UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 23, 2012
Motors Liquidation Company GUC Trust
(Exact Name of Registrant as Specified in Charter)
Delaware | 1-43 | 45-6194071 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
c/o Wilmington Trust Company, as trust administrator and trustee Attn: David A. Vanaskey Jr., Vice President Rodney Square North 1100 North Market Street Wilmington, Delaware |
19890-1615 | |||
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (302) 636-6000
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 8.01 | Other Events. |
Reference is made to the Amended and Restated Motors Liquidation Company GUC Trust Agreement, dated as of June 11, 2012, among Wilmington Trust Company, as trust administrator and trustee (the GUC Trust Administrator), and FTI Consulting Inc., as trust monitor (the GUC Trust Monitor), as subsequently amended (the GUC Trust Agreement).
As disclosed in the Form 10-Q of the Motors Liquidation Company GUC Trust (the GUC Trust), filed with the Securities and Exchange Commission on August 14, 2012 (the Form 10-Q), the GUC Trust was previously funded by, among other sources, approximately $52.7 million in cash (the Administrative Fund) provided by Motors Liquidation Company (the Debtor). Pursuant to the GUC Trust Agreement, the Administrative Fund is held and maintained by the GUC Trust Administrator for the purpose of paying certain fees and expenses incurred by the GUC Trust, including the fees of the GUC Trust Administrator and the GUC Trust Monitor and the fees and expenses of other professionals retained by the GUC Trust. The United States Department of the Treasury and the Governments of Canada and Ontario (through Export Development Canada) (collectively, the DIP Lenders) maintain a lien on the Administrative Fund, which relates to certain funds advanced by the DIP Lenders at the commencement of the insolvency proceedings of Debtor and its affiliated debtors-in-possession.
Also as disclosed in the Form 10-Q, pursuant to the GUC Trust Agreement, the amounts of payments from the Administrative Fund to individual GUC Trust professionals are capped on an annual and cumulative basis, which restrictions may be released with the written consent of the DIP Lenders. By letter dated July 24, 2012 (the DIP Lenders Letter), the DIP Lenders consented to allow individual GUC Trust professionals to be paid, from the Administrative Fund, amounts in excess of the line item amounts allocated to those professional on both an annual and a cumulative basis, provided that the aggregate amount allocated to GUC Trust professionals as a whole, on a cumulative basis, are not exceeded. The DIP Lenders Letter further provided for the execution of an amendment to the GUC Trust Agreement in order to effectuate the foregoing. A copy of the DIP Lenders Letter is furnished as Exhibit 99.1 to this Form 8-K.
On August 23, 2012, as contemplated by the DIP Lenders Letter, the GUC Trust Administrator and the GUC Trust Monitor executed the Second Amendment to the GUC Trust Agreement. A copy of such amendment is furnished as Exhibit 99.2 to this Form 8-K.
Item 9.01 | Financial Statements and Exhibits. |
Exhibit |
Description | |
99.1 | DIP Lenders Letter | |
99.2 | Second Amendment to the GUC Trust Agreement |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 23, 2012
MOTORS LIQUIDATION COMPANY GUC TRUST | ||
By: Wilmington Trust Company, solely in its capacity as trust administrator and trustee of the Motors Liquidation Company GUC Trust | ||
By: | /s/ David A. Vanaskey | |
Name: | David A. Vanaskey | |
Title: | Vice President of Wilmington Trust | |
Company |
EXHIBIT INDEX
Exhibit |
Description | |
99.1 | DIP Lenders Letter | |
99.2 | Second Amendment to the GUC Trust Agreement |
Exhibit 99.1
[Letterhead of Gibson, Dunn & Crutcher LLP]
Matt J. Williams Direct: +1 212.351.2322 Fax: +1 212.351.5232 MJWilliams@gibsondunn.com |
July 24, 2012
VIA ELECTRONIC MAIL
United States Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
Attn: Chief Counsel, Office of Financial Stability
Export Development Canada
151 OConnor Street
Ottawa, Ontario
Canada K1A 1K3
Attention: Loan Services
To the addressees set forth above:
As you know, this firm represents Wilmington Trust Company as GUC Trust Administrator under the Amended and Restated Motors Liquidation Company GUC Trust Agreement dated as of June 11, 2012 (as amended pursuant to that certain amendment dated as of June 29, 2012, the Trust Agreement). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Trust Agreement.
