shall be paid in Cash within two Business Days after the Effective Date in an amount equal to such Bridge Loan Claim less any interest that has accrued pursuant to Section 2.8(c) of the Bridge Loan Agreement solely as a result of a continuing default thereunder.
|
|
·
|
Voting: Classes 3a and 3b are Impaired by the Plan. Therefore, holders of Bridge Loan Claims are entitled to vote to accept or reject the Plan.
|
|
(iv)
|
Class 4 – Unsecured Claims
|
|
·
|
Classification: Classes 4a and 4b consist of Unsecured Claims against TSC and TS Holdings, respectively.
|
|
·
|
Treatment: Except to the extent that a holder of an Allowed Unsecured Claim in Classes 4a and 4b agrees to a less favorable treatment, each holder of an Allowed Unsecured Claim in Class 4a or 4b shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Unsecured Claim in Class 4a or 4b, its Pro Rata share (calculated with reference to all Allowed Unsecured Claims in Classes 4a and 4b) of New TSC Notes in an aggregate amount such that each holder of an Allowed Unsecured Claim in Class 4a or 4b receives a 100% recovery on account of such Allowed Unsecured Claim in Class 4a or 4b, including post-petition interest at the federal judgment rate.
|
|
·
|
Voting: Classes 4a and 4b are Impaired by the Plan. Therefore, holders of Unsecured Claims in these Classes are entitled to vote to accept or reject the Plan.
|
|
·
|
Classification: Classes 4c – 4i consist of Unsecured Claims against MVH Holdings Inc. (Class 4c); Motient Ventures Holding Inc. (Class 4d); Motient Holdings Inc. (Class 4e); Motient Communications Inc. (Class 4f); Motient Services Inc. (Class 4g); Motient License Inc. (Class 4h); and TerreStar New York Inc. (Class 4i).
|
|
·
|
Treatment: Except to the that extent a holder of an Allowed Unsecured Claim in Classes 4c – 4i agrees to a less favorable treatment, to the extent that any holder of an Allowed Unsecured Claim in Classes 4c – 4i is also the holder of an Allowed Unsecured Claim in Class 4a or 4b arising out of the same agreement, transaction or circumstance, such Claim shall be satisfied in full by TSC or TS Holdings, as applicable, in accordance with the terms of the Plan, provided, however, that each holder of an Allowed Unsecured Claim in Classes 4c – 4i that (a) is not also the holder of an Allowed Unsecured Claim in Class 4a or 4b arising out of the same agreement, transaction or circumstance or (b) is the holder of an Allowed Unsecured Claim in Class 4a or 4b, but such Allowed Unsecured Claim in Classes 4c – 4i is greater in amount than such Allowed Unsecured Claim in Class 4a or 4b, shall, at the option of the applicable TSC Debtors, with the reasonable consent of each of the Designated Holders, receive: (i) payment in Cash in full, including post-petition interest at the federal judgment rate, on the first Distribution Date after such Claim becomes due and payable in the ordinary course of business or (ii) its Pro Rata share of the equity of the reorganized entity corresponding to such Allowed Unsecured Claim.
|
|
·
|
Voting: Classes 4c – 4i are Impaired by the Plan. Therefore, holders of Unsecured Claims in these Classes are entitled to vote to accept or reject the Plan.
|
|
(v)
|
Class 5
|
|
·
|
Classification: Class 5 consists of Convenience Claims against TSC and TS Holdings.
|
|
·
|
Treatment: Except to the extent that a holder of an Allowed Convenience Claim (i) has been paid by TSC or TS Holdings, as applicable, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable treatment, each holder of an Allowed Convenience Claim shall receive, from TSC or TS Holdings, as applicable, in full satisfaction, settlement, release and discharge of, and in exchange for such Convenience Claim, Cash in the full amount of such Allowed Convenience Claim, including post-petition interest at the federal judgment rate, on the first Distribution Date after such Convenience Claim becomes Allowed.
|
|
·
|
Voting: Class 5 is Unimpaired by the Plan, and the holders of Convenience Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Convenience Claims are not entitled to vote to accept or reject the Plan.
|
|
(vi)
|
Class 6 – Sprint Settlement Claim
|
|
·
|
Classification: Class 6 consists of the Sprint Settlement Claim against TSC.
|
|
·
|
Treatment: The holder of the Sprint Settlement Claim shall receive, on the Effective Date, in full satisfaction, settlement, release and discharge of, and in exchange for the Sprint Settlement Claim, Cash in an amount equal to the difference (if any) between $2.6 million and the amount paid to Sprint by the TSN Debtors on account of the Intercompany Funding Claim pursuant to the terms of the Sprint Settlements, which amount shall be funded solely from any amount actually received by TSC on account of the Intercompany Funding Claim. In the event that the allowed amount of the Sprint Settlement Claim exceeds the total amount actually received by TSC on account of the Intercompany Funding Claim, the holder of the Sprint Settlement Claim shall receive in full satisfaction, settlement, release and discharge of, and in exchange for the Sprint Settlement Claim only Cash in an amount equal to the total amount actually received by TSC on account of the Intercompany Funding Claim.
|
|
·
|
Voting: Class 6 is Impaired under the Plan. However, the TSN Debtors have paid Sprint $2.6 million on account of the Intercompany Funding Claim. Thus, the amount of the Sprint Settlement Claim is zero, and Class 6 is an empty class, deemed automatically eliminated. Any such votes cast in Class 6 shall be disregarded.
|
|
(vii)
|
Class 7 – Intercompany Claims
|
|
·
|
Classification: Class 7 consists of Intercompany Claims against each TSC Debtor. Although all Intercompany Claims have been placed in one Class for the purposes of nomenclature, the Intercompany Claims against each TSC Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.
|
|
·
|
Treatment: No distribution shall be made on account of Intercompany Claims. Except as otherwise determined by the TSC Debtors, with the consent of the Requisite Designated Holders, each Allowed Intercompany Claim shall be reinstated on the Effective Date. After the Effective Date, the Reorganized TSC Debtors shall have the right to resolve or compromise Disputed Intercompany Claims without approval of the Bankruptcy Court.
|
|
·
|
Voting: Class 7 is Unimpaired and the holders of Intercompany Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Intercompany Claims are not entitled to vote to accept or reject the Plan.
|
|
(viii)
|
Class 8 – Preferred TSC Interests
|
|
·
|
Classification: Classes 8a and 8b consist of Preferred Series A TSC Interests and Preferred Series B TSC Interests, respectively.
|
|
·
|
Treatment: On the Effective Date, except to the extent a holder of an Allowed Preferred Series A TSC Interest or an Allowed Preferred Series B TSC Interest agrees to a less favorable treatment, each holder of an Allowed Preferred Series A TSC Interest or an Allowed Preferred Series B TSC Interest shall receive its Pro Rata share (calculated with reference to all Allowed Preferred Series A and B TSC Interests) of the New Common Stock. On the Effective Date, all Preferred Series A TSC Interests and Preferred Series B TSC Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise.
|
|
·
|
Voting: Classes 8a and 8b are Impaired by the Plan. Therefore, holders of Preferred Series A TSC Interests and Preferred Series B TSC Interests are entitled to vote to accept or reject the Plan.
|
|
·
|
Classification: Classes 8c – 8e consist of the Preferred Series C TSC Interests, the Preferred Series D TSC Interests and the Preferred Series E TSC Interests, respectively.
|
|
·
|
Treatment: On the Effective Date, all Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distribution to the holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests.
|
|
·
|
Voting: Classes 8c – 8e are Impaired and the holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests are conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Therefore, holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests are not entitled to vote to accept or reject the Plan.
|
|
(ix)
|
Class 9 – Equity Interests
|
|
·
|
Classification: Class 9a consists of the Other TSC Equity Interests.
|
|
·
|
Treatment: On the Effective Date, all Other TSC Equity Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distribution to the holders of Other TSC Equity Interests.
|
|
·
|
Voting: Class 9a is Impaired and the holders of Other TSC Equity Interests are conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Therefore, holders of Other TSC Equity Interests are not entitled to vote to accept or reject the Plan.
|
|
·
|
Classification: Classes 9b – 9i consist of Other Equity Interests in TS Holdings (Class 9b); MVH Holdings Inc. (Class 9c); Motient Ventures Holding Inc. (Class 9d); Motient Holdings Inc. (Class 9e); Motient Communications Inc. (Class 9f); Motient Services Inc. (Class 9g); Motient License Inc. (Class 9h) and TerreStar New York Inc. (Class 9i).
|
|
·
|
Treatment: In full satisfaction, settlement, release and discharge of and in exchange for the Reorganized TSC Debtors’ agreement to make distributions, if any, to the holders of Allowed Unsecured Claims and Other Equity Interests under the Plan, to provide management services to certain other Reorganized TSC Debtors and to use certain funds and assets, to the extent authorized in the Plan, to satisfy certain obligations between and among such Reorganized TSC Debtors, each and every Other Equity Interest in Classes 9b – 9i shall, subject to any Restructuring Transaction, at the option of the Reorganized TSC Debtors (in consultation with the Designated Holders), either (i) be retained, in which case the TSC Debtor holding such Other Equity Interests shall continue to hold such Other Equity Interests, and the legal, equitable and contractual rights to which the holders of such Other Equity Interests are entitled shall remain unaltered or (ii) be cancelled and new Other Equity Interests in the applicable Other TSC Debtor shall be issued pursuant to the Plan to the Reorganized TSC Debtor that holds such Other Equity Interests. For the avoidance of doubt, if the holders of Allowed Unsecured Claims in Classes 4c – 4i receive the equity in the reorganized entity corresponding to their respective Allowed Unsecured Claim, the holders of the applicable 9c – 9i Other Equity Interests will receive no distribution.
|
|
·
|
Voting: Class 9b is Unimpaired and the holders of Class 9b Other Equity Interests are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Classes 9c – 9i are either (a) Unimpaired and the holders of the applicable Class 9c – 9i Other Equity Interests are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f) or (b) Impaired and the holders of the applicable Class 9c – 9i Other Equity Interests are conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Therefore, holders of Other Equity Interests in Classes 9b – 9i are not entitled to vote to accept or reject the Plan.
|
|
D.
|
Settlement, Release, Injunction and Related Provisions
|
|
(i)
|
Standards Applicable to Releases
|
|
(ii)
|
Releases by the TSC Debtors
|
|
(iii)
|
Releases by Holders of Claims and Equity Interests
|
|
(iv)
|
Exculpation
|
|
(v)
|
Discharge of Claims and Termination of Equity Interests
|
|
(vi)
|
Injunction
|
|
(vii)
|
Term of Injunctions or Stays
|
|
(viii)
|
Injunction Against Interference with Plan
|
|
(ix)
|
Injunction Related to Releases and Exculpation
|
|
(x)
|
Protection Against Discriminatory Treatment
|
|
(xi)
|
Release of Liens
|
|
(xii)
|
Releases Applicable to United States Government
|
|
A.
|
Holders of Claims and Equity Interests Entitled To Vote on the Plan
|
SUMMARY OF STATUS AND VOTING RIGHTS
|
Class
|
Claim
|
Status
|
Voting Rights
|
|||
1
|
Other Priority Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
2
|
Other Secured Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
3a
|
Bridge Loan Claims Against TSC
|
Impaired
|
Yes
|
|||
3b
|
Bridge Loan Claim Against TS Holdings
|
Impaired
|
Yes
|
|||
4a
|
Unsecured Claims Against TSC
|
Impaired
|
Yes
|
|||
4b
|
Unsecured Claims Against TS Holdings
|
Impaired
|
Yes
|
|||
4c
|
Unsecured Claim Against MVH Holdings Inc.
|
Impaired
|
Yes
|
|||
4d
|
Unsecured Claims Against Motient Ventures Holding Inc.
|
Impaired
|
Yes
|
|||
4e
|
Unsecured Claim Against Motient Holdings Inc.
|
Impaired
|
Yes
|
|||
4f
|
Unsecured Claims Against Motient Communications Inc.
|
Impaired
|
Yes
|
|||
4g
|
Unsecured Claim Against Motient Services Inc.
|
Impaired
|
Yes
|
|||
4h
|
Unsecured Claims Against Motient License Inc.
|
Impaired
|
Yes
|
|||
4i
|
Unsecured Claim Against TerreStar New York Inc.
|
Impaired
|
Yes
|
|||
5
|
Convenience Class Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
6
|
Sprint Settlement Claim
|
Impaired
|
Yes
|
|||
7
|
Intercompany Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
8a
|
Preferred Series A TSC Interests
|
Impaired
|
Yes
|
|||
8b
|
Preferred Series B TSC Interests
|
Impaired
|
Yes
|
|||
8c
|
Preferred Series C TSC Interests
|
Impaired
|
No (deemed to reject)
|
|||
8d
|
Preferred Series D TSC Interests
|
Impaired
|
No (deemed to reject)
|
|||
8e
|
Preferred Series E TSC Interests
|
Impaired
|
No (deemed to reject)
|
|||
9a
|
Other TSC Equity Interests
|
Impaired
|
No (deemed to reject)
|
|||
9b
|
Other Equity Interests in TerreStar Holdings
|
Unimpaired
|
No (deemed to accept)
|
|||
9c
|
Other Equity Interests in MVH Holdings Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9d
|
Other Equity Interests in Motient Ventures Holding Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9e
|
Other Equity Interests in Motient Holdings Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9f
|
Other Equity Interests in Motient Communications Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
Class
|
Claim
|
Status
|
Voting Rights
|
|||
9g
|
Other Equity Interests in Motient Services Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9h
|
Other Equity Interests in Motient License Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9i
|
Other Equity Interests in TerreStar New York Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|
B.
|
Voting Record Date
|
|
C.
|
Voting on the Plan
|
DELIVERY OF BALLOTS
|
Ballots must be actually received by the Voting and Claims Agent by the Voting Deadline of 5:00 p.m. (prevailing Eastern time) on February 24, 2012 at the following addresses:
|
Voting and Claims Agent:
If by mail:
TerreStar Corporation
c/o The Garden City Group, Inc.
P.O. Box 9680
Dublin, OH 43017-4980
If by hand or overnight courier:
TerreStar Corporation
c/o The Garden City Group, Inc.
5151 Blazer Parkway, Suite A
Dublin, OH 43017
The Voting and Claims Agent will not accept ballots submitted by facsimile or electronic means.
* * * * * * *
|
If you have any questions on the procedure for voting on the Plan, please call the Voting and Claims Agent at the following telephone number:
1-888-872-9182
|
|
D.
|
Ballots Not Counted
|
IF YOU HAVE ANY QUESTIONS ABOUT THE SOLICITATION OR VOTING PROCESS,
PLEASE CONTACT THE VOTING AND CLAIMS AGENT. ANY BALLOT RECEIVED AFTER THE VOTING DEADLINE OR OTHERWISE NOT IN COMPLIANCE
WITH THE SOLICITATION AND VOTING PROCEDURES WILL NOT BE COUNTED.
|
|
A.
|
The Confirmation Hearing
|
|
B.
|
Deadline to Object to Confirmation of the Plan
|
|
·
|
Counsel to the TSC Debtors: Akin Gump Strauss Hauer & Feld LLP, Attn: Ira S. Dizengoff and Arik Preis, One Bryant Park, New York, New York 10036 and Attn: Sarah Link Schultz, 1700 Pacific Avenue, Suite 4100, Dallas, Texas 75201; and
|
|
·
|
U.S. Trustee: Office of the United States Trustee for the Southern District of New York, Attn: Susan Golden, Whitehall Street, 21st Floor, New York, New York 10004.
|
|
C.
|
Confirmation Hearing
|
|
D.
|
Requirements for Confirmation of the Plan
|
|
·
|
The Plan complies with the applicable provisions of the Bankruptcy Code.
|
|
·
|
The TSC Debtors, as the Plan proponents, have complied with the applicable provisions of the Bankruptcy Code.
|
|
·
|
The Plan has been proposed in good faith and not by any means forbidden by law.
|
|
·
|
Any payment made or promised under the Plan for services or for costs and expenses in, or in connection with, the Chapter 11 Cases, or in connection with the Plan and incident to the case, has been disclosed to the Bankruptcy Court, and any such payment (i) made before Confirmation is reasonable or (ii) subject to the approval of the Bankruptcy Court is reasonable, if it is to be fixed after Confirmation.
|
|
·
|
Either each holder of an Impaired Claim or Equity Interest in the TSC Debtors has accepted (or is deemed to have accepted) the Plan, or each non-accepting creditor will receive or retain under the Plan on account of such Claim or Equity Interest, property of a value, as of the Effective Date of the Plan, that is not less than the amount that the holder would receive or retain if the TSC Debtors were liquidated on that date under chapter 7 of the Bankruptcy Code.
|
|
·
|
Each Class of Claims or Equity Interests that is entitled to vote on the Plan will have accepted the Plan, or the Plan can be confirmed without the approval of the Class pursuant to Bankruptcy Code section 1129(b).
|
|
·
|
Except to the extent that the holder of a particular Claim will agree to a different treatment of its Claim, the Plan provides that Administrative Claims and Priority Non-Tax Claims will be paid in full on the Effective Date, or as soon thereafter as is reasonably practicable.
|
|
·
|
At least one Class of Impaired Claims will have accepted the Plan, determined without including any acceptance of the Plan by any insider holding a Claim in that Class.
|
|
·
|
Confirmation of the Plan is not likely to be followed by the liquidation or the need for further financial reorganization of the TSC Debtors or any successors thereto under the Plan.
|
|
·
|
All fees of the type described in 28 U.S.C. § 1930, including the fees of the U.S. Trustee, will be paid as of the Effective Date.
|
|
E.
|
Best Interests of Creditors/Liquidation Analysis
|
|
F.
|
Feasibility/Financial Projections
|
|
G.
|
Acceptance by Impaired Classes
|
|
H.
|
Confirmation Without Acceptance by All Impaired Classes/Fair and Equitable Test
|
|
(i)
|
No Unfair Discrimination
|
|
(ii)
|
Fair and Equitable Test
|
|
a.
