Presenting a live 90-minute webinar with interactive Q&A Prepackaged and Prenegotiated Chapter 11 Reorganizations: Debtor and Creditor Strategies Negotiating Restructuring Support Agreements; Navigating Valuation, Credit Bidding and More TUESDAY, MARCH 7, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Van C. Durrer, II, Partner, Skadden Arps Slate Meagher & Flom , Los Angeles Sunny Singh, Partner, Weil Gotshal & Manges , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Prepackaged and Prenegotiated Chapter 11 Reorganizations: Debtor and Creditor Strategies Presented by Van Durrer and Sunny Singh
AGENDA 1. Introduction 2. Out-of-Court Liability Management Strategies 3. Chapter 11 Overview 4. Prepackaged Cases 5. Roust Case Study 6. Pre-negotiated Cases 7. Quiksilver Case Study 6
LIABILITY MANAGEMENT STRATEGIES: CERTAIN CONSIDERATIONS Economic dynamics and Securities Act registration or objectives exemption: Trading prices To avoid burdensome disclosure and Mix of consideration procedural requirements of registration, companies often seek to structure the Company need to deleverage and/or reduce debt service exchange offer under an exemption requirements from registration, such as : Holdout problem in tenders and Section 4(a)(2): Private exchanges placement Structuring transaction to Section 3(a)(9): Non-cash incentivize holders to exchange with existing participate holders; no paid solicitation Contractual limitations, Section 1145: Bankruptcy particularly in debt agreements Court approval Debt and liens incurrence; Tender and exchange offers for leverage ratios convertible debt securities are Restricted payments subject to additional SEC filing Affiliate transactions and disclosure requirements Equity as consideration Authorized shares Stock exchange shareholder approval rights Change of control provisions in agreements 7
LIABILITY MANAGEMENT STRATEGIES: “DUAL TRACK” APPROACH Issuer tenders for bonds (90% minimum condition ) + Issuer solicits acceptances of prepackaged plan of reorganization <90% tender <90% tender <66 2 / 3 % in principal >66 2 / 3 % in principal amount amount >90% tender or <50.1% in and >50.1% in number accept number accept prepack prepack Prepackaged plan of Traditional bankruptcy Exchange offer completed reorganization accepted 8
RESTRUCTURING SUPPORT AGREEMENTS Restructuring Support Agreements (“RSA”) are agreements between the company and key stakeholders whereby the stakeholders agree to support a proposed restructuring RSAs are generally the result of extended discussions between the company and an organized group of stakeholders that started between professionals and advanced to principals once the stakeholders are willing to “get restricted” for a period of time RSAs typically include: Identification of stakeholders Commitment to support Milestones Limitations on transferability Waiver or forbearance Agreements to continue operating in the ordinary course RSAs reduce holdout risk in out-of-court context Cautionary Note: In re Station Holdings Company, Inc., No. 02-10882 (Bankr. D. Del. Sept. 30, 2002); In re NII Holdings, Inc., No. 02-11505 (Bankr. D. Del. Oct. 22, 2002) Judge Walrath held that postpetition lockup agreements violate section 1125(b). She was particularly concerned about the absence of any provision in the agreements that would have allowed the signatories to change their votes if the information in the subsequently filed disclosure statement turned out to be different from what they had 9 previously received. She designated the votes of the signatories under section 1126(e).
THE HOLDOUT PROBLEM Critical weakness of exchange offers Particularly true for companies that are using an exchange offer as an alternative to an in-court restructuring The exchange offer only binds accepting security holders, leaving “stub debt” behind; therefore, if the exchange offer is an alternative to an in-court restructuring, need to get substantially all holders to accept (typically >90%) Bondholders (vulture funds typically) who can hold out of an exchange retain a bond with original payment terms, often with improved prospects for payment because of financial concessions made by the bondholders who exchanged Still may be an issue even for companies not as troubled Subject to blockage by group of holders, particularly when conditioned on high level of acceptance 10
STRATEGIES FOR THE HOLDOUT PROBLEM Sticks Carrots Risk of bankruptcy if the Greater market value exchange is not effected Greater interest rate Non-exchanging holders Shorter maturities may own securities that Senior or secured position are junior to those held by More restrictive covenants the exchanging holders Increased equity position in Exit consents – covenant the issuer stripping Limited liquidity for holdouts following the exchange Not all carrots and sticks are applicable in each situation • Purpose of the exchange offer will dictate what is appropriate • Covenants in existing debt may limit options 11
OVERVIEW: DISCLOSURE AND PROCEDURES US restructurings which are effected in whole or in part prior to a bankruptcy filing must comply with the securities laws The Securities Act of 1933 (the The Securities Exchange Act of “Securities Act” or the “33 Act”) 1934 (the “Exchange Act” or the “34 Act”) and the rules promulgated by prohibits the offer of securities the SEC to implement the ’34 Act set unless a registration statement containing voluminous prescribed forth procedures for soliciting the information is filed with the SEC – purchase or exchange of, and including audited financial consents with respect to, statements outstanding securities “offer” means you can’t even ask Rule 10b-5 – “insider information” Self tender rules – Rule 13e the importance of preliminary “discussions” Tender (exchange) offer Rules – The Securities Act prohibits the sale Rules 14d and 14e (including the resale) of securities Proxy Rules – soliciting shareholder unless the SEC has declared the not bondholder (unless bonds are registration statement “effective” convertible) consent Strict liability for disclosure violations Trust Indenture Act Because the registration process is costly and time-consuming (See Registered Exchange Offers Section) - in restructuring we focus on exemptions 12
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