Pursuant to Section 2.6(c) of the Trust Agreement, all payments of Wind-Down Budget Cash to Trust Professionals are subject to the Budget and the Wind-Down Professional Fee Budget. If the billings of a Trust Professional have exceeded the amounts allocated to it as set forth in the line-item Budget (measured on an annual basis), such Trust Professional may not be paid from Wind-Down Budget Cash any amount greater than the amount allocated to it in the Budget for such period, except with the written consent of the DIP Lenders, provided that, if the DIP Lenders do not consent, the GUC Trust Administrator may seek Bankruptcy Court approval to make such payments. Section 2.6(c) further provides that Wind-Down Budget Cash may not be used to pay a Trust Professional once such Trust Professional exceeds its Trust Professional Maximum Amount.
Pursuant to Section 13.13(a) of the Trust Agreement, the Trust Agreement may be amended without notice to or consent of the Bankruptcy Court or any GUC Trust Beneficiary for the purpose of making any changes that do not adversely affect the interests of the GUC Trust Beneficiaries or the DIP Lenders in any material respect. Pursuant to Section 13.13(d) of the Trust Agreement, Section 2.6(c) of the Trust Agreement may not be amended absent the written consent of the DIP Lenders.
July 24, 2012
Page 2
By countersigning below, each DIP Lender, subject to the proviso below and for the limited purposes herein, (i) provides its written consent to allow each Trust Professional (A) to be paid from Wind-Down Budget Cash amounts in excess of the line item amount allocated to such Trust Professional in the current Budget and all future Budgets and (B) to be paid from the Wind-Down Budget Cash amounts in excess of the Trust Professional Maximum Amount, (ii) provides its written consent to the execution of an amendment to the Trust Agreement substantially in the form attached hereto as Annex A (the Second Amendment), (iii) acknowledges that the Second Amendment does not adversely affect its interests, as DIP Lender, in any material respect, and (iv) consents to the public filing of this letter agreement with the U.S. Securities and Exchange Commission; provided, however, that nothing herein shall be deemed to permit, or constitute consent by the DIP Lenders to permit, (1) an increase in the aggregate amount of Wind-Down Budget Cash or (2) the Trust Professionals to be paid an amount from the Wind-Down Budget Cash in excess of the aggregate dollar amount of funds allocated to all Trust Professionals set forth in the Wind-Down Professional Fee Budget. Notwithstanding anything set forth herein, any payments made to a Trust Professional from any source other than Wind-Down Budget Cash shall not reduce the amount of Wind-Down Budget Cash available to pay Trust Professionals.
In order to allow the DIP Lenders to monitor the use the Wind-Down Budget Cash, the Trust Administrator agrees to provide the DIP Lenders with semi-annual reports no later than 30 days following the end of the GUC Trusts second fiscal quarter and the end of the GUC Trusts fiscal year consisting of (i) a statement describing (a) key activities and (b) significant accomplishments for the applicable reporting period; (ii) a statement indicating whether the GUC Trust Administrator anticipates any variance with the annual Budget and the reasons for the anticipated variance; and (iii) such other information that the DIP Lenders may reasonably request from time to time. For the avoidance of doubt, the GUC Trust Administrator will continue to provide an annual Budget, and such Budget shall be subject to the approval of the DIP Lenders in accordance with Section 6.4 of the Trust Agreement.
Sincerely,
Matt J. Williams
MJW/cl
July 24, 2012
Page 3
UNITED STATES DEPARTMENT OF TREASURY | ||
By: | /s/ Matthew Pendo | |
Name: Matthew Pendo | ||
Title: Chief Investment Officer | ||
EXPORT DEVELOPMENT CANADA | ||
By: | /s/ Sean Mitchell | |
Name: Sean Mitchell | ||
Title: Principal Special Risks | ||
By: | /s/ Talal M. Kairouz | |
Name: Talal M. Kairouz | ||
Title: Senior Asset Manager |
CC: | Cadwalader, Wickersham & Taft LLP |
One World Financial Center
New York, NY 10281
Attention: John Rapisardi and Doug Mintz
Export Development Canada
151 OConnor Street
Ottawa, Ontario
Canada K1A 1K3
Attention: Asset Management/Covenants Officer
Annex A
Second Amendment to Amended and Restated Trust Agreement
This second amendment, dated as of July , 2012 (the Second Amendment) to that certain Amended and Restated Motors Liquidation Company GUC Trust Agreement, dated as of June 11, 2012 (as amended pursuant to that certain amendment dated as of June 29, 2012 the Amended and Restated Trust Agreement), is executed by Wilmington Trust Company, as trust administrator and trustee (in such capacity, the GUC Trust Administrator) and FTI Consulting Inc., as GUC Trust Monitor, in accordance with Section 13.13 of the Amended and Restated Trust Agreement. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Amended and Restated Trust Agreement.