|
Secured Claims
|
|
b.
|
Unsecured Claims
|
|
c.
|
Equity Interests
|
|
I.
|
Valuation of the TSC Debtors
|
|
J.
|
Effect of Confirmation and Consummation of the Plan
|
|
A.
|
Risks Related to Confirmation of the Plan
|
|
(i)
|
The TSC Debtors May Not Be Able To Obtain Confirmation of the Plan.
|
|
(ii)
|
Parties in Interest May Object to the TSC Debtors’ Classification of Claims and Equity Interests.
|
|
(iii)
|
The Conditions Precedent to the Effective Date of the Plan May Not Occur.
|
|
(iv)
|
Historical Financial Information of the TSC Debtors May Not Be Comparable to the Financial Information of the Reorganized TSC Debtors.
|
|
(v)
|
The TSC Debtors May Object to the Amount or Classification of a Claim.
|
|
B.
|
Risks That May Affect the Value of the Securities to Be Issued Under the Plan
|
|
(i)
|
A Liquid Trading Market for the New Common Stock or the New TSC Notes May Not Develop.
|
|
(ii)
|
The Resale of the New Common Stock and New TSC Notes May Be Restricted by Law.
|
|
(iii)
|
The Valuation of New Common Stock and New TSC Notes Is Not Intended To Represent the Trading Value of the Securities To Be Issued.
|
|
(iv)
|
The Reorganized TSC Debtors May Not Achieve Projected Financial Results or Meet Post-reorganization Debt Obligations and May Not Finance All Operating Expenses, Working Capital Needs and Capital Expenditures.
|
|
(v)
|
The Reorganized TSC Debtors May Be Controlled by a Small Number of Holders.
|
|
C.
|
Risks Related to the TSC Debtors’ Businesses
|
|
(i)
|
There are Risks and Uncertainties Associated with the Chapter 11 Cases.
|
|
·
|
the TSC Debtors’ ability to obtain approval of the Bankruptcy Court with respect to motions filed in the Chapter 11 Cases from time to time;
|
|
·
|
the TSC Debtors’ ability to maintain contracts that are critical to their operations;
|
|
·
|
the TSC Debtors’ ability to fund and execute their business plan; and
|
|
·
|
the TSC Debtors’ ability to obtain creditor, equity holder and Bankruptcy Court approval for, and then to consummate, the Plan and emerge from bankruptcy.
|
|
(ii)
|
The Reorganized TSC Debtors Will Have Indebtedness Upon Emergence.
|
|
·
|
a portion of the Reorganized TSC Debtors’ cash flow from operations will be dedicated to debt service and be unavailable to support operations, working capital, capital expenditures, expansion, acquisitions or general corporate or other purposes,
|
|
·
|
the Reorganized TSC Debtors’ ability to obtain additional financing in the future may be limited,
|
|
·
|
the Reorganized TSC Debtors’ flexibility in planning for, or reacting to, changes in their business may be limited, and
|
|
·
|
it may make the Reorganized TSC Debtors more vulnerable in the event of a downturn in their business or the economy in general.
|
|
(iii)
|
The TSC Debtors May Require Funding After Emergence.
|
|
(iv)
|
The Current Weakening of U.S. Economic Conditions, as Well as Any Future Downturns or Changes in Consumer Spending, Could Adversely Affect the TSC Debtors’ Financial Condition.
|
|
(v)
|
The TSC Debtors May Be Negatively Affected by Industry Consolidation.
|
|
(vi)
|
Certain Tax Implications of the TSC Debtors’ Bankruptcy and Reorganization May Increase the Tax Liability of the Reorganized TSC Debtors.
|
|
D.
|
Risks Relating to Government Regulations
|
|
(i)
|
The TSC Debtors’ Business Is Subject to a High Degree of Government Regulation.
|
|
(ii)
|
The TSC Debtors Could Lose Their FCC Licenses and Be Subject to Fines or Other Penalties.
|
|
(iii)
|
The TSC Debtors May Face Unforeseen Regulations with Which They Find It Difficult, Costly or Impossible To Comply.
|
|
(iv)
|
FCC Regulations and the Approval Process Could Delay or Impede a Transfer of Control of the TSC Debtors.
|
|
E.
|
Risks Relating to Forward-Looking Statements
|
|
F.
|
Risks Relating to Recoveries Under the Plan
|
|
(i)
|
Risks Relating to Recovery Projections.
|
|
(ii)
|
The Spectrum Lease May Be a Below-market Lease.
|
|
G.
|
Disclosure Statement Disclaimer
|
|
(i)
|
No Representations Made Outside This Disclosure Statement Are Authorized.
|
|
(ii)
|
The TSC Debtors Relied on Certain Exemptions from Registration Under the Securities Act.
|
|
(iii)
|
The Information Herein Was Provided by the TSC Debtors and Relied Upon by Their Advisors.
|
|
(iv)
|
No Legal or Tax Advice Is Provided to You by This Disclosure Statement.
|
|
(v)
|
No Admissions Are Made by This Disclosure Statement.
|
|
(vi)
|
Forward-Looking Statements in This Disclosure Statement.
|
· any future effects as a result of the pendency of the Chapter 11 Cases;
· the TSC Debtors’ expected future financial position, liquidity, results of operations, profitability and cash flows;
· financing plans;
· competitive position;
|
· results of litigation;
· disruption of operations;
· regulatory changes;
· plans and objectives of management for future operations;
· contractual obligations;
|
· business strategy;
· budgets;
· projected cost reductions;
· projected and estimated environmental liabilities;
· other projected and estimated liability costs;
|
· off-balance-sheet arrangements;
· growth opportunities for existing services;
· projected price increases;
· projected general market conditions; and
· benefits from new technologies.
|
· the TSC Debtors’ ability to develop, confirm and consummate the Plan;
· the TSC Debtors’ ability to reduce their overall financial leverage;
· the potential adverse impact of the Chapter 11 Cases on the TSC Debtors’ operations, management and employees and the risks associated with operating the businesses during the Chapter 11 Cases;
· supplier/partner response to the Chapter 11 Cases;
· inability to have claims discharged/settled during the Chapter 11 Cases;
· general economic, business and market conditions, including the recent volatility and disruption in the capital and credit markets and the significant downturn in the overall economy;
|
· interest rate fluctuations;
· exposure to litigation;
· dependence upon key personnel;
· ability to implement cost reduction and market share initiatives in a timely manner;
· efficacy of new technologies and facilities;
· adverse tax changes;
· limited access to capital resources;
· changes in laws and regulations;
· natural disasters; and
· inability to implement the TSC Debtors’ business plan.
|
|
A.
|
Issuance and Resale of Securities Under the Plan
|
|
B.
|
New Common Stock and New TSC Notes
|
|
A.
|
Certain U.S. Federal Income Tax Consequences to the Reorganized TSC Debtors
|
|
(i)
|
Cancellation of Debt and Reduction of Tax Attributes
|
|
(ii)
|
Limitation of Net Operating Loss Carry Forwards and Other Tax Attributes
|
|
a.
|
General Section 382 Annual Limitation
|
|
b.
|
Special Bankruptcy Exceptions
|
|
(iii)
|
Special Considerations in the Application of COD Rules and Reduction of Tax Attributes to Debtors
|
|
(iv)
|
Alternative Minimum Tax
|
|
B.
|
Certain U.S. Federal Income Tax Consequences to the U.S. Holders Under the Plan
|
|
(i)
|
Consequences to U.S. Holders of Allowed Class 4a and 4b Unsecured Claims
|
|
(ii)
|
Consequences to U.S. Holders of Allowed Class 4c, 4d, 4e, 4f, 4g, 4h and 4i Unsecured Claims
|
|
(iii)
|
Consequences to U.S. Holders of Allowed Classes 7a and 7b Preferred Series A TSC Interests and Preferred Series B TSC Interests
|
|
(iv)
|
Consequences to U.S. Holders of Allowed Classes 7c, 7d and 7e Other Preferred TSC Interests and Class 8a Other TSC Equity Interests
|
|
(v)
|
Claims Reserve
|
|
(vi)
|
Ownership and Disposition of New Common Stock
|
|
(vii)
|
Accrued but Unpaid Interest
|
|
(viii)
|
Limitations on Use of Capital Losses
|
|
(ix)
|
Information Reporting and Backup Withholding
|
|
C.
|
General U.S. Federal Income Tax Consequences to Non-U.S. Holders
|
|
(i)
|
Tax Consequences to Non-U.S. Holders of Plan
|
|
a.
|
Tax Consequences of Non-U.S. Holders Under the Plan
|
|
b.
|
Non-U.S. Holders of New Common Stock
|
|
c.
|
Effectively Connected Income and Loss
|
|
d.
|
Sale, Exchange or Disposition of New Common Stock
|
|
·
|
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of disposition, and certain other conditions are met or
|
|
·
|
such gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States.
|
|
(ii)
|
Information Reporting and Backup Withholding for Non-U.S. Holders
|
|
D.
|
Importance of Obtaining Professional Tax Assistance
|
Respectfully submitted,
|
|||
TerreStar Corporation
|
|||
(for itself and on behalf of each of the TSC Debtors)
|
|||
By:
|
/s/ Douglas Brandon
|
||
Name: Douglas Brandon
|
|||
Title: General Counsel and Secretary
|
)
|
|||
In re:
|
)
|
Chapter 11
|
|
)
|
|||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
|
)
|
|||
Debtors.
|
)
|
Jointly Administered
|
|
)
|
SECOND AMENDED JOINT CHAPTER 11 PLAN OF TERRESTAR CORPORATION, MOTIENT
COMMUNICATIONS INC., MOTIENT HOLDINGS INC., MOTIENT LICENSE
INC., MOTIENT SERVICES INC., MOTIENT VENTURES HOLDING INC., MVH
HOLDINGS INC., TERRESTAR HOLDINGS INC. AND TERRESTAR NEW YORK INC.
|
1
|
The debtors in these chapter 11 cases, along with the last four digits of each debtor’s federal taxpayer identification number, are: TerreStar Corporation (6127); Motient Communications Inc. (3833); Motient Holdings Inc. (6634); Motient License Inc. (2431); Motient Services Inc. (5106); Motient Ventures Holding Inc. (6191); MVH Holdings Inc. (9756); TerreStar Holdings Inc. (0778); and TerreStar New York Inc. (6394).
|
ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME AND GOVERNING LAW | 1 | ||
A.
|
Defined Terms
|
1
|
|
B.
|
Rules of Interpretation
|
12
|
|
C.
|
Computation of Time
|
12
|
|
D.
|
Governing Law
|
12
|
|
E.
|
Reference to Monetary Figures
|
12
|
|
ARTICLE II. ADMINISTRATIVE CLAIMS, DIP CLAIMS, U.S. TRUSTEE FEES AND PRIORITY TAX CLAIMS | 12 | ||
A.
|
Administrative Claims
|
13
|
|
B.
|
DIP Claims
|
14
|
|
C.
|
U.S. Trustee Fees
|
14
|
|
D.
|
Priority Tax Claims
|
14
|
|
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS | 15 | ||
A.
|
General Rules of Classification
|
15
|
|
B.
|
Summary of Classification
|
15
|
|
C.
|
Treatment of Claims and Equity Interests
|
16
|
|
ARTICLE IV. ACCEPTANCE REQUIREMENTS | 21 | ||
A.
|
Acceptance or Rejection of the Plan
|
21
|
|
B.
|
Confirmation Pursuant to Bankruptcy Code Sections 1129(a)(10) and 1129(b)
|
22
|
|
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN | 22 | ||
A.
|
Exit Facility
|
22
|
|
B.
|
Sources of Consideration for Plan Distributions
|
23
|
|
C.
|
Issuance of New Securities and Debt Instruments
|
23
|
|
D.
|
Cancellation of Securities and Agreements
|
23
|
|
E.
|
Listing of the New Common Stock and Transfer Restrictions
|
24
|
|
F.
|
Section 1145 Exemption
|
24
|
|
G.
|
Corporate Existence
|
24
|
|
H.
|
New Certificate of Incorporation and New By-laws
|
24
|
|
I.
|
Reorganized TSC Debtors’ Boards of Directors
|
25
|
|
J.
|
Officers of Reorganized TSC Debtors
|
25
|
|
K.
|
Vesting of Assets in the Reorganized TSC Debtors
|
25
|
|
L.
|
Restructuring Transactions
|
25
|
|
M.
|
Corporate Action
|
26
|
|
N.
|
Effectuating Documents; Further Transactions
|
26
|
|
O.
|
General Settlement of Claims and Equity Interests
|
26
|
|
P.
|
Section 1146 Exemption from Certain Taxes and Fees
|
26
|
|
Q.
|
D&O Liability Insurance Policies and Indemnification Provisions
|
27
|
|
R.
|
Preservation of Rights and Causes of Action
|
27
|
|
S.
|
Payment of Fees and Expenses of Bridge Loan Agent
|
28
|
|
ARTICLE VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES | 28 | ||
A.
|
Assumption and Rejection of Executory Contracts and Unexpired Leases
|
28
|
|
B.
|
Cure of Defaults for Executory Contracts and Unexpired Leases Assumed
|
29
|
|
C.
|
Claims Based on Rejection of Executory Contracts or Unexpired Leases
|
29
|
|
D.
|
Insurance Policies
|
29
|
|
E.
|
Modifications, Amendments, Supplements, Restatements or Other Agreements
|
30
|
|
F.
|
Reservation of Rights
|
30
|
|
G.
|
Contracts and Leases Entered into After the Petition Date
|
30
|
|
ARTICLE VII. PROVISIONS GOVERNING DISTRIBUTIONS | 30 | ||
A.
|
Record Date for Distributions
|
30
|
|
B.
|
Timing and Calculation of Amounts to Be Distributed
|
31
|
C.
|
Fractional Distributions
|
31
|
|
D.
|
Disbursing Agent
|
31
|
|
E.
|
Rights and Powers of Disbursing Agent
|
31
|
|
F.
|
Distributions to Holders of Disputed Claims
|
31
|
|
G.
|
Delivery of Distributions and Undeliverable or Unclaimed Distributions
|
32
|
|
H.
|
Hart-Scott-Rodino Compliance
|
32
|
|
I.
|
Withholding and Reporting Requirements
|
32
|
|
J.
|
Setoffs
|
33
|
|
K.
|
Claims Paid or Payable by Third Parties
|
33
|
|
L.
|
Post-petition Interest
|
33
|
|
M.
|
Section 506(c) Reservation
|
34
|
|
N.
|
Single Satisfaction of Claims
|
34
|
|
ARTICLE VIII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED AND DISPUTED CLAIMS | 34 | ||
A.
|
Prosecution of Objections to Claims
|
34
|
|
B.
|
Allowance of Claims
|
34
|
|
C.
|
Claims Reserve
|
34
|
|
D.
|
Distributions After Allowance
|
34
|
|
E.
|
Distribution of Excess Amounts in the Disputed Claims Reserve
|
35
|
|
F.
|
Property Held in the Disputed Claims Reserve
|
35
|
|
G.
|
Estimation of Claims
|
35
|
|
H.
|
Deadline to File Objections to Claims
|
35
|
|
ARTICLE IX. SETTLEMENT, RELEASE, INJUNCTION AND RELATED PROVISIONS | 35 | ||
A.
|
Releases by the TSC Debtors
|
35
|
|
B.
|
Releases by Holders of Claims and Equity Interests
|
36
|
|
C.
|
Exculpation
|
36
|
|
D.
|
Discharge of Claims and Termination of Equity Interests
|
37
|
|
E.
|
Injunction
|
37
|
|
F.
|
Term of Injunctions or Stays
|
38
|
|
G.
|
Injunction Against Interference with Plan
|
38
|
|
H.
|
Injunction Related to Releases and Exculpation
|
38
|
|
I.
|
Protection Against Discriminatory Treatment
|
39
|
|
J.
|
Release of Liens
|
39
|
|
K.
|
Releases Applicable to United States Government
|
39
|
|
ARTICLE X. CONDITIONS PRECEDENT TO CONFIRMATION OF THE PLAN AND THE EFFECTIVE DATE | 40 | ||
A.
|
Conditions Precedent to Confirmation
|
40
|
|
B.
|
Conditions Precedent to the Effective Date
|
40
|
|
C.
|
Waiver of Conditions
|
41
|
|
D.
|
Effect of Failure of Conditions
|
41
|
|
ARTICLE XI. MODIFICATION, REVOCATION OR WITHDRAWAL OF THE PLAN | 41 | ||
A.
|
Modification and Amendments
|
41
|
|
B.
|
Effect of Confirmation on Modifications
|
42
|
|
C.
|
Revocation or Withdrawal of the Plan
|
42
|
|
ARTICLE XII. RETENTION OF JURISDICTION | 42 | ||
ARTICLE XIII. MISCELLANEOUS PROVISIONS | 44 | ||
A.
|
Immediate Binding Effect
|
44
|
|
B.
|
Additional Documents
|
44
|
|
C.
|
Payment of Fees and Expenses of Each DIP Lender
|
44
|
|
D.
|
Dissolution of Statutory Committees, If Any
|
44
|
|
E.
|
Successors and Assigns
|
44
|
|
F.
|
Service of Documents
|
45
|
|
G.
|
Entire Agreement
|
45
|
H.
|
Severability of Plan Provisions
|
45
|
|
I.
|
Exhibits
|
45
|
|
J.
|
Votes Solicited in Good Faith
|
46
|
|
K.
|
Closing of Chapter 11 Cases
|
46
|
|
L.
|
Conflicts
|
46
|
2
|
No later than 25 calendar days prior to the Plan Supplement Filing Date, the TSC Debtors will provide each of the Designated Holders with the proposed form of each document comprising the Plan Supplement. Except with respect to (a) the New Corporate Governance Documents, (b) the Registration Rights Agreement, (c) the New TSC Notes and (d) the Exit Facility Documents, if any Designated Holder has not provided comments to any Plan Supplement document by the date that is five business days prior to the Plan Supplement Filing Date (or has provided comments that have been incorporated), such Plan Supplement document will be deemed to be reasonably acceptable in form and substance to such Designated Holder.
