11.12.2013
11.06.2013
Advanced Distressed Debt: Recharacterization
One of the the more fought over issues in contentious bankruptcy proceedings revolves around whether a loan is really a loan. Unsecured creditors often fight to "recharacterize" a loan as really equity. Why? Because that leaves a much larger piece of the pie for them, relative to diminished recoveries that would be absorbed by senior lenders. While the bankruptcy code doesn't specifically address the issue of recharacterization, jurisdictions across the country have developed their own ways and analyses to test whether an instrument can be recharacterized.
DDI contributor George Mesires has penned a fantastic piece below regarding a recent decision in the ninth circuit of appeals on this very issue. Enjoy!
Recharacterizing Debt as Equity
A recent decision issued by the Ninth Circuit Court of Appeals underscores a risk that a presumptive creditor faces when a bankruptcy court is authorized to review a loan transaction and recharacterize the purported debt as equity in a bankruptcy proceeding. See generally, In re Fitness Holdings International, Inc., 714 F.3d 1141 (9th Cir. 2013). Although not breaking new ground, the Ninth Circuit resolved a split within its circuit, and joined four other circuit courts of appeals in holding that a bankruptcy court has the authority to recharacterize a debt claim as equity.
Background
Over the course of four years preceding its bankruptcy case, the Debtor, a home fitness company, borrowed over $24 million from its sole shareholder, Hancock Place. Thereafter, the Debtor borrowed $12 million on a secured basis, consisting of both term and revolving loans, from Pacific West Bank, guaranteed by Hancock Place. Subsequently, the loans were amended several times to accommodate the Debtor and its weakening financial position. In 2007, Pacific West Bank agreed to refinance Fitness Holdings’ growing debt burden. The loan proceeds were used to pay off Pacific West’s secured debt, which released Hancock Place from its guaranty, and to pay down, in part, Hancock Place’s unsecured debt. Notwithstanding these restructurings, Fitness Holdings filed a voluntary petition under chapter 11 of the Bankruptcy Code.
During the bankruptcy case, the unsecured creditors committee sued Fitness Holdings, the Bank, and two of the company’s directors to recover the payments made to the Debtor’s sole shareholder (Hancock Place) alleging, among other things, that the payments were fraudulent transfers. The committee alleged that the payments were not loan repayments, but rather, improper distributions by the Debtor to the equity holder for less than reasonable equivalent value.
The bankruptcy court dismissed the lawsuit for failure to state a claim. During the subsequent chapter 7 case, the liquidating trustee appealed the bankruptcy court’s decision. The district court affirmed the dismissal, citing the Ninth Circuit Bankruptcy Appellate Panel’s Pacific Express precedent, which held that bankruptcy courts are limited to the statutory remedy of equitable subordination under section 510 of the Bankruptcy Code, and accordingly that the chapter 7 trustee was barred from bringing a recharacterization action. By so holding, the payments made to the defendants were deemed to be debt, and by definition, the payments could not be fraudulent transfers.
The Ninth Circuit’s Decision
On appeal to the Ninth Circuit, the appellate court held that the district court was not bound by the BAP’s Pacific Express decision, and overruled that decision, holding that the remedy of equitable subordination is separate and distinct from the remedy of debt recharacterization. In the fraudulent conveyance context, the Ninth Circuit held that when a defendant asserts that the payments were debt payments, the court must determine under state law whether the purported debt is, in fact, debt. If the court determines that the payment is not a payment on account of an underlying debt, the court may recharacterize it as equity under state law principles.