W I T N E S S E T H
WHEREAS, pursuant to Section 2.6(c) of the Amended and Restated Trust Agreement, the GUC Trust is restricted from making certain payments to Trust Professionals from the Wind-Down Budget Cash in excess of such Trust Professionals allocated amounts set forth in the Budget and the Wind-Down Professional Fee Budget and in excess of such Trust Professionals Trust Professional Maximum Amount (the Restrictions); and
WHEREAS, it is now desirable to modify certain of the Restrictions in order to permit greater flexibility in the use of the Wind-Down Budget Cash; and
WHEREAS, pursuant to Section 13.13(a) of the Amended and Restated Trust Agreement the GUC Trust Administrator, with the approval of the GUC Trust Monitor, may amend the Amended and Restated Trust Agreement without notice to or consent of the Bankruptcy Court or any GUC Trust Beneficiary for the purpose of making any changes that do not adversely affect the interests of the GUC Trust Beneficiaries or the DIP Lenders in any material respect; and
WHEREAS, the Second Amendment is beneficial to the GUC Trust Beneficiaries in that enhanced flexibility in the use of the Wind-Down Budget Cash will limit increased utilization of the Protective Holdback to fund administrative costs of the GUC Trust; and
WHEREAS, the DIP Lenders have acknowledged that the Second Amendment does not adversely affect the interests of the DIP Lenders in any material respect; and
WHEREAS, pursuant to Section 13.13(d) of the Amended and Restated Trust Agreement, the DIP Lenders have provided written consent to the modification of Section 2.6(c) of the Amended and Restated Trust Agreement effected by this Second Amendment; and
WHEREAS, the GUC Trust Monitor has approved this Second Amendment as evidenced by its signature below; and
WHEREAS, this Second Amendment shall become effective upon execution by the appropriate signatories to this Second Amendment.
NOW, THEREFORE, in accordance with Section 13.13 of the Amended and Restated Trust Agreement the Amended and Restated Trust Agreement is hereby amended as follows:
1. | Section 2.6(c) shall be deleted in its entirety and replaced with the following: |
The GUC Trust agrees that all payments of Wind-Down Budget Cash to Trust Professionals shall be subject to the annual Budget and are further subject to the Wind-Down Professional Fee Budget, each in the manner set forth below. If the billings of a Trust Professional have exceeded the amount allocated to it in the Budget (measured on an annual basis), such Trust Professional shall not be paid from the Wind-Down Budget Cash any amount greater than the amount allocated to it in the Budget for such period except with the written consent of the DIP Lenders, provided that if the DIP Lenders do not consent, the GUC Trust Administrator, in consultation with the GUC Trust Monitor may seek Bankruptcy Court approval to pay the Trust Professional from the Wind-Down Budget Cash an amount greater than the amount allocated in the Budget for such period. The GUC Trust Administrator may only request such Bankruptcy Court approval on the grounds that the DIP Lenders acted in bad faith in not consenting to authorize payment to the Trust Professional in excess of the Budget. Bad faith shall not include, inter alia, a failure to permit payments outside the Budget for any rational business purpose; provided further that, the Trust Administrator may utilize the Wind-Down Budget Cash to pay Trust Professionals, subject to the annual Budget as described herein, without regard to the Trust Professional Maximum Amount, provided, however, that if the billings of all Trust Professionals, in the aggregate, exceed the aggregate Trust Professional Maximum Amount allocated to all Trust Professionals in the Wind-Down Professional Fee Budget, the Wind-Down Budget Cash shall not be used to pay any Trust Professional in excess of such aggregate Trust Professional Maximum Amount.
Except as expressly amended hereby, the Amended and Restated Trust Agreement shall remain unmodified and in full force and effect.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment or caused this Second Amendment to be duly executed by their respective officers, representatives, or agents as of the date first above written.
WILMINGTON TRUST COMPANY, AS GUC TRUST ADMINISTRATOR AND TRUSTEE: | ||
By: |
| |
Name: | ||
Title: | ||
FTI CONSULTING, INC., AS GUC TRUST MONITOR: | ||
By: |
| |
Name: | ||
Title: |
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Exhibit 99.2
Second Amendment to Amended and Restated Trust Agreement
This second amendment, dated as of August 23, 2012 (the Second Amendment) to that certain Amended and Restated Motors Liquidation Company GUC Trust Agreement, dated as of June 11, 2012 (as amended pursuant to that certain amendment dated as of June 29, 2012 the Amended and Restated Trust Agreement), is executed by Wilmington Trust Company, as trust administrator and trustee (in such capacity, the GUC Trust Administrator) and FTI Consulting Inc., as GUC Trust Monitor, in accordance with Section 13.13 of the Amended and Restated Trust Agreement. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Amended and Restated Trust Agreement.