|
3
|
References in the Plan and Disclosure Statement to any combination of the various series of the Preferred TSC Interests shall have the same meaning as if each such series were listed out separately. For example, a reference to the Preferred Series A and B TSC Interests shall have the same meaning as a reference to each of the Preferred Series A TSC Interests and the Preferred Series B TSC Interests.
|
|
(a)
|
Claims for Accrued Professional Compensation
|
|
(b)
|
Treatment of Claims for Accrued Professional Compensation
|
|
(c)
|
Post-Effective Date Fees and Expenses
|
Class
|
Claim
|
Status
|
Voting Rights
|
|||
1
|
Other Priority Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
2
|
Other Secured Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
3a
|
Bridge Loan Claims Against TSC
|
Impaired
|
Yes
|
|||
3b
|
Bridge Loan Claim Against TS Holdings
|
Impaired
|
Yes
|
|||
4a
|
Unsecured Claims Against TSC
|
Impaired
|
Yes
|
|||
4b
|
Unsecured Claims Against TS Holdings
|
Impaired
|
Yes
|
|||
4c
|
Unsecured Claim Against MVH Holdings Inc.
|
Impaired
|
Yes
|
|||
4d
|
Unsecured Claims Against Motient Ventures Holding Inc.
|
Impaired
|
Yes
|
|||
4e
|
Unsecured Claim Against Motient Holdings Inc.
|
Impaired
|
Yes
|
|||
4f
|
Unsecured Claims Against Motient Communications Inc.
|
Impaired
|
Yes
|
|||
4g
|
Unsecured Claim Against Motient Services Inc.
|
Impaired
|
Yes
|
|||
4h
|
Unsecured Claims Against Motient License Inc.
|
Impaired
|
Yes
|
|||
4i
|
Unsecured Claim Against TerreStar New York Inc.
|
Impaired
|
Yes
|
|||
5
|
Convenience Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
6
|
Sprint Settlement Claim
|
Impaired
|
Yes
|
|||
7
|
Intercompany Claims
|
Unimpaired
|
No (deemed to accept)
|
|||
8a
|
Preferred Series A TSC Interests
|
Impaired
|
Yes
|
|||
8b
|
Preferred Series B TSC Interests
|
Impaired
|
Yes
|
|||
8c
|
Preferred Series C TSC Interests
|
Impaired
|
No (deemed to reject)
|
Class
|
Claim
|
Status
|
Voting Rights
|
8d
|
Preferred Series D TSC Interests
|
Impaired
|
No (deemed to reject)
|
|||
8e
|
Preferred Series E TSC Interests
|
Impaired
|
No (deemed to reject)
|
|||
9a
|
Other TSC Equity Interests
|
Impaired
|
No (deemed to reject)
|
|||
9b
|
Other Equity Interests in TS Holdings
|
Unimpaired
|
No (deemed to accept)
|
|||
9c
|
Other Equity Interests in MVH Holdings Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9d
|
Other Equity Interests in Motient Ventures Holding Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9e
|
Other Equity Interests in Motient Holdings Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9f
|
Other Equity Interests in Motient Communications Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9g
|
Other Equity Interests in Motient Services Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9h
|
Other Equity Interests in Motient License Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|||
9i
|
Other Equity Interests in TerreStar New York Inc.
|
Unimpaired/
Impaired
|
No (deemed to accept)/
No (deemed to reject)
|
|
(a)
|
Classification: Class 1 consists of Other Priority Claims against each TSC Debtor. Although all Other Priority Claims have been placed in one Class for the purposes of nomenclature, the Other Priority Claims against each TSC Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.
|
|
(b)
|
Treatment: Except to the extent that a holder of an Allowed Other Priority Claim (i) has been paid by the applicable TSC Debtor, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable treatment, each holder of an Allowed Other Priority Claim shall receive from the TSC Debtor that is obligated on such Other Priority Claim, in full satisfaction, settlement, release and discharge of, and in exchange for such Other Priority Claim, Cash in the full amount of such Allowed Other Priority Claim.
|
|
(c)
|
Voting: Class 1 is Unimpaired and the holders of Other Priority Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Other Priority Claims are not entitled to vote to accept or reject the Plan.
|
|
(a)
|
Classification: Class 2 consists of Other Secured Claims. Although all Other Secured Claims have been placed in one Class for the purposes of nomenclature, each Other Secured Claim, to the extent secured by a Lien on any property or interest in property of the TSC Debtors different than that securing any other Other Secured Claims, shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.
|
|
(b)
|
Treatment: Except to the extent that a holder of an Allowed Other Secured Claim agrees to a less favorable treatment, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Other Secured Claim, each holder of an Allowed Other Secured Claim shall, at the option of the TSC Debtors (with the reasonable consent of each of the Designated Holders), be paid: (i) in Cash in full on the first Distribution Date after such claim becomes due and payable in the ordinary course of business or (ii) in Cash on such other terms and conditions as may be agreed between the holder of such claim and the TSC Debtors.
|
|
(c)
|
Voting: Class 2 is Unimpaired and the holders of Other Secured Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Other Secured Claims are not entitled to vote to accept or reject the Plan.
|
|
(a)
|
Classification: Classes 3a and 3b consist of the Bridge Loan Claims against TSC and TS Holdings, respectively.
|
|
(b)
|
Treatment: Except to the extent that a holder of an Allowed Bridge Loan Claim agrees to a less favorable treatment, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Bridge Loan Claim, each holder of an Allowed Bridge Loan Claim shall be paid in Cash within two Business Days after the Effective Date in an amount equal to such Bridge Loan Claim less any interest that has accrued pursuant to Section 2.8(c) of the Bridge Loan Agreement solely as a result of a continuing default thereunder.
|
|
(c)
|
Voting: Classes 3a and 3b are Impaired by the Plan. Therefore, holders of Bridge Loan Claims are entitled to vote to accept or reject the Plan.
|
|
(a)
|
Classes 4a and 4b
|
|
(i)
|
Classification: Classes 4a and 4b consist of Unsecured Claims against TSC and TS Holdings, respectively.
|
|
(ii)
|
Treatment: Except to the extent that a holder of an Allowed Unsecured Claim in Classes 4a and 4b agrees to a less favorable treatment, each holder of an Allowed Unsecured Claim in Class 4a or 4b shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for such Allowed Unsecured Claim in Class 4a or 4b, its Pro Rata share (calculated with reference to all Allowed Unsecured Claims in Classes 4a and 4b) of New TSC Notes in an aggregate amount such that each holder of an Allowed Unsecured Claim in Class 4a or 4b receives a 100% recovery on account of such Allowed Unsecured Claim in Class 4a or 4b, including post-petition interest at the federal judgment rate.
|
|
(iii)
|
Voting: Classes 4a and 4b are Impaired by the Plan. Therefore, holders of Unsecured Claims in these Classes are entitled to vote to accept or reject the Plan.
|
|
(b)
|
Classes 4c – 4i
|
|
(i)
|
Classification: Classes 4c – 4i consist of Unsecured Claims against MVH Holdings Inc. (Class 4c); Motient Ventures Holding Inc. (Class 4d); Motient Holdings Inc. (Class 4e); Motient Communications Inc. (Class 4f); Motient Services Inc. (Class 4g); Motient License Inc. (Class 4h); and TerreStar New York Inc. (Class 4i).
|
|
(ii)
|
Treatment: Except to the that extent a holder of an Allowed Unsecured Claim in Classes 4c – 4i agrees to a less favorable treatment, to the extent that any holder of an Allowed Unsecured Claim in Classes 4c – 4i is also the holder of an Allowed Unsecured Claim in Class 4a or 4b arising out of the same agreement, transaction or circumstance, such Claim shall be satisfied in full by TSC or TS Holdings, as applicable, in accordance with the terms of this Plan, provided, however, that each holder of an Allowed Unsecured Claim in Classes 4c – 4i that (a) is not also the holder of an Allowed Unsecured Claim in Class 4a or 4b arising out of the same agreement, transaction or circumstance or (b) is the holder of an Allowed Unsecured Claim in Class 4a or 4b, but such Allowed Unsecured Claim in Classes 4c – 4i is greater in amount than such Allowed Unsecured Claim in Class 4a or 4b, shall, at the option of the applicable TSC Debtors, with the reasonable consent of each of the Designated Holders, receive: (i) payment in Cash in full, including post-petition interest at the federal judgment rate, on the first Distribution Date after such Claim becomes due and payable in the ordinary course of business or (ii) its Pro Rata share of the equity of the reorganized entity corresponding to such Allowed Unsecured Claim.
For the avoidance of doubt, with respect to Allowed Class 4c – 4i Unsecured Claims, to the extent that Cash is distributed to any of the Other TSC Debtors pursuant to the TSN Debtors’ chapter 11 plan, such Cash will be used to satisfy such Allowed Class 4c – 4i Unsecured Claims, as applicable; provided, however, that, to the extent that any TSC Debtor(s) advance(s) Cash to any of the Other TSC Debtors to satisfy Allowed Class 4c – 4i Unsecured Claims prior to any of the Other TSC Debtors’ receipt of any distribution pursuant to the TSN Debtors’ chapter 11 plan, any such distribution pursuant to the TSN Debtors’ chapter 11 plan will be paid over to such TSC Debtor(s) in repayment of such Cash advance(s).
|
|
(iii)
|
Voting: Classes 4c – 4i are Impaired by the Plan. Therefore, holders of Unsecured Claims in these Classes are entitled to vote to accept or reject the Plan.
|
|
(a)
|
Classification: Class 5 consists of Convenience Claims against TSC and TS Holdings.
|
|
(b)
|
Treatment: Except to the extent that a holder of an Allowed Convenience Claim (i) has been paid by TSC or TS Holdings, as applicable, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable treatment, each holder of an Allowed Convenience Claim shall receive, from TSC or TS Holdings, as applicable, in full satisfaction, settlement, release and discharge of, and in exchange for such Convenience Claim, Cash in the full amount of such Allowed Convenience Claim, including post-petition interest at the federal judgment rate, on the first Distribution Date after such Convenience Claim becomes Allowed.
|
|
(c)
|
Voting: Class 5 is Unimpaired by the Plan, and the holders of Convenience Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Convenience Claims are not entitled to vote to accept or reject the Plan.
|
|
(a)
|
Classification: Class 6 consists of the Sprint Settlement Claim against TSC.
|
|
(b)
|
Treatment: The holder of the Sprint Settlement Claim shall receive, on the Effective Date, in full satisfaction, settlement, release and discharge of, and in exchange for the Sprint Settlement Claim, Cash in an amount equal to the difference (if any) between $2.6 million and the amount paid to Sprint by the TSN Debtors on account of the Intercompany Funding Claim pursuant to the terms of the Sprint Settlements, which amount shall be funded solely from any amount actually received by TSC on account of the Intercompany Funding Claim. In the event that the allowed amount of the Sprint Settlement Claim exceeds the total amount actually received by TSC on account of the Intercompany Funding Claim, the holder of the Sprint Settlement Claim shall receive in full satisfaction, settlement, release and discharge of, and in exchange for the Sprint Settlement Claim only Cash in an amount equal to the total amount actually received by TSC on account of the Intercompany Funding Claim.
|
|
(c)
|
Voting: Class 6 is Impaired under the Plan. However, the TSN Debtors have paid Sprint $2.6 million on account of the Intercompany Funding Claim. Thus, the amount of the Sprint Settlement Claim is zero, and Class 6 is an empty class, deemed automatically eliminated. Any such votes cast in Class 6 shall be disregarded.
|
|
(a)
|
Classification: Class 7 consists of Intercompany Claims against each TSC Debtor. Although all Intercompany Claims have been placed in one Class for the purposes of nomenclature, the Intercompany Claims against each TSC Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.
|
|
(b)
|
Treatment: No distribution shall be made on account of Intercompany Claims. Except as otherwise determined by the TSC Debtors, with the consent of the Requisite Designated Holders, each Allowed Intercompany Claim shall be reinstated on the Effective Date. After the Effective Date, the Reorganized TSC Debtors shall have the right to resolve or compromise Disputed Intercompany Claims without approval of the Bankruptcy Court.
|
|
(c)
|
Voting: Class 7 is Unimpaired and the holders of Intercompany Claims are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Therefore, holders of Intercompany Claims are not entitled to vote to accept or reject the Plan.
|
|
(a)
|
Classes 8a and 8b
|
|
(i)
|
Classification: Classes 8a and 8b consist of Preferred Series A TSC Interests and Preferred Series B TSC Interests, respectively.
|
|
(ii)
|
Treatment: On the Effective Date, except to the extent a holder of an Allowed Preferred Series A TSC Interest or an Allowed Preferred Series B TSC Interest agrees to a less favorable treatment, each holder of an Allowed Preferred Series A TSC Interest or an Allowed Preferred Series B TSC Interest shall receive its Pro Rata share (calculated with reference to all Allowed Preferred Series A and B TSC Interests) of the New Common Stock. On the Effective Date, all Preferred Series A TSC Interests and Preferred Series B TSC Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise.
|
|
(iii)
|
Voting: Classes 8a and 8b are Impaired by the Plan. Therefore, holders of Preferred Series A TSC Interests and Preferred Series B TSC Interests are entitled to vote to accept or reject the Plan.
|
|
(b)
|
Classes 8c –8e
|
|
(i)
|
Classification: Classes 8c – 8e consist of the Preferred Series C TSC Interests, the Preferred Series D TSC Interests and the Preferred Series E TSC Interests, respectively.
|
|
(ii)
|
Treatment: On the Effective Date, all Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distribution to the holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests.
|
|
(iii)
|
Voting: Classes 8c – 8e are Impaired and the holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests are conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Therefore, holders of Preferred Series C TSC Interests, Preferred Series D TSC Interests and Preferred Series E TSC Interests are not entitled to vote to accept or reject the Plan.
|
|
(a)
|
Class 9a
|
|
(i)
|
Classification: Class 9a consists of the Other TSC Equity Interests.
|
|
(ii)
|
Treatment: On the Effective Date, all Other TSC Equity Interests shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distribution to the holders of Other TSC Equity Interests.
|
|
(iii)
|
Voting: Class 9a is Impaired and the holders of Other TSC Equity Interests are conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Therefore, holders of Other TSC Equity Interests are not entitled to vote to accept or reject the Plan.
|
|
(b)
|
Classes 9b – 9i
|
|
(i)
|
Classification: Classes 9b – 9i consist of Other Equity Interests in TS Holdings (Class 8b); MVH Holdings Inc. (Class 8c); Motient Ventures Holding Inc. (Class 8d); Motient Holdings Inc. (Class 8e); Motient Communications Inc. (Class 8f); Motient Services Inc. (Class 8g); Motient License Inc. (Class 8h) and TerreStar New York Inc. (Class 8i).
|
|
(ii)
|
Treatment: In full satisfaction, settlement, release and discharge of and in exchange for the Reorganized TSC Debtors’ agreement to make distributions, if any, to the holders of Allowed Unsecured Claims and Other Equity Interests under the Plan, to provide management services to certain other Reorganized TSC Debtors and to use certain funds and assets, to the extent authorized in the Plan, to satisfy certain obligations between and among such Reorganized TSC Debtors, each and every Other Equity Interest in Classes 8b – 8i shall, subject to any Restructuring Transaction, at the option of the Reorganized TSC Debtors (in consultation with the Designated Holders), either (i) be retained, in which case the TSC Debtor holding such Other Equity Interests shall continue to hold such Other Equity Interests, and the legal, equitable and contractual rights to which the holders of such Other Equity Interests are entitled shall remain unaltered or (ii) be cancelled and new Other Equity Interests in the applicable Other TSC Debtor shall be issued pursuant to the Plan to the Reorganized TSC Debtor that holds such Other Equity Interests. For the avoidance of doubt, if the holders of Allowed Unsecured Claims in Classes 4c – 4i receive the equity in the reorganized entity corresponding to their respective Allowed Unsecured Claim, the holders of the applicable 8c – 8i Other Equity Interests will receive no distribution.
|
|
(iii)
|
Voting: Class 9b is Unimpaired and the holders of Class 9b Other Equity Interests are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f). Classes 9c – 9i are either (a) Unimpaired and the holders of the applicable Class 9c – 9i Other Equity Interests are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f) or (b) Impaired and the holders of the applicable Class 9c – 9i Other Equity Interests are conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Therefore, holders of Other Equity Interests in Classes 8b – 8i are not entitled to vote to accept or reject the Plan.
|
4
|
The failure by the Bankruptcy Court to approve these releases shall not render the Plan unconfirmable or otherwise affect the distributions to be made pursuant thereto.
|
Dated: January 12, 2012 | |||
Respectfully submitted,
|
|||
TerreStar Corporation (for itself and on behalf of each of the TSC Debtors)
|
|||
|
By:
|
/s/ Douglas Brandon | |
Name: Douglas Brandon | |||
Title: General Counsel & Secretary | |||
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
A.
|
Approval of the Disclosure Statement
|
B.