The Ninth Circuit is the Fifth Court of Appeals to hold that a bankruptcy court has the authority to recharacterize claims in bankruptcy proceedings. However, this growing consensus has not resulted in unanimity over the analytical framework for recharacterization. For instance, the Fifth Circuit looks to state law to define claims. The influential Third Circuit, home to the Delaware courts, holds that a court may exercise its equitable authority to determine if a claim is more like debt or equity, and considers several factors, including (i) the name of the instrument; (ii) whether the instrument includes a right to enforce payment of principal and interest; (iii) whether the instrument includes a fixed maturity date; and (iv) whether the instrument affords the holder a right to share in profits or participate in management. The Sixth Circuit uses an 11-factor test derived from federal tax law to review a claim for recharacterization. Although the Second Circuit has not addressed the issue, bankruptcy courts in New York follow the Sixth Circuit and consider factors such as those identified above by the Third Circuit, but also the following: (i) presence or absence of a fixed maturity date and schedule of payments; (ii) the source of repayments; (iii) the adequacy or inadequacy of capitalization; (iv) identity of interest between creditor and stockholder; (v) the security, if any, for the advances; (vi) the corporation’s ability to obtain financing from outside lending institutions; (vii) the extent to which the advances were subordinate to the claims of outside creditors; (viii) the extent to which the advance was used to acquire capital assets; and (ix) the presence or absence of a sinking fund to provide repayment.
Although the Seventh Circuit, which includes courts in Illinois, has not addressed the issue, a federal district court has expansively construed the scope of a bankruptcy court's equitable powers stating that other circuit courts have “correctly recognized recharacterization as a tool that may be used by bankruptcy courts.” In re Outboard Marine, 2003 WL 21697357 (N.D. Ill. 2003). It accordingly remanded the case to the bankruptcy court to consider whether the loan should be recast as equity upon consideration of the factors identified by the Sixth Circuit.
The Ninth Circuit joined the Fifth Circuit in holding that a bankruptcy court shall look to the underlying state law to determine if a particular obligation owed by the debtor is debt or equity, which is consistent with U.S. Supreme Court precedent that holds that the determination of property rights is generally determined by state law.
Although this decision should be welcomed by third party creditors insofar as it allows estates to recharacterize debt and potentially increase the pool of funds available for unsecured creditors, it also underscores the importance of being familiar with the state law requirements of creating a debt obligation. If improperly structured, a presumptive secured creditor may be in the unenviable position of finding its debt recharacterized as an equity claim, commonly worth nothing in a bankruptcy proceeding.
George Mesires is Co-Chair of the Finance and Restructuring Practice at Ungaretti & Harris, LLP in Chicago, and concentrates his practice on finance, corporate restructuring, bankruptcy, distressed mergers and acquisitions, and general corporate matters. George can be reached at grmesires [at] uhlaw.com
10.04.2013
Analyst Program at Reorg Research
As some of you know, I started a company: Reorg Research. We are doing some incredible things with both our technology and our intelligence product that is setting a new standard in the marketplace. I have a team of incredibly bright-minded analysts and lawyers in producing news and research on distressed and stressed situations across the board. And our customers, without a doubt, are some of the world's greatest buy side and sell side institutions.
Warren Buffett captured it best: I honestly do tap dance to work every day. I work with people I love, doing what I love.
As we expand our coverage, I am looking to hire a few more analysts join our growing team. Candidates should have 2+ years of experience in restructuring advisory and/ or financing investment banking, or in a distressed/ special situations desk analyst role. Excellent oral and written communication skills are needed. Analysts will publish research and topical news-oriented articles daily and will be in regular contact with subscribers, including buy-side investors, sell side desks, restructuring advisers and legal professionals. Ability to work independently and quickly is a must. Our team is highly collaborative and dedicated-- a congenial and adaptive personality is critical. This is a NY based position.
Proficiency/ working knowledge in the following areas:
- Financial modeling, including valuation and recovery analysis
- Analysis of legal documents, including bankruptcy filings, credit agreements, bond indentures etc.
- Bankruptcy process
- Covenant analysis
For those interested, please send your resume to: analystjobs [at] reorg-research [dot] com Read more...
10.01.2013
Distressed Debt Investing: Puerto Rico
The topic on everyone's minds these past few weeks in distressed debt land has been Puerto Rico. While yields on traditional muni land paper have come in quite a bit over the past few weeks, I am going to go out on a limb and suggest, for the benefit of the doubt, PR will be a topic that we will be talking about for a LONG TIME. Frankly, the situation is bad (not to mention the forced selling aspects of when certain issuers lose their IG rating). The sheer amount of debt is staggering and we are not just talking about COFINA or PREPA or an off the run situation like the University of Puerto Rico but also all the PR based corps as well as the implications for the monolines.
