Restructuring Overview: Chapter 11. Renée M. Dailey June 28, 2013

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1 Restructuring Overview: Chapter 11 Renée M. Dailey June 28, 2013

2 What is Chapter 11? A chapter contained in title 11 of the United States Code (the "Bankruptcy Code") which provides for the reorganization, rather than immediate liquidation, of a debtor Primarily intended for the rehabilitation of business enterprises (the "fresh start policy") Goals To provide equitable treatment for creditors To preserve incremental value attributable to the ongoing operations 2

3 Why do companies utilize Chapter 11? Causes for filing Over levered Litigation liabilities Operational restructuring Easier to identify and negotiate with parties Creation of a single national forum to deal with groups with competing interests Statutory committees Ability to bind all parties to a solution Class approval of at least two thirds of amount of debt and majority in number of those voting binds entire class Discharge of debts 3

4 Chapter 11 Restructuring Tools Chapter 11 provides a debtor with certain tools to restructure their liabilities Automatic stay (the breathing spell) Rejection of contracts Compromise claims and equity Class approval binds all creditors in class Ability to "cramdown" junior creditor classes Proposal of a Plan of Reorganization 4

5 The Players in a Chapter 11 Case 5

6 The Players Debtor and its existing management ordinarily continue to operate the business as a "debtor in possession" Trustee can be appointed to take over management of the debtor's affairs only for "cause"; such appointments are rare Official Committee of Unsecured Creditors Usually the seven largest unsecured creditors willing to serve Equity Committee rare 6

7 The Players (cont d) "Ad Hoc Groups" of creditors All creditors, shareholders, interested governmental entities are "parties in interest" and can be heard on any matter 7

8 Automatic Stay 8

9 Automatic Stay Prohibits substantially all legal actions affecting the debtor or its property On account of a prepetition claim or debt Stops all actions by individual creditors to obtain satisfaction of their claims using remedies available under state law Stops creditor collection efforts Prevents lien foreclosures or lien creation Generally prevents termination of contracts with the Debtor Limited exceptions for governmental regulatory actions, termination/netting of swaps, commodities contracts or forward of contracts 9

10 Claims and Claim Priority 10

11 Order of Claims (the "Waterfall") DIP Loan secured claims Secured claims (up to value of collateral) Administrative claims (claims for post petition salaries, vendor claims, estate professionals, etc.) Priority claims Unsecured claims Equity 11

12 The Chapter 11 Plan 12

13 The Plan Principal method of effectuating a reorganization in Chapter 11 is through a Chapter 11 plan (a "Plan") Under Chapter 11, can be a plan of reorganization or a plan of liquidation A Plan can provide for a number of changes to pre petition rights Amounts, interest rates or maturities of outstanding debts Reinstatement of favorable existing contracts notwithstanding defaults Satisfaction or modification of liens Rejection or assumption of contracts and leases Amendment of the debtor's corporate charter Issuance of new debt or equity securities for cash, property, existing securities, or in exchange for old debt or equity interests 13

14 The Plan (cont d) Existing creditors' debt claims are usually reduced or modified Creditors of one or more classes often become shareholders of the reorganized entity (an "equitizing" Plan; a/k/a debt for equity swap) The debtor has the exclusive right to propose and file a Plan during the first 120 days Classification of Claims and Equity Interests Claims and equity interests are grouped into one or more "classes," depending on their nature Claims of a particular class must be "substantially similar" Plan must provide the same treatment for each claim or equity interest in a particular class 14

15 Voting on a Plan Only impaired classes of creditors or shareholders are entitled to vote on the Plan Each holder of a claim or equity interest votes on the Plan with other members of the applicable class Acceptance by a class requires consent by holders of claims equaling at least two thirds in amount and a majority in number of claims Classes recovering no distribution under the Plan are deemed to reject the Plan, and are not even solicited A "cramdown" on junior classes of creditors can be imposed if a consensual Plan cannot be achieved 15

16 Effect of Plan Confirmation Distribution of plan value (cash, new notes or equity) in accordance with claims Waterfall Discharge of all prepetition debts; no claims against debtor for "unpaid portion" Debtor company emerges as a new entity and conducts business 16

17 Restructuring in Chapter 11 17

18 Restructuring Hypothetical: Bank Debt & Public Notes Failed Exchange Offer Facts Publicly Traded Company Oil and natural gas exploration and development company Borrowed extensively 5 years ago to expand operations $200 million senior secured revolving credit facility maturing in May 2014 $250 million unsecured public notes due May 2016 Company, Banks and Ad Hoc Group of Public Noteholders agree to certain restructuring terms, but the requisite 90 95% of Noteholders did not agree to exchange their notes Company filed Chapter 11 to stop Banks from exercising on their collateral and to "force" a restructuring on the Noteholders 18

19 Implementation of Restructuring in Chapter 11 Automatic stay prevents Banks from exercising on their collateral Company proposes a Plan of Reorganization (in consultation with "majority" of Banks and Notes) Debtor classifies creditors into different classes under the Plan; creditors vote by class Two thirds in amount and a majority in number of creditors voting in a class can bind the entire class 19

20 Implementation of Restructuring in Chapter 11 (cont d) Classes of Claims under Plan Class 1: Administrative Expense Claims Unimpaired (paid in full) deemed to accept Class 2: Secured Claims Impaired entitled to vote Extend $200 million Bank debt to May 2016, with "market interest" and "market" covenant package; maintain senior lien status Class 3: Unsecured Note Claims Impaired entitled to vote For every $100 in existing Notes, distribute $50 in new notes and 75 shares of new company (cumulative 100% of equity of Company postreorganization) Class 4: General Unsecured Claims (miscellaneous vendors) Impaired entitled to vote Distribution of 50 cents on the dollar Class 5: Equity Impaired Deemed to reject No recovery 20

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