|
Approval of the Materials and Timeline for Soliciting Votes
|
|
(i)
|
Approval of the Solicitation Packages and Non-voting Status Notices
|
|
(a)
|
the Cover Letter, substantially in the form attached hereto as Exhibit 2 and incorporated by reference herein;
|
|
(b)
|
the Confirmation Hearing Notice, substantially in the form attached hereto as Exhibit 6 and incorporated by reference herein;
|
|
(c)
|
the Ballots, the Preferred Stock Ballots and the Master Preferred Stock Ballots (including a postage prepaid envelope), substantially in the forms attached hereto as Exhibit 3a, Exhibit 3b and Exhibit 3c, respectively, and incorporated by reference herein; and
|
|
(d)
|
the Disclosure Statement Order (without exhibits).3
|
|
(a)
|
holders of Claims for which Proofs of Claim have been timely filed, as reflected on the claims register as of the Voting Record Date; provided, however, that such Proofs of Claim have not been withdrawn, expunged or disallowed as of the Voting Record Date; provided, however, that holders of Claims to which an objection is pending as of the Voting Record Date shall receive a Solicitation Package with a Ballot in the amount of $1.00 (or a Ballot reflecting the undisputed portion of the Claim plus $1.00) and shall only be entitled to vote the disputed portion of such Claim in the amount of $1.00 unless such holders become eligible to vote the disputed portion of such Claim through a Resolution Event in accordance with the Solicitation and Voting Procedures;
|
|
(b)
|
holders of Claims listed in the Schedules in amounts in excess of $0 that are not listed as contingent, unliquidated or disputed and for which no Proof of Claim has been timely filed; provided, however, that each holder of a Claim that is scheduled as contingent, unliquidated or disputed, or any combination thereof, and that has been superseded by a timely filed Proof of Claim shall receive a Solicitation Package;
|
|
(c)
|
holders of Claims that arise pursuant to an agreement or settlement with the TSC Debtors, as reflected in a document filed with the Court, in an order of the Court or in a document executed by the TSC Debtors pursuant to authority granted by the Court, regardless of whether a Proof of Claim with respect to such Claim has been filed;
|
|
(d)
|
the assignee of any transferred or assigned Claim, but only if such transfer or assignment has been fully effectuated pursuant to the procedures dictated by Bankruptcy Rule 3001(e) and such transfer is reflected on the claims register on or before the Voting Record Date;
|
|
(e)
|
the Designated Holders; and
|
|
(f)
|
the holders, as of the Voting Record Date, of Class 8a Preferred Series A TSC Interests and Class 8b Preferred Series B TSC Interests.
|
|
(a)
|
Unimpaired Claims and Equity Interests – Conclusively Presumed to Accept: Holders of Claims and Equity Interests in Classes 1, 2, 5, 7, 9b, 9c, 9d, 9e, 9f, 9g, 9h and 9i, which are not Impaired under the Plan and, therefore, are conclusively presumed to have accepted the Plan, shall receive the notice substantially in the form attached hereto as Exhibit 4a and incorporated by reference herein;
|
|
(b)
|
Impaired Claims and Equity Interests – Deemed to Reject: Holders of Claims and Equity Interests in Classes 8c, 8d, 8e and 9a, which are receiving no distribution under the Plan and, therefore, are deemed to reject the Plan, shall receive the notice substantially in the form attached hereto as Exhibit 4b and incorporated by reference herein;
|
|
(c)
|
Contract and Lease Counterparties: Counterparties to the TSC Debtors’ Executory Contracts and Unexpired Leases shall receive the notice substantially in the form attached hereto as Exhibit 5 and incorporated by reference herein; and
|
|
(d)
|
Intercompany Claims and Intercompany Equity Interests: The TSC Debtors are not required to provide the holders of Intercompany Claims or intercompany Equity Interests with a Solicitation Package or any other type of notice.
|
|
(e)
|
Uncategorized Matrix Parties: The Confirmation Hearing Notice shall be distributed to all parties in the creditor matrix maintained by the Claims Agent.
|
|
(ii)
|
Approval of the Voting Record Date, Solicitation Deadline and Voting Deadline
|
|
(a)
|
Voting Record Date: January 10, 2012;4
|
|
(b)
|
Solicitation Deadline: January 27, 2012; and
|
|
(c)
|
Voting Deadline: February 24, 2012 at 5:00 p.m. (prevailing Eastern Time).
|
C.
|
Approval of the Solicitation and Voting Procedures
|
|
(i)
|
Procedures to Tabulate All Ballots and Master Preferred Stock Ballots:
|
|
(a)
|
Except in the TSC Debtors’ sole discretion, or as otherwise expressly set forth herein or by a final order of the Court, each and every Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot that is not timely submitted and actually received by the Claims Agent on or before the Voting Deadline shall not be counted.
|
|
(b)
|
The Claims Agent shall date and time-stamp all Ballots and Master Preferred Stock Ballots when received. The Claims Agent shall retain originals and copies of all Ballots and Master Preferred Stock Ballots for a period of one year after the effective date of the Plan, unless otherwise ordered by the Court.
|
|
(c)
|
Each party permitted to submit a Ballot or Master Preferred Stock Ballot shall submit an originally executed version of such Ballot or Master Preferred Stock Ballot in paper form to the Claims Agent. Submission of a Ballot or Master Preferred Stock Ballot by facsimile, email or any other electronic means shall not be valid and the TSC Debtors shall decline to count such Ballot or Master Preferred Stock Ballot in tabulating votes to accept or reject the Plan.
|
|
(d)
|
The TSC Debtors shall file a report of all votes received (a “Voting Report”) with the Court no later than seven calendar days before the Confirmation Hearing. The Voting Report shall, among other things, delineate every irregular Ballot and Master Preferred Stock Ballot including, without limitation, those Ballots and Master Preferred Stock Ballots that are late or (in whole or in material part as determined by the Claims Agent) illegible, unidentifiable, lacking signatures or lacking necessary information, received via facsimile or electronic mail or damaged. The Voting Report shall indicate the TSC Debtors’ intentions with regard to such irregular Ballots and Master Preferred Stock Ballots.
|
|
(e)
|
The method of delivery of Ballots and Master Preferred Stock Ballots to the Claims Agent is at the election and risk of each holder of a Claim or Equity Interest. Except as otherwise provided herein, such delivery will be deemed made only when the Claims Agent actually receives the originally executed Ballot or Master Preferred Stock Ballot.
|
|
(f)
|
No Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot shall be sent to any of the TSC Debtors, the TSC Debtors’ agents (other than the Claims Agent) or the TSC Debtors’ financial or legal advisors and if so sent shall not be counted and debt instruments or securities should not be sent with any Ballots, Preferred Stock Ballots or Master Preferred Stock Ballots.
|
|
(g)
|
Except in the TSC Debtors’ sole discretion, if multiple Ballots, Preferred Stock Ballots or Master Preferred Stock Ballots are received from the same holder of a Claim or Equity Interest with respect to the same Claim or Equity Interest before the Voting Deadline, the last valid Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot timely received will supersede and revoke in its entirety any previously received Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot.
|
|
(h)
|
Except in the TSC Debtors’ sole discretion, if Ballots, Preferred Stock Ballots or Master Preferred Stock Ballots are received from a holder of a Claim or Equity Interest and the holder’s attorney or legal representative with respect to the same Claim or Equity Interest before the Voting Deadline, the last valid Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot timely received will supersede and revoke in its entirety any previously received Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot.
|
|
(i)
|
Holders must vote all of their Claims or Equity Interests within a particular Class either to accept or reject the Plan and may not split any such votes. A Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot that includes an individual Claim or Equity Interest, the amount of which partially rejects and partially accepts an individual Plan, shall not be counted. Further, if a holder has multiple Claims or Equity Interests within the same Class, the TSC Debtors may, in their discretion, aggregate the Claims or Equity Interests of any particular holder within a Class for the purpose of counting votes.
|
|
(j)
|
A person signing a Ballot or Preferred Stock Ballot in its capacity as a trustee, executor, administrator, guardian, attorney in fact, officer of a corporation or otherwise acting in a fiduciary or representative capacity must indicate such capacity when signing and, if required or requested by the applicable nominee or its agent, the Claims Agent, the TSC Debtors or the Court, must submit proper evidence to the requesting party to so act on behalf of such holder or beneficial holder.
|
|
(k)
|
The TSC Debtors, in their sole discretion, subject to contrary order of the Court, may waive any defects or irregularities as to any particular Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot at any time, either before or after the close of voting, and any such waivers shall be documented in the Voting Report.
|
|
(l)
|
Neither the TSC Debtors, nor any other party (at the direction of counsel of the TSC Debtors), shall be required to provide notification of defects or irregularities with respect to delivered Ballots, Preferred Stock Ballots or Master Preferred Stock Ballots other than as provided in the Voting Report (although such parties are authorized to provide such notification), nor will any such party incur any liability for failure to provide such notification.
|
|
(m)
|
Unless waived by the TSC Debtors in their sole discretion and subject to contrary order of the Court, any defects or irregularities in connection with the delivery of a Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot must be cured before the Voting Deadline or such Ballots, Preferred Stock Ballots or Master Preferred Stock Ballots will not be counted in voting to accept or reject the Plan.
|
|
(n)
|
The Voting Deadline may be extended by (i) agreement between the holder of a Claim or Equity Interest entitled to vote and the TSC Debtors, in their sole discretion or (ii) order of the Court.
|
|
(o)
|
A Ballot, Preferred Stock Ballot or Master Preferred Stock Ballot shall not be counted in determining the acceptance or rejection of the Plan if it: (a) is illegible or contains insufficient information to permit the identification of the holder of the Claim or Equity Interest; (b) is submitted by a party that does not hold a Claim or Equity Interest in a Class that is entitled to vote on the Plan; (c) is submitted by a holder of a Claim listed in the Schedules as contingent, unliquidated or disputed, or any combination thereof, or in a zero or unknown amount, for which the applicable bar date has passed and no Proof of Claim was timely filed; (d) is unsigned or submitted without an original signature; (e) is not clearly marked to accept or reject the Plan or marked both to accept and reject the Plan; (f) is submitted by a holder of a Claim whose Claim is the subject of an objection that was filed on or before the Voting Record Date, except to the extent such Claim is undisputed, and which was not allowed (temporarily or otherwise) pursuant to a Resolution Event; or (g) is submitted by any entity not entitled to vote pursuant to the Bankruptcy Code, the Bankruptcy Rules or the procedures described herein.
|
|
(p)
|
Consistent with the language set forth in the Plan, to the extent that there are no Allowed Claims or Equity Interests in a Class with respect to a particular TSC Debtor (because all such claims have been resolved and satisfied in full or for any other reason), and such Class does not contain any Claim that has been temporarily allowed or estimated for voting purposes or whose holder by order of the Court is entitled to vote such Claim, such Class is deemed to be automatically eliminated with respect to such TSC Debtor and such Class shall be disregarded for all purposes.
|
|
(ii)
|
Procedures to Tabulate Votes Submitted to the Beneficial Holders of Equity Interests:
|
|
(a)
|
No later than three weeks before the Voting Deadline, the Claims Agent shall distribute or cause to be distributed the appropriate number of copies of Master Preferred Stock Ballots to each Nominee identified by the Claims Agent as a party through which beneficial holders hold equity interests in TSC.
|
|
(b)
|
Any Nominee that is a holder of record with respect to such equity interests shall vote on behalf of beneficial holders of such equity interests by: (a) distributing the Solicitation Package, including Preferred Stock Ballots, it receives from the Claims Agent to all such beneficial holders within five business days of receipt of such materials; (b) promptly collecting Preferred Stock Ballots from such beneficial holders that cast votes on the Plan; (c) compiling and validating the votes and other relevant information of all such beneficial holders on the Master Preferred Stock Ballot; and (d) transmitting the Master Preferred Stock Ballot to the Claims Agent by the Voting Deadline.
|
|
(c)
|
Any beneficial holder holding equity interests as a record holder in its own name shall vote on each of the applicable Plans by completing and signing a Preferred Stock Ballot and returning it directly to the Claims Agent on or before the Voting Deadline.
|
|
(d)
|
Any beneficial holder holding equity interests in “street name” through a Nominee (i.e., a brokerage firm, commercial bank, trust company or other nominee (or an agent thereof) or agent) must vote on the Plan through such Nominee by completing and signing the Preferred Stock Ballot and returning such Preferred Stock Ballot to the appropriate Nominee as promptly as possible and in sufficient time to allow such Nominee to process the Preferred Stock Ballot and return the Master Preferred Stock Ballot to the Claims Agent before the Voting Deadline. Any beneficial holder holding equity interests in “street name” that submits a Preferred Stock Ballot to the TSC Debtors, the TSC Debtors’ agents or the TSC Debtors’ financial or legal advisors will not have such Preferred Stock Ballot counted for purposes of accepting or rejecting the Plan.
|
|
(e)
|
Any Preferred Stock Ballot returned to a Nominee by a beneficial holder shall not be counted for purposes of accepting or rejecting the Plan until such Nominee properly completes and delivers to the Claims Agent a Master Preferred Stock Ballot that reflects the vote of such beneficial holders by the Voting Deadline or otherwise validates the Preferred Stock Ballot in a manner acceptable to the Claims Agent. Nominees shall retain all Preferred Stock Ballots returned by beneficial holders for a period of one year after the effective date of the Plan.
|
|
(f)
|
If a beneficial holder holds equity interests through more than one Nominee or through multiple accounts, such beneficial holder may receive more than one Preferred Stock Ballot and each such beneficial holder should execute a separate Preferred Stock Ballot for each block of equity interests that it holds through any Nominee and vote in the same manner to accept or reject (cannot split the vote) and must return each such Preferred Stock Ballot to the appropriate Nominee.
|
|
(g)
|
If a beneficial holder holds a portion of its equity interests through a Nominee or Nominees and another portion in its own name as the record holder, such beneficial holder should follow the procedures described in this subsection to vote the portion held in its own name and to vote the portion held by the Nominee(s).
|
|
(iii)
|
Establishing Claim Amounts for Voting Purposes:
|
|
(a)
|
For purposes of tabulating the amount of the Claim associated with each properly received vote, the TSC Debtors, with the assistance of the Claims Agent, shall, for voting purposes only, use the Claim amounts in accordance with the following hierarchy:
|
|
(1)
|
the Claim amount settled and/or agreed upon by the TSC Debtors as reflected in a pleading, stipulation, agreement or other document filed with the Court, in an order of the Court or in a document executed by the TSC Debtors pursuant to authority granted by the Court;
|
|
(2)
|
the Claim amount allowed (temporarily or otherwise) pursuant to a Resolution Event;
|
|
(3)
|
except to the extent a Claim has been paid during the TSC Debtors’ chapter 11 cases pursuant to the terms of a settlement, stipulation, order of the Court or otherwise, the Claim amount contained in a Proof of Claim that has been timely filed by the applicable bar date or determined to be timely filed by an order of the Court, except for any amounts in such Proofs of Claim asserted on account of any interest accrued after the Petition Date; provided, however, that Ballots cast by holders of Claims whose Claims are not listed on the Schedules, but that timely file a Proof of Claim in an unliquidated or unknown amount and whose Claims are not the subject of an objection will count, solely for the purposes of satisfying the dollar amount provisions of Bankruptcy Code section 1126(c), in the amount of $1.00, provided further that with respect to a Proof of Claim that is filed in a partially liquidated amount, such Claim will be counted in the liquidated amount for voting purposes;
|
|
(4)
|
the Claim amount listed in the Schedules to the extent that such Claim (I) is not listed on the Schedules as contingent, disputed or unliquidated or in an unknown or zero amount and (II) has not been paid during the TSC Debtors’ chapter 11 cases pursuant to the terms of a settlement, stipulation, order of the Court or otherwise; provided, however, that if the bar date applicable to a holder of a contingent, unliquidated or disputed Claim has not passed, then the amount of the Claim listed in the Schedules, solely for voting purposes;
|
|
(5)
|
holders of Claims for which Proofs of Claim have been timely filed, as reflected on the claims register as of the Voting Record Date; provided, however, that such Proofs of Claim have not been withdrawn, expunged or disallowed as of the Voting Record Date; provided, however, that holders of Claims to which an objection is pending as of the Voting Record Date shall receive a Solicitation Package with a Ballot in the amount of $1.00 (or a Ballot reflecting the undisputed portion of the Claim plus $1.00) and shall only be entitled to vote the disputed portion of such Claim in the amount of $1.00 unless such holders become eligible to vote the disputed portion of such Claim through a Resolution Event in accordance with the Solicitation and Voting Procedures; and
|
|
(6)
|
in the absence of any of the foregoing, zero dollars, in which case the creditor shall not be allowed to vote to accept or reject the Plan.
|
|
(b)
|
If a party that is entitled to vote has more than one Claim (either scheduled or filed or both) against a TSC Debtor based upon different transactions, said party shall be entitled to one vote per Class for numerosity purposes in the aggregate dollar amount of all of said Claims.
|
|
(c)
|
The Claim amount established pursuant to this section shall control for voting purposes only, and shall not constitute the allowed amount of any Claim.
|
|
(iv)
|
Criteria to Tabulate Preferred Stock Ballots and Master Preferred Stock Ballots Cast by Nominees and Beneficial Holders of Equity Interests:
|
|
(a)
|
Votes cast by beneficial holders through Nominees will be applied to the applicable positions held by such Nominees in Class 8 as of the Voting Record Date, as evidenced by the record and depository listings. Votes submitted by a Nominee, whether pursuant to a Master Preferred Stock Ballot or prevalidated Preferred Stock Ballot, will not be counted in excess of the amount of such equity interests held by such Nominee as of the Voting Record Date.
|
|
(b)
|
If conflicting votes or “over-votes” are submitted by a Nominee, whether pursuant to a Master Preferred Stock Ballot or prevalidated Preferred Stock Ballot, the TSC Debtors will use reasonable efforts to reconcile discrepancies with the Nominees.
|
|
(c)
|
If over-votes on a Master Preferred Stock Ballot or prevalidated Preferred Stock Ballot are not reconciled before the preparation of the Voting Report, the TSC Debtors shall apply the votes to accept and to reject the Plan in the same proportion as the votes to accept and to reject the Plan submitted on the Master Preferred Stock Ballot or prevalidated Preferred Stock Ballot that contained the overvote, but only to the extent of the Nominee’s position in Class 8.
|
|
(d)
|
For purposes of tabulating votes, each Nominee or beneficial holder will be deemed to have voted the aggregate number of its equity interests in Class 8.