W I T N E S S E T H
WHEREAS, pursuant to Section 2.6(c) of the Amended and Restated Trust Agreement, the GUC Trust is restricted from making certain payments to Trust Professionals from the Wind-Down Budget Cash in excess of such Trust Professionals allocated amounts set forth in the Budget and the Wind-Down Professional Fee Budget and in excess of such Trust Professionals Trust Professional Maximum Amount (the Restrictions); and
WHEREAS, it is now desirable to modify certain of the Restrictions in order to permit greater flexibility in the use of the Wind-Down Budget Cash; and
WHEREAS, pursuant to Section 13.13(a) of the Amended and Restated Trust Agreement the GUC Trust Administrator, with the approval of the GUC Trust Monitor, may amend the Amended and Restated Trust Agreement without notice to or consent of the Bankruptcy Court or any GUC Trust Beneficiary for the purpose of making any changes that do not adversely affect the interests of the GUC Trust Beneficiaries or the DIP Lenders in any material respect; and
WHEREAS, the Second Amendment is beneficial to the GUC Trust Beneficiaries in that enhanced flexibility in the use of the Wind-Down Budget Cash will limit increased utilization of the Protective Holdback to fund administrative costs of the GUC Trust; and
WHEREAS, the DIP Lenders have acknowledged that the Second Amendment does not adversely affect the interests of the DIP Lenders in any material respect; and
WHEREAS, pursuant to Section 13.13(d) of the Amended and Restated Trust Agreement, the DIP Lenders have provided written consent to the modification of Section 2.6(c) of the Amended and Restated Trust Agreement effected by this Second Amendment; and
WHEREAS, the GUC Trust Monitor has approved this Second Amendment as evidenced by its signature below; and
WHEREAS, this Second Amendment shall become effective upon execution by the appropriate signatories to this Second Amendment.
NOW, THEREFORE, in accordance with Section 13.13 of the Amended and Restated Trust Agreement the Amended and Restated Trust Agreement is hereby amended as follows:
1. | Section 2.6(c) shall be deleted in its entirety and replaced with the following: |
The GUC Trust agrees that all payments of Wind-Down Budget Cash to Trust Professionals shall be subject to the annual Budget and are further subject to the Wind-Down Professional Fee Budget, each in the manner set forth below. If the billings of a Trust Professional to be paid from Wind-Down Budget Cash have exceeded the amount allocated to it in the Budget (measured on an annual basis), such Trust Professional shall not be paid from the Wind-Down Budget Cash any amount greater than the amount allocated to it in the Budget for such period except with the written consent of the DIP Lenders, provided that if the DIP Lenders do not consent, the GUC Trust Administrator, in consultation with the GUC Trust Monitor may seek Bankruptcy Court approval to pay the Trust Professional from the Wind-Down Budget Cash an amount greater than the amount allocated in the Budget for such period. The GUC Trust Administrator may only request such Bankruptcy Court approval on the grounds that the DIP Lenders acted in bad faith in not consenting to authorize payment from Wind-Down Budget Cash to the Trust Professional in excess of the Budget. Bad faith shall not include, inter alia, a failure to permit payments outside the Budget for any rational business purpose. The Trust Administrator may utilize the Wind-Down Budget Cash to pay Trust Professionals, subject to the annual Budget as described herein, without regard to the Trust Professional Maximum Amount, provided, however, that if the billings of all Trust Professionals, in the aggregate, exceed the aggregate Trust Professional Maximum Amount allocated to all Trust Professionals in the Wind-Down Professional Fee Budget, the Wind-Down Budget Cash shall not be used to pay the Trust Professionals, in the aggregate, an amount in excess of the aggregate Trust Professional Maximum Amount.
Except as expressly amended hereby, the Amended and Restated Trust Agreement shall remain unmodified and in full force and effect.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment or caused this Second Amendment to be duly executed by their respective officers, representatives, or agents as of the date first above written.
WILMINGTON TRUST COMPANY, AS GUC TRUST ADMINISTRATOR AND TRUSTEE: | ||
By: | /s/ David A. Vanaskey, Jr. | |
Name: David A. Vanaskey, Jr. | ||
Title: Vice President | ||
FTI CONSULTING, INC., AS GUC TRUST MONITOR: | ||
By: | /s/ Anna Phillips | |
Name: Anna Phillips | ||
Title: Senior Managing Director |
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