We've started doing a lot of work at Reorg Research on Puerto Rico given these wide ranging implications and the sheer complexity and richness of its capital structure. Our first piece, one that we've been thinking about to introduce the legal ramifications of the case (we have a number of lawyers on staff now) I've reproduced below. Enjoy!
The 'Cracks' of the Bankruptcy Code? The Ambiguous Status of Government-Related Entities in U.S. Commonwealths
Recent attention on the precarious situation of Puerto Rico's economy has raised questions regarding the impact of Puerto Rico's status as a commonwealth territory on Puerto Rico's recourse to United States bankruptcy law.
Puerto Rico, like the United State's other commonwealth, the Northern Mariana Islands, is subject to the jurisdiction of the federal courts and are covered by the bankruptcy code. This is formalized in the code, which defines "United States," (when used in a geographical sense) to include "all locations where the judicial jurisdiction of the United States extends, including territories and possessions of the United States." As a result, "persons" domiciled in or with assets in Puerto Rico can be debtors under the code, just like persons in the fifty states.
Interestingly, the drafters of the code have not extended this equal treatment to chapter 9. Political subdivisions of "states" may file for chapter 9. The definition of "state" in the bankruptcy code "includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title." According to Collier's, this exception "has the effect of preventing political subdivisions, agencies and instrumentalities of the District of Columbia and Puerto Rico from being debtors in chapter 9 cases." Under section 109(c), only a municipality is an eligible debtor under chapter 9, and that term means a political subdivision, agency or instrumentality of a state. For this purpose, "state" is limited to one of the 50 states of the United States.
It is also worth noting that the states and commonwealths themselves are not eligible to file for chapter 9 because they are not "municipalities" and only "municipalities" are eligible for chapter 9. According to the federal courts' "bankruptcy basics" page the definition of municipality, "is broad enough to include cities, counties, townships, school districts and public improvement districts. It also includes revenue-producing bodies that provide services which are paid for by users rather than by general taxes, such as bridge authorities, highway authorities, and gas authorities." But, there is simply no procedure in the bankruptcy code to deal with the insolvency of a "state" itself.
Another important limitation on government-related entities' recourse to bankruptcy law stems from the code's definition of who is a "person." Only "persons" can file for chapter 7 and chapter 11 relief. The code defines the term "person" to include "individual, partnership and corporation" but not "governmental units." "Governmental units" means "United States; State; Commonwealth; District; Territory; municipality; foreign state" and also any "department, agency, or instrumentality of the United States . . . a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state" (emphasis added).
As a result of the above, the United State's commonwealth territories - Puerto Rico and the Northern Mariana Islands - are in the odd position that both their municipalities and their "governmental units" cannot file as debtors under any chapter of the bankruptcy code. Adding further confusion, there is no bright-line test as to whether a government-related entity is or is not a "governmental unit" for purposes of the code.
All of these factors were on display in a recent case from the Northern Mariana Islands. The Northern Mariana Islands Retirement Fund filed for bankruptcy on April 17, 2012, describing itself as a "public corporation and autonomous agency of the Commonwealth established pursuant to Public Law 6-17 to provide retirement security and pensions to the employees of the Commonwealth government." At the time of its filing, the fund estimated it was only 32% funded due to a "perfect storm" of factors including "the failure of the Commonwealth's central government and autonomous agencies to remit full employer contributions; a difficult investing climate over the most recent three to four years; and a benefit structure that has been continuously increased and made more generous by the Commonwealth government without a corresponding increase in funding to the Debtor to cover increased costs," combined with the Commonwealth Government "declaring payment holidays, diverting earmarked revenues from the Debtor and reducing contribution rates for the Commonwealth Government, its agencies and political subdivisions." The fund estimated that it would deplete its assets by July 2014 and thereafter would be "unable to provide any level of benefits to current and future Beneficiaries."
Despite the extreme financial predicament of the fund, a variety of parties - including the Commonwealth Government and the United States Trustee's office, as well as individual retirees - moved to dismiss the bankruptcy, asserting the fund is an instrumentality of the commonwealth government and therefore a "governmental unit" not eligible for relief under chapter 11.