|
|
(e)
|
A single Nominee may complete and deliver to the Claims Agent multiple Master Preferred Stock Ballots. Votes reflected on multiple Master Preferred Stock Ballots will be counted, except to the extent that they are duplicative of other Master Preferred Stock Ballots. If two or more Master Preferred Stock Ballots are inconsistent, the latest valid-dated Master Preferred Stock Ballot received prior to the Voting Deadline will, to the extent of such inconsistency, supersede and revoke any prior Master Preferred Stock Ballot.
|
|
(v)
|
Temporary Allowance of Claims for Voting Purposes
|
|
(a)
|
The amount of a Claim for voting purposes shall be calculated in accordance with Section C hereof. The holder of a Disputed Claim may seek to obtain one of the following “Resolution Events” by filing a motion with the Court pursuant to Bankruptcy Rule 3018(a) (each, a “Rule 3018 Motion”) to have its Claim allowed in a specified amount and/or classification for the purpose of accepting or rejecting the Plan. In order for the holder of a Disputed Claim to be entitled to vote on the Plan with respect to the disputed portion of its Claim, however, any such Resolution Event must occur no later than five business days before the Voting Deadline:
|
|
(1)
|
an order entered by the Court, after notice and a hearing, allowing a Disputed Claim in a specified amount;
|
|
(2)
|
an order entered by the Court temporarily allowing a Disputed Claim in a specified amount for voting purposes only pursuant to Bankruptcy Rule 3018(a), after notice and a hearing;
|
|
(3)
|
a stipulation or other agreement executed between the holder of a Disputed Claim and the TSC Debtors resolving the objection and allowing such Disputed Claim in an agreed-upon amount;
|
|
(4)
|
a stipulation or other agreement executed between the holder of the Disputed Claim and the TSC Debtors temporarily allowing the holder of such Disputed Claim to vote its Claim in an agreed-upon amount; or
|
|
(5)
|
a voluntary withdrawal by the TSC Debtors of a pending objection to the Disputed Claim.
|
|
(b)
|
If a Resolution Event occurs, then, no later than two business days thereafter, the Claims Agent shall distribute a Ballot and a pre-addressed, postage pre-paid envelope to the holder of Claim that has been Allowed for voting purposes only, which must be returned to the Claims Agent no later than the Voting Deadline.
|
D.
|
Approval of Procedures for Confirming the Plan
|
|
(a)
|
Plan Objection Deadline: February 24, 2012 at 5:00 p.m. (prevailing Eastern Time); and
|
|
(b)
|
Confirmation Hearing Date: March 7, 2012 at 10:00 a.m. (prevailing Eastern Time).
|
|
(a)
|
Counsel to the TSC Debtors: Akin Gump Strauss Hauer & Feld LLP, Attn: Ira Dizengoff and Arik Preis, One Bryant Park, New York, New York 10036 and Attn: Sarah Link Schultz, 1700 Pacific Avenue, Suite 4100, Dallas, Texas 75201;
|
|
(b)
|
Counsel to the Bridge Lenders and the DIP Lenders: Weil, Gotshal & Manges LLP, Attn: Debra A. Dandeneau and Ronit Berkovich, 767 Fifth Avenue, New York, New York 10153; Wachtell, Lipton, Rosen & Katz, Attn: Scott K. Charles and Alexander B. Lees, 51 West 52nd Street, New York, New York 10019; Quinn Emanuel Urquhart & Sullivan, LLP, Attn: Scott C. Shelley and Daniel Holzman, 51 Madison Avenue, 22nd Floor, New York, New York 10010;
|
|
(c)
|
Counsel to the Bridge Loan Agent and the DIP Agent: Quinn Emanuel Urquhart & Sullivan, LLP, Attn: Scott C. Shelley and Daniel Holzman, 51 Madison Avenue, 22nd Floor, New York, New York 10010;
|
|
(d)
|
U.S. Trustee: Office of the United States Trustee for the Southern District of New York, Attn: Susan Golden, Whitehall Street, 21st Floor, New York, New York 10004.
|
Dated: ______________, 2011
|
|
New York, New York
|
United States Bankruptcy Judge
|
In re:
TERRESTAR CORPORATION, et al.,1
Debtors.
|
)
)
)
)
)
)
|
Chapter 11
Case No. 11-10612 (SHL)
Jointly Administered
|
TO:
|
ALL HOLDERS OF CLAIMS, HOLDERS OF EQUITY INTERESTS AND
|
|
PARTIES IN INTEREST IN THE ABOVE-CAPTIONED CHAPTER 11 CASES
|
1
|
The debtors in these chapter 11 cases are: TerreStar Corporation; Motient Communications Inc.; Motient Holdings Inc.; Motient License Inc.; Motient Services Inc.; Motient Ventures Holdings Inc.; MVH Holdings Inc.; TerreStar Holdings Inc.; and TerreStar New York Inc.
|
2
|
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Disclosure Statement.
|
AKIN GUMP STRAUSS HAUER & FELD LLP | ||
Attn: Ira Dizengoff and Arik Preis
One Bryant Park
New York, New York 10036
(212) 872-1000 (Telephone)
(212) 872-1001 (Facsimile)
|
Attn: Sarah Link Schultz
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800 (Telephone)
(214) 969-4343 (Facsimile)
|
|
Counsel to the TSC Debtors
|
||
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Attn: Scott C. Shelley and Daniel Holzman
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000 (Telephone)
(212) 849-7100 (Facsimile)
|
WElL, GOTSHAL & MANGES LLP
Attn: Debra A. Dandeneau and Ronit Berkovich
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (Telephone)
(212) 310-8007 (Facsimile)
|
|
Counsel to the Bridge Loan Agent, the DIP Agent,
the Bridge Lenders and the DIP Lenders
|
Counsel to the Bridge Lenders and the DIP Lenders
|
|
WACHTELL, LIPTON, ROSEN & KATZ
Attn: Scott K. Charles and Alexander B. Lees
51 West 52nd Street
New York, New York 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
|
THE OFFICE OF THE UNITED STATES TRUSTEE
FOR THE SOUTHERN
DISTRICT OF NEW YORK
Attn: Susan D. Golden
33 Whitehall Street, Suite 2100
New York, NY 10004
|
|
Counsel to the Bridge Lenders and the DIP Lenders
|
United States Trustee
|
New York, New York
|
|
Dated: August 5, 2011
|
/s/ Ira S. Dizengoff
|
AKIN GUMP STRAUSS HAUER & FELD LLP
|
|
One Bryant Park
|
|
New York, New York 10036
|
|
(212) 872-1000 (Telephone)
|
|
(212) 872-1002 (Facsimile)
|
|
Ira S. Dizengoff
|
|
Arik Preis
|
|
1700 Pacific Avenue, Suite 4100
|
|
Dallas, Texas 75201
|
|
(214) 969-2800 (Telephone)
|
|
(214) 969-4343 (Facsimile)
|
|
Sarah Link Schultz
|
|
Counsel to the TSC Debtors
|
|
||
In re:
TERRESTAR CORPORATION, et al.,1
Debtors.
|
)
)
)
)
)
)
|
Chapter 11
Case No. 11-10612 (SHL)
Jointly Administered
|
|
1.
|
Motion for Entry of an Order (A) Approving the Disclosure Statement for the Joint Chapter 11 Plan of the TSC Debtors and (B) Establishing Solicitation and Voting Procedures with Respect to the Joint Chapter 11 Plan of the TSC Debtors [Docket No. 150] (the “Disclosure Statement Motion”).
|
1
|
The debtors in these chapter 11 cases, along with the last four digits of each debtor’s federal taxpayer-identification number, are: (a) TerreStar Corporation [6127] and TerreStar Holdings Inc. [0778] (collectively, the “February Debtors”); (b) TerreStar New York Inc. [6394]; Motient Communications Inc. [3833]; Motient Holdings Inc. [6634]; Motient License Inc. [2431]; Motient Services Inc. [5106]; Motient Ventures Holding Inc. [6191]; and MVH Holdings Inc. [9756] (collectively, the “Other TSC Debtors” and, collectively with the February Debtors, the “TSC Debtors”).
|
New York, New York
|
/s/ Ira S. Dizengoff
|
Dated: September 13, 2011
|
AKIN GUMP STRAUSS HAUER & FELD LLP
|
One Bryant Park
|
|
New York, New York 10036
|
|
(212) 872-1000 (Telephone)
|
|
(212) 872-1002 (Facsimile)
|
|
Ira S. Dizengoff
|
|
Arik Preis
|
|
1700 Pacific Avenue, Suite 4100
|
|
Dallas, Texas 75201
|
|
(214) 969-2800 (Telephone)
|
|
(214) 969-4343 (Facsimile)
|
|
Sarah Link Schultz
|
|
Counsel to the TSC Debtors
|
In re:
TERRESTAR CORPORATION, et al.,1
Debtors.
|
)
)
)
)
)
)
|
Chapter 11
Case No. 11-10612 (SHL)
Jointly Administered
|
|
1.
|
Motion for Entry of an Order (A) Approving the Disclosure Statement for the Joint Chapter 11 Plan of the TSC Debtors and (B) Establishing Solicitation and Voting Procedures with Respect to the Joint Chapter 11 Plan of the TSC Debtors [Docket No. 150] (the “Disclosure Statement Motion”).
|
1
|
The debtors in these chapter 11 cases, along with the last four digits of each debtor’s federal taxpayer-identification number, are: (a) TerreStar Corporation [6127] and TerreStar Holdings Inc. [0778] (collectively, the “February Debtors”); (b) TerreStar New York Inc. [6394]; Motient Communications Inc. [3833]; Motient Holdings Inc. [6634]; Motient License Inc. [2431]; Motient Services Inc. [5106]; Motient Ventures Holding Inc. [6191]; and MVH Holdings Inc. [9756] (collectively, the “Other TSC Debtors” and, collectively with the February Debtors, the “TSC Debtors”).
|
New York, New York
|
/s/ Ira S. Dizengoff
|
Dated: October 6, 2011
|
AKIN GUMP STRAUSS HAUER & FELD LLP
|
One Bryant Park
|
|
New York, New York 10036
|
|
(212) 872-1000 (Telephone)
|
|
(212) 872-1002 (Facsimile)
|
|
Ira S. Dizengoff
|
|
Arik Preis
|
|
1700 Pacific Avenue, Suite 4100
|
|
Dallas, Texas 75201
|
|
(214) 969-2800 (Telephone)
|
|
(214) 969-4343 (Facsimile)
|
|
Sarah Link Schultz
|
|
Counsel to the TSC Debtors
|
|
||
In re:
TERRESTAR CORPORATION, et al.,1
Debtors.
|
)
)
)
)
)
)
|
Chapter 11
Case No. 11-10612 (SHL)
Jointly Administered
|
|
1.
|
Motion for Entry of an Order (A) Approving the Disclosure Statement for the Joint Chapter 11 Plan of the TSC Debtors and (B) Establishing Solicitation and Voting Procedures with Respect to the Joint Chapter 11 Plan of the TSC Debtors [Docket No. 150] (the “Disclosure Statement Motion”).
|
1
|
The debtors in these chapter 11 cases, along with the last four digits of each debtor’s federal taxpayer-identification number, are: (a) TerreStar Corporation [6127] and TerreStar Holdings Inc. [0778] (collectively, the “February Debtors”); (b) TerreStar New York Inc. [6394]; Motient Communications Inc. [3833]; Motient Holdings Inc. [6634]; Motient License Inc. [2431]; Motient Services Inc. [5106]; Motient Ventures Holding Inc. [6191]; and MVH Holdings Inc. [9756] (collectively, the “Other TSC Debtors” and, collectively with the February Debtors, the “TSC Debtors”).
|
New York, New York
|
/s/ Ira S. Dizengoff
|
Dated: November 10, 2011
|
AKIN GUMP STRAUSS HAUER & FELD LLP
|
One Bryant Park
|
|
New York, New York 10036
|
|
(212) 872-1000 (Telephone)
|
|
(212) 872-1002 (Facsimile)
|
|
Ira S. Dizengoff
|
|
Arik Preis
|
|
1700 Pacific Avenue, Suite 4100
|
|
Dallas, Texas 75201
|
|
(214) 969-2800 (Telephone)
|
|
(214) 969-4343 (Facsimile)
|
|
Sarah Link Schultz
|
|
Counsel to the TSC Debtors
|
RE:
|
In re TerreStar Corporation, et al., Chapter 11 Case No. 11-10612 (SHL) (Jointly Administered)
|
YOU ARE RECEIVING THIS LETTER BECAUSE YOU ARE ENTITLED TO
VOTE ON THE PLAN. THEREFORE, YOU SHOULD READ THIS LETTER
CAREFULLY AND DISCUSS IT WITH YOUR ATTORNEY. IF YOU DO
NOT HAVE AN ATTORNEY, YOU MAY WISH TO CONSULT ONE.
|
|
i.
|
the Disclosure Statement, as approved by the Court (with all exhibits, including the Plan);
|
|
ii.
|
the Disclosure Statement Order (only including Exhibit 6 attached thereto);
|
|
iii.
|
the notice of the hearing to consider confirmation of the Plan; and
|
|
iv.
|
a ballot or preferred stock ballot, as applicable (together with detailed voting instructions and a postage prepaid return envelope, pre-addressed to the Claims Agent (identified below) or the nominee, as applicable).
|
THE TSC DEBTORS STRONGLY URGE YOU TO PROPERLY AND TIMELY
SUBMIT YOUR BALLOT CASTING A VOTE TO ACCEPT THE PLAN.
BALLOTS SHOULD BE SUBMITTED TO THE FOLLOWING ADDRESS:1
|
IF SENT BY FIRST CLASS MAIL:
THE GARDEN CITY GROUP, INC.
CLAIMS AGENT FOR TERRESTAR CORPORATION, ET AL.
P.O. BOX 9680
DUBLIN, OHIO 43017-4980
|
IF SENT BY HAND DELIVERY OR OVERNIGHT COURIER:
THE GARDEN CITY GROUP, INC.
CLAIMS AGENT FOR TERRESTAR CORPORATION, ET AL.
5151 BLAZER PARKWAY, SUITE A
DUBLIN, OHIO 43017
|
THE VOTING DEADLINE IS
5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012
|
Sincerely,
|
|
TerreStar Corporation on its own behalf and for
|
|
each of the above-referenced TSC Debtors
|
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
CLASS [__] – [_______]
|
PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS FOR COMPLETING BALLOTS CAREFULLY BEFORE COMPLETING THIS BALLOT. YOUR BALLOT MUST BE ACTUALLY RECEIVED BY THE GARDEN CITY GROUP, INC., THE TSC DEBTORS’ CLAIMS AGENT, BY 5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012, THE VOTING DEADLINE, OR YOUR VOTE WILL NOT BE COUNTED.
|
IMPORTANT
|
You should review the Disclosure Statement, the Plan, the Disclosure Statement Order and the instructions contained herein before you vote. You may wish to seek legal advice concerning the Plan and the classification and treatment of your Claim(s) under the Plan. Your Claim has been placed in Class [__] [________] under the Plan. If you hold Claims or Equity Interests in more than one Class, you will receive a separate Ballot or Preferred Stock Ballot, as applicable, for each Class in which you are entitled to vote.
|
If your vote is not received by the Claims Agent on or before the Voting Deadline and the deadline is not extended by this Court or by the TSC Debtors, your vote will not count as either an acceptance or rejection of the Plan. Ballots should be mailed to the following address:
|
If sent by first-class mail:
THE GARDEN CITY GROUP, INC.
CLAIMS AGENT FOR TERRESTAR CORPORATION, ET AL.
P.O. BOX 9680
DUBLIN, OHIO 43017-4980
|
If sent by hand delivery or overnight courier:
THE GARDEN CITY GROUP, INC.
CLAIMS AGENT FOR TERRESTAR CORPORATION, ET AL.
5151 BLAZER PARKWAY, SUITE A
DUBLIN, OHIO 43017
|
THE VOTING DEADLINE IS 5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012.
|
Ballots will not be accepted by facsimile transmission or electronic mail.
|
If the Plan is confirmed by the Court, it will be binding on you whether or not you vote.
|
HOW TO VOTE
|
|
1.
|
MAKE SURE THE INFORMATION CONTAINED IN ITEM 1 IS CORRECT.
|
2.
|
VOTE TO ACCEPT OR REJECT THE PLAN IN ITEM 2. THE TSC DEBTORS ARE SOLICITING VOTES ON THE PLAN ATTACHED AS EXHIBIT A TO THE DISCLOSURE STATEMENT. TO THIS END, HOLDERS OF CLASS [__] [_______] MAY CHOOSE TO ACCEPT OR REJECT THE PLAN, AS INDICATED IN ITEM 2 OF THE BALLOT.
|
3.
|
CHECK THE APPROPRIATE BOX IN ITEM 3 TO ELECT TO GRANT OR NOT GRANT THE RELEASES CONTAINED IN ARTICLE IX OF THE PLAN. ELECTION TO WITHHOLD CONSENT IS AT YOUR OPTION. IF YOU SUBMIT YOUR BALLOT WITHOUT EITHER BOX CHECKED IN ITEM 3, YOU WILL BE DEEMED TO CONSENT TO THE RELEASES SET FORTH IN ARTICLE IX OF THE PLAN.
|
4.
|
REVIEW THE CERTIFICATIONS AND ACKNOWLEDGEMENTS IN ITEM 4.
|
5.
|
SIGN THE BALLOT — YOUR ORIGINAL SIGNATURE IS REQUIRED ON THE BALLOT IN ORDER FOR YOUR VOTE TO COUNT.
|
6.
|
BALLOTS RECEIVED AFTER THE VOTING DEADLINE WILL NOT BE COUNTED.
|
7.
|
YOU MUST VOTE THE FULL AMOUNT OF YOUR CLAIM REPRESENTED BY THIS BALLOT TO ACCEPT OR REJECT THE PLAN AND MAY NOT SPLIT YOUR VOTE. YOU WILL BE DEEMED TO HAVE VOTED THE FULL AMOUNT OF YOUR CLAIM IN YOUR VOTE. A BALLOT THAT PARTIALLY REJECTS AND PARTIALLY ACCEPTS THE PLAN WILL NOT BE COUNTED.
|
8.
|
ANY EXECUTED BALLOT RECEIVED THAT (A) DOES NOT INDICATE EITHER AN ACCEPTANCE OR REJECTION OF THE PLAN OR (B) THAT INDICATES BOTH AN ACCEPTANCE AND REJECTION OF THE PLAN WILL NOT BE COUNTED.
|
9.
|
ALL BALLOTS MUST BE FULLY EXECUTED TO BE COUNTED. IF YOU ARE COMPLETING THIS BALLOT ON BEHALF OF ANOTHER PERSON OR ENTITY, INDICATE YOUR RELATIONSHIP WITH SUCH PERSON OR ENTITY AND THE CAPACITY IN WHICH YOU ARE SIGNING.
|
$
|
|
o |
ACCEPT THE PLAN
|
|
o |
REJECT THE PLAN
|
o
|
OPT OUT OF THE RELEASES
|
o
|
NOT OPT OUT OF THE RELEASES2
|
Name of Creditor (Please Print)
|
|
Authorized Signature
|
|
Name of Signatory
|
|
If by Authorized Agent, Name and Title3
|
|
Street Address
|
|
City, State, Zip Code
|
|
Telephone Number
|
|
Social Security/Tax Identification Number4
|
|
Date Completed
|
|
o |
future notice mailings; AND/OR
|
|
o |
distributions
|
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
CLASS 8[__] – Preferred Series [__] TSC Interests
CUSIP #[________]
PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS FOR COMPLETING BALLOTS CAREFULLY BEFORE COMPLETING THIS PREFERRED STOCK BALLOT.
YOUR PREFERRED STOCK BALLOT MUST BE SENT TO YOUR NOMINEE SO THAT THE MASTER PREFERRED STOCK BALLOT CAST ON YOUR BEHALF IS ACTUALLY RECEIVED BY THE GARDEN CITY GROUP, INC., THE TSC DEBTORS’ CLAIMS AGENT, BY 5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012, THE VOTING DEADLINE, OR YOUR VOTE WILL NOT BE COUNTED.
|
IMPORTANT
|
You should review the Disclosure Statement, the Plan, the Disclosure Statement Order and the instructions contained herein before you vote. You may wish to seek legal advice concerning the Plan and the classification and treatment of your Equity Interest(s) under the Plan. Your Equity Interest has been placed in Class 8[__] Preferred Series [__] TSC Interests under the Plan. If you hold Claims or Equity Interests in more than one Class, you will receive a separate Ballot or Preferred Stock Ballot, as applicable, for each Class in which you are entitled to vote.
|
If your Preferred Stock Ballot is not sent to the Nominee with enough time for the Nominee to cast your vote on a Master Preferred Stock Ballot and send the Master Preferred Stock Ballot to the Claims Agent on or before the Voting Deadline and the deadline is not extended by this Court or by the TSC Debtors, your vote will not count as either an acceptance or rejection of the Plan. Preferred Stock Ballots should be mailed back to your Nominee in the enclosed envelope.
|
THE VOTING DEADLINE IS 5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012. TO PROVIDE SUFFICIENT TIME FOR YOUR NOMINEE TO COMPILE AND SUBMIT A MASTER BALLOT, IT IS STRONGLY RECOMMENDED YOU COMPLETE, SIGN AND RETURN THIS PREFERRED STOCK BALLOT TO YOUR NOMINEE SO THAT IT IS ACTUALLY RECEIVED BY YOUR NOMINEE ON OR BEFORE FEBRUARY 22, 2012.
|
Preferred Stock Ballots will not be accepted by facsimile transmission or electronic mail.
|
If the Plan is confirmed by the Court, it will be binding on you whether or not you vote.
|
HOW TO VOTE
|
|
1.
|
PROVIDE THE INFORMATION REQUIRED BY ITEM 1.
|
2.
|
VOTE TO ACCEPT OR REJECT THE PLAN IN ITEM 2. THE TSC DEBTORS ARE SOLICITING VOTES ON THE PLAN ATTACHED AS EXHIBIT A TO THE DISCLOSURE STATEMENT. TO THIS END, HOLDERS OF CLASS 8[__] PREFERRED SERIES [__] TSC INTERESTS MAY CHOOSE TO ACCEPT OR REJECT THE PLAN, AS INDICATED IN ITEM 2 OF THE PREFERRED STOCK BALLOT.
|
3.
|
PROVIDE THE INFORMATION REQUIRED BY ITEM 3, IF APPLICABLE TO YOU.
|
4.
|
CHECK THE APPROPRIATE BOX IN ITEM 4 TO ELECT TO GRANT OR NOT GRANT THE RELEASES CONTAINED IN ARTICLE IX OF THE PLAN. ELECTION TO WITHHOLD CONSENT IS AT YOUR OPTION. IF YOU SUBMIT YOUR BALLOT WITHOUT EITHER BOX CHECKED IN ITEM 4, YOU WILL BE DEEMED TO CONSENT TO THE RELEASES SET FORTH IN ARTICLE IX OF THE PLAN.
|
5.
|
CHECK THE APPROPRIATE BOX IN ITEM 5 REGARDING YOUR CURRENT HOLDINGS OF TSC SERIES A AND B PREFERRED STOCK. IF YOU ANSWER “YES” IN ITEM 5, PLEASE BE ADVISED THAT COUNSEL FOR THE TSC DEBTORS MAY CONTACT YOU TO GATHER FURTHER INFORMATION REGARDING YOUR HOLDINGS OF TSC SERIES A AND B PREFERRED STOCK.
|
6.
|
REVIEW THE CERTIFICATIONS AND ACKNOWLEDGEMENTS IN ITEM 6.
|
7.
|
SIGN THE PREFERRED STOCK BALLOT — YOUR ORIGINAL SIGNATURE IS REQUIRED ON THE PREFERRED STOCK BALLOT IN ORDER FOR YOUR VOTE TO COUNT.
|
8.
|
SEND THE PREFERRED STOCK BALLOT SUCH THAT YOUR NOMINEE HAS ENOUGH TIME TO CAST YOUR VOTE ON A MASTER PREFERRED STOCK BALLOT AND SEND THE MASTER PREFERRED STOCK BALLOT TO THE CLAIMS AGENT ON OR BEFORE THE VOTING DEADLINE.
|
9.
|
YOU MUST VOTE THE FULL AMOUNT OF YOUR EQUITY INTEREST REPRESENTED BY THIS PREFERRED STOCK BALLOT TO ACCEPT OR REJECT THE PLAN AND MAY NOT SPLIT YOUR VOTE. YOU WILL BE DEEMED TO HAVE VOTED THE FULL AMOUNT OF YOUR EQUITY INTEREST IN YOUR VOTE. A PREFERRED STOCK BALLOT THAT PARTIALLY REJECTS AND PARTIALLY ACCEPTS THE PLAN WILL NOT BE COUNTED.
|
10.
|
ANY EXECUTED PREFERRED STOCK BALLOT RECEIVED THAT (A) DOES NOT INDICATE EITHER AN ACCEPTANCE OR REJECTION OF THE PLAN OR (B) THAT INDICATES BOTH AN ACCEPTANCE AND REJECTION OF THE PLAN WILL NOT BE COUNTED.
|
11.
|
ALL PREFERRED STOCK BALLOTS MUST BE FULLY EXECUTED TO BE COUNTED. IF YOU ARE COMPLETING THIS PREFERRED STOCK BALLOT ON BEHALF OF ANOTHER PERSON OR ENTITY, INDICATE YOUR RELATIONSHIP WITH SUCH PERSON OR ENTITY AND THE CAPACITY IN WHICH YOU ARE SIGNING.
|
|
o
|
ACCEPT THE PLAN
|
o
|
REJECT THE PLAN
|
Account Number
|
Name of Bank, Broker or Other
Nominee Through Which Other Class
8[__] Preferred Series [__] TSC
Interests Are Held
|
Principal Amount of Other Class 8[__]
Preferred Series [__] TSC Interests
Voted
|
1.
|
||
2.
|
||
3.
|
o
|
OPT OUT OF THE RELEASES
|
o
|
NOT OPT OUT OF THE RELEASES2
|
o
|
YES
|
o
|
NO
|
Name of Equity Holder (Please Print)
|
|
Authorized Signature
|
|
Name of Signatory
|
|
If by Authorized Agent, Name and Title3
|
|
Street Address
|
|
City, State, Zip Code
|
|
Telephone Number
|
|
Date Completed |
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
CLASS 8[__] – PREFERRED SERIES [__] TSC INTERESTS
CUSIP #[________]
|
PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS
FOR COMPLETING BALLOTS CAREFULLY BEFORE
COMPLETING THIS MASTER PREFERRED STOCK BALLOT.
THE MASTER PREFERRED STOCK BALLOT MUST BE ACTUALLY RECEIVED BY
THE GARDEN CITY GROUP, INC., THE TSC DEBTORS’ CLAIMS AGENT,
BY 5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012,
THE VOTING DEADLINE, OR THE VOTES REPRESENTED BY
THE MASTER PREFERRED STOCK BALLOT WILL NOT BE COUNTED.
|
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR ANY OTHER PERSON AN AGENT OF ANY OF THE TSC DEBTORS OR THE CLAIMS AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF ANY OF THEM WITH RESPECT TO THE PLAN.
|
IMPORTANT
|
PLEASE READ AND FOLLOW THE ATTACHED INSTRUCTIONS CAREFULLY. COMPLETE, SIGN AND DATE THE MASTER PREFERRED STOCK BALLOT, AND RETURN IT SO THAT IT IS RECEIVED BY THE CLAIMS AGENT ON OR BEFORE THE VOTING DEADLINE BY 5:00 P.M. (PREVAILING EASTERN TIME) ON FEBRUARY 24, 2012. IF THIS MASTER PREFERRED STOCK BALLOT IS NOT COMPLETED, SIGNED AND RECEIVED ON OR BEFORE THE VOTING DEADLINE AND THE VOTING DEADLINE IS NOT EXTENDED BY THE COURT OR THE TSC DEBTORS, THE VOTES TRANSMITTED BY THIS MASTER PREFERRED STOCK BALLOT WILL NOT BE COUNTED.
|
You should review the Disclosure Statement, the Plan, the Disclosure Statement Order and the instructions contained herein before you transmit votes. You or the beneficial holder of the Class 8[__] Preferred Series [__] TSC Interests for whom you are the Nominee (or agent thereof) may wish to seek legal advice concerning the Plan and the classification and treatment of Class 8[__] Preferred Series [__] TSC Interests under the Plan. Such Equity Interests have been placed in Class 8[__] Preferred Series [__] TSC Interests under the Plan.
|
If the Plan is confirmed by the Court, it will be binding on you and the beneficial holders of Class 8[__] Preferred Series [__] TSC Interests for whom you are the Nominee (or agent thereof), whether or not such beneficial owners vote and whether or not any votes are transmitted by this Master Preferred Stock Ballot.
|
Master Preferred Stock Ballots will not be accepted by facsimile transmission or electronic mail.
|
|
1.
|
Check the appropriate box in Item 1 on this Master Preferred Stock Ballot.
|
|
2.
|
In Item 2 of this Master Preferred Stock Ballot, indicate the votes to accept or reject the Plan, as transmitted to you by the beneficial holders of Class 8[__] Preferred Series [__] TSC Interests. To identify such beneficial holders without disclosing their names, please use the customer account number assigned to you by each such beneficial owner, or if no such customer account number exists, please assign a number to each account (making sure to retain a separate list of each beneficial owner and the assigned number). IMPORTANT: BENEFICIAL OWNERS MAY NOT SPLIT THEIR VOTES. EACH BENEFICIAL OWNER MUST VOTE ALL OF THEIR CLASS 8[__] PREFERRED SERIES [__] TSC INTERESTS EITHER TO ACCEPT OR REJECT THE PLAN. IF ANY BENEFICIAL OWNER HAS ATTEMPTED TO SPLIT SUCH VOTE, PLEASE CONTACT THE CLAIMS AGENT IMMEDIATELY. Any Preferred Stock Ballot or Master Preferred Stock Ballot that is validly executed but (i) which does not indicate an acceptance or rejection of the Plan by the indicated beneficial owner or (ii) indicates both an acceptance and rejection of the Plan by the indicated beneficial owner will not be counted as to such beneficial owner.
|
|
3.
|
Please note that Item 3 of this Master Preferred Stock Ballot requests that you transcribe the information provided by each beneficial owner from Item 3 of each completed Preferred Stock Ballot relating to the Class 8[__] Preferred Series [__] TSC Interests voted.
|
|
4.
|
Please note that Item 4 of this Master Preferred Stock Ballot requests that you transcribe the information provided by each beneficial owner from Item 4 of each completed Preferred Stock Ballot with respect to whether each beneficial owner of Class 8[__] Preferred Series [__] TSC Interests indicated to opt out or not opt out of the releases contained in Article IX of the Plan.
|
|
5.
|
Review the certification in Item 6 of the Master Preferred Stock Ballot.
|
|
6.
|
In Item 6, sign and date the Master Preferred Stock Ballot and provide the remaining information requested.
|
|
7.
|
If additional space is required to respond to any item on the Master Preferred Stock Ballot, please use additional sheets of paper clearly marked to indicate the applicable Item of the Master Preferred Stock Ballot to which you are responding.
|
|
8.
|
Deliver the completed and executed Master Preferred Stock Ballot so as to be actually received by the Claims Agent before the Voting Deadline. For each completed and executed Preferred Stock Ballot returned to you by a beneficial owner, either forward such Preferred Stock Ballot (along with your Master Preferred Stock Ballot) to the Claims Agent or retain such Preferred Stock Ballot in your files for one year from the Voting Deadline.
|
IF YOU HAVE ANY QUESTIONS REGARDING THIS MASTER PREFERRED STOCK BALLOT OR THE VOTING PROCEDURES, OR IF YOU NEED ADDITIONAL COPIES OF THE MASTER PREFERRED STOCK BALLOT, PREFERRED STOCK BALLOTS, THE DISCLOSURE STATEMENT OR OTHER RELATED MATERIALS, PLEASE CALL THE CLAIMS AGENT AT (888) 872-9182.
|
o
|
is a broker, bank or other Nominee for the beneficial holder of Class 8[__] Preferred Series [__] TSC Interests in the aggregate number of preferred shares listed in Item 2 below as of January 10, 2012, or is the registered holder of such securities; or
|
o
|
is acting under a power of attorney and/or agency (a copy of which will be provided upon request) granted by a broker, bank or other Nominee or a beneficial owner that on January 10, 2012 was the holder of the aggregate number of preferred shares listed on Item 2 below; or
|
o
|
is acting under a proxy granted by a broker, bank or other Nominee for the beneficial owners (please attach a copy of the proxy to the Master Preferred Stock Ballot),
|
Customer Name or Account Number for
Each Beneficial Owner
|
Votes on the Plan
|
|
Accept the Plan
|
Reject the Plan
|
|
1.
|
||
2.
|
||
3.
|
||
4.
|
||
5.
|
||
6.
|
||
7.
|
||
8.
|
||
9.
|
||
10.
|
||
TOTALS
|
Customer Name or
Account Number for
Each Beneficial
Holder of Class 8[__]
Preferred Series [__]
TSC Interests that
Completed Item 3
|
Transcribe From Item 3 of Preferred Stock Ballot
|
||
Account Number
|
Name of Bank, Broker
or Other Nominee
Through Which Other
Notes Are Held
|
Number of Shares of Other Class 8[__]
Preferred Series [__] TSC Interests Voted
|
|
1.
|
|||
2.
|
|||
3.
|
|||
4.
|
|||
5.
|
|||
6.
|
|||
7.
|
|||
8.
|
|||
9.
|
|||
10.
|
Customer Name or Account Number for
Each Beneficial Owner
|
Elections with Respect to the Releases
|
|
Opt Out of the Releases
|
Not Opt Out of the Releases
|
|
1.
|
||
2.
|
||
3.
|
||
4.
|
||
5.
|
||
6.
|
||
7.
|
||
8.
|
||
9.
|
||
10.
|
||
TOTALS
|
Customer Name or Account Number for
Each Beneficial Owner of 17,500 or More Shares of TSC’s Series A and B Preferred Stock
|
1.
|
2.
|
3.
|
4.
|
5.
|
6.
|
7.
|
8.
|
9.
|
10.
|
Name of Broker, Bank or Other Nominee (Please Print)
|
|
Participant Number
|
|
Name of Proxy Holder or Agent for Broker, Bank or Other Nominee (if applicable)
|
|
Signature
|
|
Print Name
|
|
Title (if appropriate)
|
Street Address
|
|
City, State, Zip Code
|
|
Telephone Number
|
|
Date Completed
|
THIS MASTER PREFERRED STOCK BALLOT MUST BE RECEIVED BY THE CLAIMS AGENT AT THE ADDRESS LISTED BELOW, BEFORE 5:00 P.M., (PREVAILING EASTERN TIME), ON FEBRUARY 24, 2012, OR THE VOTES TRANSMITTED HEREBY WILL NOT BE COUNTED.
If sent by first-class mail:
THE GARDEN CITY GROUP, INC.
CLAIMS AGENT FOR TERRESTAR CORPORATION, ET AL.
P.O. BOX 9680
DUBLIN, OHIO 43017-4980
If sent by hand delivery or overnight courier:
THE GARDEN CITY GROUP, INC.
CLAIMS AGENT FOR TERRESTAR CORPORATION, ET AL.
5151 BLAZER PARKWAY, SUITE A
DUBLIN, OHIO 43017
PLEASE NOTE: THE CLAIMS AGENT WILL NOT ACCEPT PREFERRED STOCK BALLOTS OR MASTER PREFERRED STOCK BALLOTS BY FACSIMILE OR OTHER MEANS OF ELECTRONIC TRANSMISSION.