The fund's omnibus response to the motions to dismiss included the following arguments: The fund lacks traditional government powers and does not conduct traditional government functions; the commonwealth government does not actively control the fund; and congressional intent requires an "inclusive" approach to eligibility. Interestingly, the fund also argued there was no "satisfactory alternative" to bankruptcy because it is not eligible for chapter 9 relief as a municipality of a "State" due to the definition of "State" in the bankruptcy code. The only alternative for the fund, according to its response, is receivership and receivership is not an alternative to bankruptcy since receivership would "essentially constitute a liquidation" and lacks the protections of the bankruptcy code that help debtors achieve a "fresh start." A footnote in the fund's response states that, if denied bankruptcy eligibility, it would "fall between the cracks" of the bankruptcy code.
Judge Robert J. Faris sided with those seeking to dismiss the case and ruled that the fund was ineligible to be a debtor. Judge Faris rejected an "alternative relief" test which would have looked at the fund's non-bankruptcy alternatives. He called this approach, "completely unmoored from the statutory text." Faris concluded that the key question is whether the fund is an "instrumentality" of the commonwealth but found dictionary definitions of the term "instrumentality" lacking a plain meaning. Instead, Faris relied on legislative history and concluded that the intent of Congress was to define "instrumentality" broadly so long as the relationship between the entity and the government is "active...in which the department, agency, or instrumentality is actually carrying out some government function." Faris concluded that "providing compensation and benefits to government employees is a quintessential government function." The opinion also relies heavily on the fact that the fund's plan serves only government employees and retirees, and that the Commonwealth has "significant ongoing influence over the Fund." Judge Faris contrasts this with a Third Circuit decision in the Nortel case that ruled that a UK entity established by the government to guaranty obligations of failed private pensions plans was not a "governmental unit." Faris distinguished Nortel because in that case the fund "was funded entirely by private employers and benefitted only nongovernmental employees."
The Northern Mariana Islands Retirement Fund case is notable because it shows the precarious situation of government-related entities in the United States' territories. Judge Faris showed no inclination to look at the non-bankruptcy alternatives available to the fund, and instead relied on a the text and legislative history of the bankruptcy code to decide whether it was a "governmental unit." However, it is unclear if the drafters of the bankruptcy code truly intended to leave "governmental units" in the territories ineligible under both chapter 11 and chapter 9. The consequence for the Northern Mariana fund was drastic. Various retirees sued both the fund and the Northern Mariana Islands government and the result is a recent settlement agreement whereby the fund is being taken over by a receiver and retirees will face haircuts to their benefits.
For more information on Reorg Research, please visit our site here: Reorg Research or request a trial here: Reorg Research Trial Request
8.17.2013
Off Topic: On Starting a Company
I was looking through the blog today for an old post, and I was surprised to realize that my last original blog post was March 14th, 2013. I've tried my damnedest to put some unique content ever few weeks and promise you I will do a better job in the future. I truly apologize for the lack of content.
March 14th, despite being a little over only 150 days ago seems like an absolute eternity. Since then, my wife has given birth to our second child (healthy baby boy), my mom has had brain surgery (battling breast cancer), and I've worked harder than I've ever worked starting a company. I've debated for some time in writing post below and decided to finally pull the trigger.
As many of you know, Reorg Research spawned from a problem that has plagued distressed debt investors, restructuring bankers, and lawyers for a long time. Principally, there was an incredible amount of time wasted navigating archaic tools to get information on bankruptcy proceedings. Whether it be claims agent sites or PACER, following multiple dockets was an inefficient process in which time could be better used actually analyzing information versus finding information. I believe, and our customers will attest, that Reorg Research is by far the easiest way to stay up on many cases at any one time on a near real time basis. I haven't logged in PACER in 7 months and couldn't imagine having to go back to the old fashioned way of tracking cases whether they be bankruptcy, adversary proceedings, patent litigation, anti-trust, etc.