ANY PREFERRED STOCK BALLOT OR MASTER PREFERRED STOCK BALLOT THAT DOES NOT INDICATE EITHER AN ACCEPTANCE OR A REJECTION OF THE PLAN, OR THAT INDICATES BOTH AN ACCEPTANCE AND A REJECTION OF THE PLAN, WILL NOT BE COUNTED.
|
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
AKIN GUMP STRAUSS HAUER & FELD LLP | ||
Attn: Ira Dizengoff and Arik Preis
One Bryant Park
New York, New York 10036
(212) 872-1000 (Telephone)
(212) 872-1001 (Facsimile)
|
Attn: Sarah Link Schultz
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800 (Telephone)
(214) 969-4343 (Facsimile)
|
|
Counsel to the TSC Debtors
|
||
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Attn: Scott C. Shelley and Daniel Holzman
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000 (Telephone)
(212) 849-7100 (Facsimile)
|
WEIL, GOTSHAL & MANGES LLP
Attn: Debra A. Dandeneau and Ronit Berkovich
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (Telephone)
(212) 310-8007 (Facsimile)
|
|
Counsel to the Bridge Loan Agent, the DIP Agent,
the Bridge Lenders and the DIP Lenders
|
Counsel to the Bridge Lenders and the DIP Lenders
|
|
WACHTELL, LIPTON, ROSEN & KATZ
Attn: Scott K. Charles and Alexander B. Lees
51 West 52nd Street
New York, New York 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
|
THE OFFICE OF THE UNITED STATES
TRUSTEE FOR THE SOUTHERN
DISTRICT OF NEW YORK
Attn: Susan D. Golden
33 Whitehall Street, Suite 2100
New York, NY 10004
|
|
Counsel to the Bridge Lenders and the DIP Lenders
|
United States Trustee
|
ARTICLE IX OF THE PLAN CONTAINS RELEASE, EXCULPATION
AND INJUNCTION PROVISIONS, AND ARTICLE IX.B. CONTAINS A THIRD-
PARTY RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.2
|
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY. IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN ADDITIONAL INFORMATION, CONTACT THE CLAIMS AGENT AT (888) 872-9182. PLEASE DO NOT DIRECT ANY INQUIRIES TO THE COURT. THE CLAIMS AGENT IS NOT AUTHORIZED TO, AND WILL NOT, PROVIDE LEGAL ADVICE.
|
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
AKIN GUMP STRAUSS HAUER & FELD LLP | ||
Attn: Ira Dizengoff and Arik Preis
One Bryant Park
New York, New York 10036
(212) 872-1000 (Telephone)
(212) 872-1001 (Facsimile)
|
Attn: Sarah Link Schultz
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800 (Telephone)
(214) 969-4343 (Facsimile)
|
|
Counsel to the TSC Debtors
|
||
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Attn: Scott C. Shelley and Daniel Holzman
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000 (Telephone)
(212) 849-7100 (Facsimile)
|
WEIL, GOTSHAL & MANGES LLP
Attn: Debra A. Dandeneau and Ronit Berkovich
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (Telephone)
(212) 310-8007 (Facsimile)
|
|
Counsel to the Bridge Loan Agent, the DIP Agent,
the Bridge Lenders and the DIP Lenders
|
Counsel to the Bridge Lenders and the DIP Lenders
|
|
WACHTELL, LIPTON, ROSEN & KATZ
Attn: Scott K. Charles and Alexander B. Lees
51 West 52nd Street
New York, New York 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
|
THE OFFICE OF THE UNITED STATES
TRUSTEE FOR THE SOUTHERN
DISTRICT OF NEW YORK
Attn: Susan D. Golden
33 Whitehall Street, Suite 2100
New York, NY 10004
|
|
Counsel to the Bridge Lenders and the DIP Lenders
|
United States Trustee
|
ARTICLE IX OF THE PLAN CONTAINS RELEASE, EXCULPATION
AND INJUNCTION PROVISIONS, AND ARTICLE IX.B. CONTAINS A THIRD-
PARTY RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.2
|
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY. IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN ADDITIONAL INFORMATION, CONTACT THE CLAIMS AGENT AT (888) 872-9182. PLEASE DO NOT DIRECT ANY INQUIRIES TO THE COURT. THE CLAIMS AGENT IS NOT AUTHORIZED TO, AND WILL NOT, PROVIDE LEGAL ADVICE.
|
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
AKIN GUMP STRAUSS HAUER & FELD LLP | ||
Attn: Ira Dizengoff and Arik Preis
One Bryant Park
New York, New York 10036
(212) 872-1000 (Telephone)
(212) 872-1001 (Facsimile)
|
Attn: Sarah Link Schultz
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800 (Telephone)
(214) 969-4343 (Facsimile)
|
|
Counsel to the TSC Debtors
|
||
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Attn: Scott C. Shelley and Daniel Holzman
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000 (Telephone)
(212) 849-7100 (Facsimile)
|
WEIL, GOTSHAL & MANGES LLP
Attn: Debra A. Dandeneau and Ronit Berkovich
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (Telephone)
(212) 310-8007 (Facsimile)
|
|
Counsel to the Bridge Loan Agent, the DIP Agent,
the Bridge Lenders and the DIP Lenders
|
Counsel to the Bridge Lenders and the DIP Lenders
|
|
WACHTELL, LIPTON, ROSEN & KATZ
Attn: Scott K. Charles and Alexander B. Lees
51 West 52nd Street
New York, New York 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
|
THE OFFICE OF THE UNITED STATES
TRUSTEE FOR THE SOUTHERN
DISTRICT OF NEW YORK
Attn: Susan D. Golden
33 Whitehall Street, Suite 2100
New York, NY 10004
|
|
Counsel to the Bridge Lenders and the DIP Lenders
|
United States Trustee
|
ARTICLE IX OF THE PLAN CONTAINS RELEASE, EXCULPATION
AND INJUNCTION PROVISIONS, AND ARTICLE IX.B. CONTAINS A THIRD-
PARTY RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.2
|
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY. IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN ADDITIONAL INFORMATION, CONTACT THE CLAIMS AGENT AT (888) 872-9182. PLEASE DO NOT DIRECT ANY INQUIRIES TO THE COURT. THE CLAIMS AGENT IS NOT AUTHORIZED TO, AND WILL NOT, PROVIDE LEGAL ADVICE.
|
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
AKIN GUMP STRAUSS HAUER & FELD LLP | ||
Attn: Ira Dizengoff and Arik Preis
One Bryant Park
New York, New York 10036
(212) 872-1000 (Telephone)
(212) 872-1001 (Facsimile)
|
Attn: Sarah Link Schultz
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800 (Telephone)
(214) 969-4343 (Facsimile)
|
|
Counsel to the TSC Debtors
|
||
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Attn: Scott C. Shelley and Daniel Holzman
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000 (Telephone)
(212) 849-7100 (Facsimile)
|
WEIL, GOTSHAL & MANGES LLP
Attn: Debra A. Dandeneau and Ronit Berkovich
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (Telephone)
(212) 310-8007 (Facsimile)
|
|
Counsel to the Bridge Loan Agent, the DIP Agent,
the Bridge Lenders and the DIP Lenders
|
Counsel to the Bridge Lenders and the DIP Lenders
|
|
WACHTELL, LIPTON, ROSEN & KATZ
Attn: Scott K. Charles and Alexander B. Lees
51 West 52nd Street
New York, New York 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
|
THE OFFICE OF THE UNITED STATES
TRUSTEE FOR THE SOUTHERN
DISTRICT OF NEW YORK
Attn: Susan D. Golden
33 Whitehall Street, Suite 2100
New York, NY 10004
|
|
Counsel to the Bridge Lenders and the DIP Lenders
|
United States Trustee
|
ARTICLE IX OF THE PLAN CONTAINS RELEASE, EXCULPATION
AND INJUNCTION PROVISIONS, AND ARTICLE IX.B. CONTAINS A THIRD-
PARTY RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.3
|
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY. IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN ADDITIONAL INFORMATION, CONTACT THE CLAIMS AGENT AT
(888) 872-9182. PLEASE DO NOT DIRECT ANY INQUIRIES TO THE COURT. THE CLAIMS AGENT IS NOT AUTHORIZED TO, AND WILL NOT, PROVIDE LEGAL ADVICE. |
)
|
||
In re:
|
)
|
Chapter 11
|
)
|
||
TERRESTAR CORPORATION, et al.,1
|
)
|
Case No. 11-10612 (SHL)
|
)
|
||
Debtors.
|
)
|
Jointly Administered
|
)
|
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU ARE ENTITLED TO
VOTE ON THE PLAN. THEREFORE, YOU SHOULD READ THIS LETTER
CAREFULLY AND DISCUSS IT WITH YOUR ATTORNEY. IF YOU DO
NOT HAVE AN ATTORNEY, YOU MAY WISH TO CONSULT ONE.
|
TO:
|
ALL HOLDERS OF CLAIMS, HOLDERS OF EQUITY INTERESTS AND
|
|
PARTIES IN INTEREST IN THE ABOVE-CAPTIONED CHAPTER 11 CASES
|
PLEASE BE ADVISED: THE CONFIRMATION HEARING MAY BE CONTINUED FROM TIME TO TIME BY THE COURT OR THE TSC DEBTORS WITHOUT FURTHER NOTICE OTHER THAN BY SUCH ADJOURNMENT BEING ANNOUNCED IN OPEN COURT OR BY A NOTICE OF ADJOURNMENT FILED WITH THE COURT AND SERVED ON THE LIST OF ALL PARTIES REQUIRED TO BE NOTIFIED UNDER BANKRUPTCY RULE 2002 AND LOCAL RULE 2002-1 AND OTHER PARTIES ENTITLED TO NOTICE.
|
ARTICLE IX OF THE PLAN CONTAINS RELEASE, EXCULPATION,
AND INJUNCTION PROVISIONS, AND ARTICLE IX.B. CONTAINS
A THIRD-PARTY RELEASE. THUS, YOU ARE ADVISED TO REVIEW
AND CONSIDER THE PLAN CAREFULLY BECAUSE YOUR RIGHTS
MIGHT BE AFFECTED THEREUNDER.4
|
AKIN GUMP STRAUSS HAUER & FELD LLP | ||
Attn: Ira Dizengoff and Arik Preis
One Bryant Park
New York, New York 10036
(212) 872-1000 (Telephone)
(212) 872-1001 (Facsimile)
|
Attn: Sarah Link Schultz
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-2800 (Telephone)
(214) 969-4343 (Facsimile)
|
|
Counsel to the TSC Debtors
|
||
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Attn: Scott C. Shelley and Daniel Holzman
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000 (Telephone)
(212) 849-7100 (Facsimile)
|
WEIL, GOTSHAL & MANGES LLP
Attn: Debra A. Dandeneau and Ronit Berkovich
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (Telephone)
(212) 310-8007 (Facsimile)
|
|
Counsel to the Bridge Loan Agent, the DIP Agent,
the Bridge Lenders and the DIP Lenders
|
Counsel to the Bridge Lenders and the DIP Lenders
|
|
WACHTELL, LIPTON, ROSEN & KATZ
Attn: Scott K. Charles and Alexander B. Lees
51 West 52nd Street
New York, New York 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
|
THE OFFICE OF THE UNITED STATES
TRUSTEE FOR THE SOUTHERN
DISTRICT OF NEW YORK
Attn: Susan D. Golden
33 Whitehall Street, Suite 2100
New York, NY 10004
|
|
Counsel to the Bridge Lenders and the DIP Lenders
|
United States Trustee
|
BINDING NATURE OF THE PLAN:
THE PLAN SHALL BIND ALL HOLDERS OF CLAIMS AND EQUITY INTERESTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER OR NOT SUCH HOLDER WILL RECEIVE OR RETAIN ANY PROPERTY OR INTEREST IN PROPERTY UNDER THE PLAN, HAS FILED A PROOF OF CLAIM OR PROOF OF INTEREST IN THE CHAPTER 11 CASES OR FAILED TO VOTE TO ACCEPT OR REJECT THE PLAN OR VOTED TO REJECT THE PLAN.
|
Liquidation Analysis
|
||||||||||||||||||||
Unaudited, $ in millions
|
||||||||||||||||||||
Adj. Projected
|
Estimated
|
|||||||||||||||||||
Book Value as of
|
Liquidation Value
|
|||||||||||||||||||
Debtors' Assets
|
Note
|
3/31/2012
|
Low
|
High
|
||||||||||||||||
Cash and cash equivalents
|
A | $ | 17 | $ | 17 | $ | 17 | |||||||||||||
Due from affiliated companies:
|
B | |||||||||||||||||||
TerreStar Networks Inc.
|
223 | 1 | 1 | |||||||||||||||||
TerreStar Global LTD
|
15 | - | - | |||||||||||||||||
TerreStar National Services Inc.
|
0 | - | - | |||||||||||||||||
Deferred issuance costs towards bridge loan
|
1 | - | - | |||||||||||||||||
Other current assets
|
0 | - | - | |||||||||||||||||
Property and equipment, net
|
0 | - | - | |||||||||||||||||
Intangible assets, net
|
C | 177 | 117 | 135 | ||||||||||||||||
Equity investments in affiliated companies:
|
D | |||||||||||||||||||
TerreStar Networks Inc.
|
310 | - | - | |||||||||||||||||
TerreStar Global LTD
|
9 | - | - | |||||||||||||||||
Total
|
$ | 754 | $ | 135 | $ | 153 | ||||||||||||||
Costs associated with liquidation:
|
E | |||||||||||||||||||
Payroll and overhead costs
|
$ | (1 | ) | $ | (1 | ) | ||||||||||||||
Chapter 7 Trustee Fees
|
(4 | ) | (5 | ) | ||||||||||||||||
Chapter 7 professional fees
|
(2 | ) | (2 | ) | ||||||||||||||||
Net Estimated Liquidation Proceeds Available for Distribution
|
$ | 128 | $ | 145 | ||||||||||||||||
Estimated
|
Estimated
|
|||||||||||||||||||
Allowable
|
Recovery on Claims
|
|||||||||||||||||||
Distribution Summary
|
Claims
|
Low
|
High
|
|||||||||||||||||
Chapter 11 Claims
|
||||||||||||||||||||
Unpaid chapter 11 professional fees
|
F | |||||||||||||||||||
Unpaid professional fees as of Conversion Date
|
$ | 4 | $ | 4 | $ | 4 | ||||||||||||||
Hypothetical recovery to holders of claims for unpaid professional fees
|
100 | % | 100 | % | ||||||||||||||||
Proceeds available after distributions on account of unpaid professional fees
|
123 | 141 | ||||||||||||||||||
Priority Tax Claims
|
||||||||||||||||||||
Priority Tax Claims
|
G | 0 | 0 | 0 | ||||||||||||||||
Hypothetical recovery to holders of Priority Tax Claims
|
100 | % | 100 | % | ||||||||||||||||
Proceeds available after distributions on account of Priority Tax Claims
|
123 | 141 | ||||||||||||||||||
Pre-Petition Claims
|
||||||||||||||||||||
Secured Claims
|
||||||||||||||||||||
Bridge Loan Claims
|
H | 5 | 5 | 5 | ||||||||||||||||
Hypothetical recovery to holders of Bridge Loan Claims
|
100 | % | 100 | % | ||||||||||||||||
Proceeds available after distributions on account of Bridge Loan Claims
|
119 | 136 | ||||||||||||||||||
Unsecured Claims
|
||||||||||||||||||||
General Unsecured Claims
|
I | 59 | 59 | 59 | ||||||||||||||||
Hypothetical recovery to holders of General Unsecured Claims
|
100 | % | 100 | % | ||||||||||||||||
Proceeds available after distributions on account of General Unsecured Claims
|
60 | 77 | ||||||||||||||||||
Equity Interests
|
||||||||||||||||||||
Preferred TSC Interests
|
409 | 60 | 77 | |||||||||||||||||
Hypothetical recovery to holders of Preferred TSC Interests
|
15 | % | 19 | % | ||||||||||||||||
Proceeds available after distributions on account of Preferred TSC Interests
|
- | - | ||||||||||||||||||
Other TSC Equity Interests
|
||||||||||||||||||||
Other TSC Equity Interests
|
NA
|
- | - | |||||||||||||||||
Hypothetical recovery to holders of Other TSC Equity Interests
|
0 | % | 0 | % | ||||||||||||||||
|
A.
|
Purpose and Objectives
|
|
B.
|
General Assumptions
|
|
1.
|
Methodology
|
|
2.
|
Plan Consummation
|
|
3.
|
New TSC Notes
|
|
4.
|
The Spectrum Lease
|
|
C.
|
Projected March 31, 2012 Balance Sheet and Reorganized TerreStar Corporation Pro Forma Balance Sheet
|
Pro Forma Condensed Consolidated Balance Sheet
|
|||||||||||||
Unaudited, $ in millions
|
|||||||||||||
March 31, 2012
|
|||||||||||||
Pro Forma
|
|||||||||||||
ASSETS
|
Projected
|
Adjustments
|
Pro Forma
|
||||||||||
Current assets
|
|||||||||||||
Cash and cash equivalents
|
$ | 4.9 | $ | (2.9 | ) | (1) | $ | 2.1 | |||||
Notes due from TerreStar Networks Inc. including accrued interest
|
61.3 | (60.3 | ) | (2) | 1.0 | ||||||||
Intercompany transfers
|
496.5 | (496.5 | ) | (3) | - | ||||||||
Deferred issuance costs towards Bridge Loan
|
1.4 | (1.4 | ) | (4) | - | ||||||||
Other current assets
|
0.4 | - | 0.4 | ||||||||||
Total current assets
|
564.5 | (561.1 | ) | 3.5 | |||||||||
Property and equipment, net
|
- | - | - | ||||||||||
Equity in TerreStar Networks Inc.