Since then, Reorg Research has grown and matured our news, reporting, and research into something that I am EXTREMELY proud. We constantly hear how great our content is relative to our competitors and we strive to constantly improve our offering. I like to tell people one of my favorite things to do is read disclosure statements. When friends / family outside the distressed world ask me what our company does, I respond by saying "We are the world experts on corporate bankruptcies and distressed debt." I stand by that.
Reorg Research is not what this post is about. This post is about 3 lessons I've learned starting a company. I could probably expand this list into many many many more things I've learning via mistakes, failures, etc, but I think this list of three are paramount to building a successful organization.
Lesson #1: Hire well. Hire meticulous.
While this is really two lessons, I think it is amazingly important to starting a company. As an example, let's say you are a new organization with 5 employees. If just ONE of them is bad, productivity decreases by 20%. Further, the founder and the remaining 3 employees need to pick up the slack and therefore their core roles are compromised.
Hiring is by far my most important job. It's not even close. People argue raising capital is an important aspect of building a company. My retort is capital is plentiful while talented, excellent, tenacious, and loyal people are rare and seemingly impossible to find.
We interview LOTS of people for each job that we are hiring. The combination mentioned above (talented, excellent, tenacious, loyal) is hard to find but finding that person that can fit with your team takes a meticulous process that is rigorous but at the same time fulfilling.
My staff is EXCELLENT. I would put my team up against any out there.
Lesson #2: You have to be obsessed with what you do.
I'm sure everyone has heard this one in the past. You have to like what you do to be successful at it. I take that a step further. You have to be obsessed with it.
Starting a company is hard. The amount of small things to do to get a company off the ground is comical. Did you know you need to keep I-9s in a different folder than other employee files? It never ends and only builds up as your company grows.
I love distressed. I love bankruptcy. As some of you have seen, my first slide whenever I teach a class on distressed starts with a slide that reads: In 20 years, what's most likely to be around? Google, Facebook, or bankruptcy.
I am the guy that gets jazzed up by marshaling issues in OSG, or deficiency claims in Cenage, or litigation value in TCEH. I'll read a filing and send off emails at ungodly hours and then people look at me strangely the next time they see me. "Are you ok?" they ask. Of course I am - Wasn't that filing I sent you AMAZING?
The days are long and to get through them you can't just love what you do. Not just that (adding a rider to Lesson #1), the people around you have to also love what they do. These are people you will bounce ideas off of and spend long long hours with and that rapport by relishing in a common topic / theme / subject / task makes the days go by easier.
Lesson #3: The reason why so many start ups fail is that they can't get to or don't know their customer
We are a B2B start up. Our customer are hedge funds, investment banks, asset managers, law firms, restructuring advisors etc. The blog, DDIC, and the network they provided and I built since 2009 was invaluable to getting momentum for Reorg Research's offering which in turn increases word of mouth effects which in turn gives you more momentum.
People often ask me if I started the blog knowing Reorg Research was an ultimate goal. The answer is no. I started the blog because I love bankruptcy and distressed debt and a friend sent one of my early stories to a WSJ editor who linked to the blog and the rest is history. But the network that was built by the connection with other like minded people that love what we all do on a daily basis was priceless.
If you are thinking about starting a company, do whatever you can right now to start getting in front of customers. Start a Twitter feed, start a blog, optimize your LinkedIn profile, go to networking events, etc. It doesn't matter.
The reason this is so important, outside of the revenue / growth aspects, is that if on Day 0 (not even Day 1), you can't get solid and critical feedback from a handful of potential users, you are going to have a heavy uphill battle. The alpha for Reorg Research was ready for testing in 4Q 2012 where 10-20 close friends and readers of the blog got to test drive the system and crush me with their feedback . The site looks and functions infinitely better because of that feedback.
If you are considering starting a company (or fund for that matter), I would suggest you read this book: http://www.amazon.com/The-Four-Steps-Epiphany-Successful/dp/0976470705/ref=pd_sim_b_9. It's one of the few books I can say really changed the way I view successes and failures of the business / start up world.
Appendix
One of my employees has been tasked with yelling at me if I am not writing blog content on a more regular basis. While I can't promise I will be penning as many pieces I did in the past, I will do a better job of getting emerging manager interviews, legal pieces, and conference notes up on the site. Now back to that Cengage DS!