|
- | - | - | ||||||||||
Deferred tax asset
|
105.4 | (31.4 | ) | (5) | 74.0 | ||||||||
Intangible assets, net
|
177.5 | (177.5 | ) | (6) | - | ||||||||
Reorganization value in excess of fair value of assets
|
- | 115.6 | (7) | 115.6 | |||||||||
Total assets
|
$ | 847.4 | $ | (654.3 | ) | $ | 193.1 | ||||||
LIABILITIES AND STOCKHOLDERS' (DEFICIT) EQUITY
|
|||||||||||||
Current liabilities
|
|||||||||||||
Accounts payable and accrued expenses
|
$ | - | $ | - | $ | - | |||||||
Deferred revenue
|
10.0 | - | 10.0 | ||||||||||
Deferred rent
|
- | - | - | ||||||||||
Deferred rent, net of current portion
|
0.0 | - | 0.0 | ||||||||||
Deferred income taxes
|
31.4 | (31.4 | ) | (8) | - | ||||||||
Bridge Loan, net
|
4.2 | (4.2 | ) | (9) | - | ||||||||
DIP Facility
|
- | - | (10) | - | |||||||||
Exit Facility
|
- | 2.0 | (11) | 2.0 | |||||||||
New TSC Notes
|
- | 32.5 | (12) | 32.5 | |||||||||
Total liabilities not subject to compromise
|
45.6 | (1.2 | ) | 44.5 | |||||||||
Total liabilities subject to compromise
|
452.6 | (452.6 | ) | (13) | - | ||||||||
Total liabilities
|
498.3 | (453.8 | ) | 44.5 | |||||||||
Total stockholders' equity
|
349.1 | (200.5 | ) | (14) | 148.6 | ||||||||
Total liabilities and stockholders' equity
|
$ | 847.4 | $ | (654.3 | ) | $ | 193.1 |
|
(1)
|
Cash and Cash Equivalents
|
|
(2)
|
Notes Due From TerreStar Networks Inc.
|
|
(3)
|
Intercompany Transfers
|
|
(4)
|
Deferred Issuance Costs Towards Bridge Loan
|
|
(5)
|
Deferred Tax Asset
|
|
(6)
|
Intangible Assets, Net
|
|
(7)
|
Reorganization Value in Excess of Fair Value of Assets
|
|
(8)
|
Deferred Income Taxes
|
|
(9)
|
Bridge Loan, Net
|
|
(10)
|
DIP Facility
|
|
(11)
|
Exit Facility
|
|
(12)
|
New TSC Notes
|
|
(13)
|
Liabilities Subject to Compromise
|
|
(14)
|
Stockholders’ Equity
|
|
D.
|
Reorganized TerreStar Corporation Projected Income Statement
|
Pro Forma Condensed Consolidated Projected Statement of Operations
|
||||||||||||||||||||||||||||
Unaudited, $ in millions
|
||||||||||||||||||||||||||||
Projected Income Statement for the Year Ended December 31,
|
||||||||||||||||||||||||||||
2012 (1)
|
2013
|
2014
|
2015
|
2016
|
2017
|
2018
|
||||||||||||||||||||||
Revenues
|
||||||||||||||||||||||||||||
1.4GHz lease revenue (2)
|
$ | 18.0 | $ | 24.0 | $ | 24.0 | $ | 24.0 | $ | 24.0 | $ | 24.0 | $ | 24.0 | ||||||||||||||
Total revenue
|
18.0 | 24.0 | 24.0 | 24.0 | 24.0 | 24.0 | 24.0 | |||||||||||||||||||||
Expenses
|
||||||||||||||||||||||||||||
Operating expenses (3)
|
(0.7 | ) | (1.0 | ) | (1.0 | ) | (1.1 | ) | (1.1 | ) | (1.1 | ) | (1.1 | ) | ||||||||||||||
Total operating expenses
|
(0.7 | ) | (1.0 | ) | (1.0 | ) | (1.1 | ) | (1.1 | ) | (1.1 | ) | (1.1 | ) | ||||||||||||||
EBITDA
|
17.3 | 23.0 | 23.0 | 22.9 | 22.9 | 22.9 | 22.9 | |||||||||||||||||||||
Depreciation & amortization
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Operating income
|
17.3 | 23.0 | 23.0 | 22.9 | 22.9 | 22.9 | 22.9 | |||||||||||||||||||||
Cash interest expense (4)
|
(1.6 | ) | (1.7 | ) | (1.3 | ) | (0.9 | ) | (0.5 | ) | (0.1 | ) | 0.0 | |||||||||||||||
Income before taxes
|
15.7 | 21.3 | 21.6 | 22.0 | 22.4 | 22.8 | 22.9 | |||||||||||||||||||||
Taxes (5)
|
(6.4 | ) | (8.7 | ) | (8.9 | ) | (9.0 | ) | (9.2 | ) | (9.3 | ) | (9.4 | ) | ||||||||||||||
Net income
|
$ | 9.3 | $ | 12.6 | $ | 12.8 | $ | 13.0 | $ | 13.2 | $ | 13.4 | $ | 13.5 | ||||||||||||||
|
(1)
|
Income Statement for Nine Months Ended December 31, 2012
|
|
(2)
|
Revenue
|
|
(3)
|
Operating Expenses
|
|
(4)
|
Interest Expense
|
|
(5)
|
Income Taxes
|
|
E.
|
Reorganized TerreStar Corporation Balance Sheets
|
Pro Forma Condensed Consolidated Projected Balance Sheet
|
||||||||||||||||||||||||||||
Unaudited, $ in millions
|
||||||||||||||||||||||||||||
Projected Balance Sheet for the Year Ended December 31,
|
||||||||||||||||||||||||||||
2012
|
2013
|
2014
|
2015
|
2016
|
2017
|
2018
|
||||||||||||||||||||||
ASSETS
|
||||||||||||||||||||||||||||
Current assets
|
||||||||||||||||||||||||||||
Cash and cash equivalents
|
$ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | ||||||||||||||
Notes due from TerreStar Networks Inc.
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Other current assets
|
0.4 | 0.4 | 0.4 | 0.4 | 0.4 | 0.4 | 0.4 | |||||||||||||||||||||
Total current assets
|
1.4 | 1.4 | 1.4 | 1.4 | 1.4 | 1.4 | 1.4 | |||||||||||||||||||||
Property and equipment, net
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Equity in TerreStar Networks Inc.
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Deferred tax asset
|
67.6 | 58.8 | 50.0 | 40.9 | 31.8 | 22.4 | 13.0 | |||||||||||||||||||||
Reorganization value in excess of fair value of assets
|
115.6 | 115.6 | 115.6 | 115.6 | 115.6 | 115.6 | 115.6 | |||||||||||||||||||||
Total assets
|
$ | 184.6 | $ | 175.8 | $ | 167.0 | $ | 157.9 | $ | 148.8 | $ | 139.4 | $ | 130.1 | ||||||||||||||
LIABILITIES AND STOCKHOLDERS' (DEFICIT) EQUITY
|
||||||||||||||||||||||||||||
Current liabilities
|
||||||||||||||||||||||||||||
Accounts payable and accrued expenses
|
$ | 0.0 | $ | 0.0 | $ | 0.0 | $ | 0.0 | $ | 0.0 | $ | 0.0 | $ | 0.0 | ||||||||||||||
Deferred revenue
|
10.0 | 10.0 | 10.0 | 10.0 | 10.0 | 10.0 | 10.0 | |||||||||||||||||||||
Deferred rent, net of current portion
|
0.0 | 0.0 | 0.0 | 0.0 | 0.0 | 0.0 | 0.0 | |||||||||||||||||||||
Exit Financing
|
- | - | - | - | - | - | - | |||||||||||||||||||||
New TSC Notes
|
28.3 | 22.0 | 15.5 | 8.9 | 2.2 | - | - | |||||||||||||||||||||
New revolver (amount outstanding)
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Total liabilities
|
38.4 | 32.0 | 25.5 | 18.9 | 12.2 | 10.0 | 10.0 | |||||||||||||||||||||
Stockholders' equity
|
||||||||||||||||||||||||||||
Retained earnings
|
146.2 | 143.9 | 141.5 | 139.1 | 136.6 | 129.4 | 120.1 | |||||||||||||||||||||
Total TerreStar Corporation stockholders' equity
|
146.2 | 143.9 | 141.5 | 139.1 | 136.6 | 129.4 | 120.1 | |||||||||||||||||||||
Total liabilities and stockholders' equity
|
$ | 184.6 | $ | 175.8 | $ | 167.0 | $ | 157.9 | $ | 148.8 | $ | 139.4 | $ | 130.1 |
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F.
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Reorganized TerreStar Corporation Statement of Cash Flows
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Pro Forma Condensed Consolidated Projected Statement of Cash Flows
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Unaudited, $ in millions
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Projected Statement of Cash Flows for the Year Ended December 31,
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2012 (1)
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2013
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2014
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2015
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2016
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2017
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2018
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Operating Activities
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Net income (loss)
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$ | 9.3 | $ | 12.6 | $ | 12.8 | $ | 13.0 | $ | 13.2 | $ | 13.4 | $ | 13.5 | ||||||||||||||
Cash distribution from TerreStar Networks Inc.
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1.0 | - | - | - | - | - | - | |||||||||||||||||||||
Change in deferred tax asset
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6.4 | 8.7 | 8.9 | 9.0 | 9.2 | 9.3 | 9.4 | |||||||||||||||||||||
Change in deferred revenue
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- | - | - | - | - | - | - | |||||||||||||||||||||
Net Cash from operating activities
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16.7 | 21.3 | 21.6 | 22.0 | 22.4 | 22.8 | 22.9 | |||||||||||||||||||||
Investing Activities
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Capital expenditures
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- | - | - | - | - | - | - | |||||||||||||||||||||
Net Cash from investing activities
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- | - | - | - | - | - | - | |||||||||||||||||||||
Financing Activities
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Exit Financing
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(2.0 | ) | - | - | - | - | - | - | ||||||||||||||||||||
New TSC Notes
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(4.1 | ) | (6.4 | ) | (6.5 | ) | (6.6 | ) | (6.7 | ) | (2.2 | ) | - | |||||||||||||||
New Revolver
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- | - | - | - | - | - | - | |||||||||||||||||||||
Dividend
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(11.7 | ) | (14.9 | ) | (15.1 | ) | (15.4 | ) | (15.7 | ) | (20.6 | ) | (22.9 | ) | ||||||||||||||
Net Cash from financing activities
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(17.8 | ) | (21.3 | ) | (21.6 | ) | (22.0 | ) | (22.4 | ) | (22.8 | ) | (22.9 | ) | ||||||||||||||
Net change in Cash & Cash equivalents
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(1.1 | ) | - | - | - | - | - | - | ||||||||||||||||||||
Beginning Cash
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$ | 2.1 | $ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | $ | 1.0 | ||||||||||||||
Change in Cash
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(1.1 | ) | - | - | - | - | - | - | ||||||||||||||||||||
Ending Cash
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1.0 | 1.0 | 1.0 | 1.0 | 1.0 | 1.0 | 1.0 |
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(1)
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Cash Flows for Nine Months Ended December 31, 2012
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Issuer
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Reorganized TerreStar Corporation Inc. (“TSC”)
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Debt
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Senior Unsecured Notes (the “Notes”)
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Term
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7 Years
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Amount
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An amount equal to the aggregate amount of all Allowed Unsecured Claims as of the Debtors’ emergence from Chapter 11, subject to a cap of $35 million
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Guarantors
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The Notes will be guaranteed by the following direct and indirect subsidiaries of TSC, to the extent not dissolved under the Plan: Motient Holdings Inc., MVH Holdings Inc., TerreStar Holdings Inc., TerreStar New York Inc., Motient Communications Inc., Motient Services Inc., Motient License Inc., and Motient Ventures Holdings Inc. (each a “Guarantor”). On the Effective Date (as defined below), the only subsidiaries of TSC shall be (i) the Guarantors and (ii) TerreStar 1.4 Holdings LLC.
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Interest Rate / Payments
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The Notes shall bear interest at a rate per annum equal to 6%. Interest shall be paid semi-annually in cash.
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Ranking
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Pari passu with other senior indebtedness of the Issuer and each of the Guarantors
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Covenants
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Affirmative and negative covenants customary for issuances of this type, but not any financial performance covenants. Such covenants shall include, among others:
· If a Change of Control occurs, TSC must offer to repurchase all of the outstanding Notes at a price equal to 100% of the aggregate outstanding principal amount of the Notes plus accrued interest. A “Change of Control” will be defined to include only the acquisition by a ”person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than Highland Capital Management, L.P., Solus Alternative Asset Management, L.P., Harbinger Capital Partners LLC and/or any of their respective affiliates and approved funds, of beneficial ownership of more than 50% of the common equity of TSC.
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· If (A) (i) the ratio of total debt (net of cash and excluding Notes held in a reserve) to EBITDA of TSC and its subsidiaries (the “Leverage Ratio”) is greater than 1.75:1.00 and (ii) excess cash flow during any fiscal year (first period commences upon the Effective Date and runs through 12/31/12) exceeds $1 million, TSC must offer to repurchase Notes in a total amount equal to 50% of such excess cash flow and at a price equal to 100% of the outstanding principal amount of the Notes to be repurchased plus accrued interest; and (B)(i) the Leverage Ratio is less than or equal to 1.75:1.00 and (ii) excess cash flow during any fiscal year (first period commences upon the Effective Date and runs through 12/31/12) exceeds $1 million, TSC must offer to repurchase Notes in a total amount equal to 30% of such excess cash flow and at a price equal to 100% of the outstanding principal amount of the Notes to be repurchased plus accrued interest (the amount of excess cash flow since the Effective Date not used to repurchase Notes shall be referred to as the “Retained Excess Cash Flow Amount”).
· TSC and the Guarantors may not incur or guarantee any indebtedness, subject to customary exceptions including, among others, (i) indebtedness existing on the Effective Date, (ii) capital lease obligations in an aggregate principal amount not to exceed $2.5 million, (iii) permitted refinancing indebtedness, and (iv) indebtedness in an aggregate principal amount not to exceed $10 million.
· TSC and the Guarantors may not incur any lien on any of their property, subject to customary exceptions including, among others, (i) liens in existence on the Effective Date, (ii) liens securing any exit financing facility, (iii) liens securing permitted capital lease obligations, (iv) liens securing permitted refinancing indebtedness incurred with respect to indebtedness that is secured and (v) liens securing indebtedness in an aggregate principal amount not to exceed $5 million.
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· TSC and the Guarantors may not (i) pay cash dividends, (ii) repurchase equity, (iii) repay principal of indebtedness subordinated to the Notes (except at or within one year prior to the stated maturity thereof), or (iv) make any restricted investment (any of the above, a “Restricted Payment”), subject to customary exceptions/baskets including, among others, a basket for Restricted Payments in the event that all of the following conditions are satisfied: (a) no default exists under the Long Term De Facto Transfer Lease Agreement, dated as of July 2010 and amended on October 13, 2010 (as it may be amended from time to time, the “1.4 Lease”), among TSC, TerreStar 1.4 Holdings LLC and One Dot Four Corp., or any replacement spectrum lease entered into in an arms’-length transaction, or on terms and conditions at least as favorable to TSC and the Guarantors as could reasonably be obtained at the time of entry into such lease in a comparable arms’-length transaction, as applicable, as determined by a committee of the board of directors of TSC comprised of disinterested directors (a “Replacement Lease”), (b) the Leverage Ratio, immediately prior to and after giving effect to such payment, is less than or equal to 1.75:1.00, (c) the principal financial officer of TSC reasonably believes that the Leverage Ratio will at all times be less than or equal to 1.75:1.00 for a period of 12 months after such payment is made, (d) the amount of such payment, together with all payments made pursuant to this basket since the Effective Date, does not exceed the sum of (1) $10 million and (2) the Retained Excess Cash Flow Amount, and (e) cash on hand immediately after giving effect to such payment is not less than $1 million. For purposes of this term sheet, a disinterested director shall be a director who does not have a financial interest in the lessee under a proposed Replacement Lease.
· Net proceeds from an asset sale or a recovery event, in each case other than in the ordinary course of business, in excess of $5 million must be applied to repay, purchase or otherwise retire (1) secured indebtedness of TSC or a Guarantor, (2) the Notes (at a price equal to 100% of the outstanding principal amount of the Notes to be repurchased plus accrued interest), or other indebtedness of TSC that is pari passu with, the Notes; provided that the purchase of such other indebtedness and the Notes is on a pro rata basis or (3) indebtedness of TerreStar 1.4 Holdings LLC (other than intercompany debt).
· TerreStar Holdings Inc. shall cause TerreStar 1.4 Holdings LLC not to take any action that would violate any of the above covenants if TerreStar 1.4 Holdings LLC were a Guarantor.
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Events of Default
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Customary and appropriate for issuances and borrowers of this type. Additionally, it shall be an event of default if any payment default under the 1.4 Lease or any Replacement Lease, as applicable, continues for a period of six months immediately following such payment default (the “Non-Payment Period”); provided that the Non-Payment Period shall be extended for an additional six months before there is an event of default under the Notes in respect of such payment default under the 1.4 Lease or any Replacement Lease, as applicable, if within 30 days after the commencement of the Non-Payment Period, TSC shall have issued equity securities for cash or otherwise received cash contributions to the capital of TSC, which cash shall be deposited in an escrow account with the Trustee for the benefit of noteholders in an amount sufficient to pay the semi-annual interest payment required to be made in respect of the Notes that is next due after the initial six month Non-Payment Period; provided further that any such event of default shall be cured if (i) the lessee under the applicable 1.4 Lease or Replacement Lease pays all outstanding amounts due or (ii) TSC and/or its subsidiaries enter into a new Replacement Lease.
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Optional Redemption
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Redeemable at any time at Issuer election for 100% of the aggregate outstanding principal amount of the Notes plus accrued interest
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Governing Law
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State of New York
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Trustee
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Wilmington Trust
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