Bankruptcy Reorganization Plan Strategies: Reinstatement ...

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Bankruptcy Reorganization Plan Strategies: Bankruptcy Reorganization Plan Strategies: Debt Reinstatement and Indubitable EquivalentStrategies for Debtors, Lenders and Creditors Proposing or Opposing a Cram‐Up Plan

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, NOVEMBER 17, 2010

Today’s faculty features:

Dean R. Vomero, Managing Director, Mesirow Financial, Cleveland, Ohio

Douglas S. Mintz, Special Counsel, Cadwalader Wickersham & Taft, Washington, D.C.

Jeffrey W. Levitan, Partner, Proskauer, New York

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“Cram-up” From a Financial PerspectivePerspective

November 17, 2010

Dean R. Vomero

© 2010 Mesirow Financial Holdings, Inc. All rights reserved.

Table of Contents

I. “Cram-Up” Overview 3

II. “Cram-Up” Game Plan 5

III. Case Study – MagnaChip Semiconductor, LLC 10y g p ,

IV. Curriculum Vitae 21

Privileged & Confidential – Contains Non-Public Information© 2010 Mesirow Financial Holdings, Inc. All rights reserved. 5

“ ”I. “Cram-Up” Overview


“Cram-Up” Overview

Key Issues Major Activities• Does existing management want us?

• Would the Committee’s (or opposing creditors’) plan be fair/feasible from an economic perspective?

• Gain management support

– Supports fairness/feasibility

– Enables an efficient process

y j

– Are the Senior Creditors currently exposed to the same risk that they were exposed to when they agreed to extend credit?

• Will the Senior Creditors be adequately protected?

• Build a solid analytical base by determining credible benchmarks

– “Cram-up” terms (interest rate, duration, security, covenants, collateral and payment terms)

• Are the financial terms fair?

– Interest rate

– Amortization

D ti

– Comparable credit quality measures (yields, CDS or S&P benchmarks)

– Earnings growth and trading multiples of comparable companies

– Duration

– Covenants

– Collateral

– Credit risk

– Industry supply and demand forecasts – think global!

• Prepare credible forecasts through term

– It is hard to argue fairness/feasibility if theIt is hard to argue fairness/feasibility if the enterprise can service debt and capital (working and CAPX) requirements using a “stress” scenario

• Ensure adequate protection


– Determine value (liquidation/enterprise)

– Assess the enterprise credit quality

II. “Cram-Up” Game Plan


Cram-Up Game Plan

• “Secure the Players” to gain management support – Use the three “C’s”:

– Compensation, especially post-confirmation incentive plans

– Capital, for new products or acquisitions

– Composition of the post-emergence Board and management team

• “Block and Tackle Relentlessly” – Build a strong analytical base• Block and Tackle Relentlessly – Build a strong analytical base

– Determine a truly comparable set of companies. Consider the following:

Publicly traded debt (CDS, credit rating and yield data is available)

Geographical and product/business unit revenue dispersion

Position in the supply chain (consumer facing/next tier down/commodity based) and business model (lower cost vs. higher perceived service)

– Obtain industry supply and demand forecasts built with econometric models on a global basis. These are generally subscription based, but considering most industries are influenced in some degree by global supply and demand domesticindustries are influenced in some degree by global supply and demand, domestic only analysis may be limited.

– Determine comparable groups’ internal earnings estimates and analyst estimates. Read analyst reports for the comparable group and for the Debtor’s industry.

– Perform correlation analyses based on a readily available forecasted macroeconomicPerform correlation analyses based on a readily available forecasted macroeconomic or industry statistic (such as GDP) to determine what most influences the Debtor’s revenue or earnings.


Cram-up Game Plan (continued)

• Run the “Triple Option” to assess the Debtor’s forecast. The purpose of this analysis is to determine liquidity through term. This supports both fairness/feasibility and adequate protection. The forecasts are also key inputs in determining the Debtor’s enterprise value and credit quality. Some good practices include:

– Stress Scenario – Extrapolate the Debtor’s historical earnings through an p g gindustry cycle (three to seven years depending on the industry) subject to very specific and rational adjustments. Such adjustments may include closing a business unit or other truly significant non-recurring economic events. Then subject this extrapolation to certain stresses (reduction in volume, compression of margins or other key variables).

– Comparative Scenario – Through selection of a truly comparable set of public companies, compare the Debtor’s expected earnings to company growth estimates or analyst estimates. Additionally, compare growth rates to industry supply and demand estimates using third party industry forecasts such as those provided by Global Insight.

– Statistical Scenario – Correlate the Debtor’s historical revenue or earnings to an independent variable for which reasonable forecasts exist (such as GDP). Once correlated, the forecast of the independent variable will provide a reasonable estimate of the Debtor’s earnings or revenue.



• Defense “Trick Plays” – Certain cash requirements are difficult to project due to lack of information or credible benchmarks. Use best efforts to estimate:

– Tax impact post-confirmation

– Intercompany claims of international assets (may want these claims to remain in tact post-confirmation in order to transfer funds from a subsidiary to the parent tax f )free)

– Plan funding costs considering DIP pay-off and administrative expenses (especially professional and cure costs)

– Ability to refinance the senior class’s obligations at the end of the term

– Capital equipment requirements, assuming substantial under-investment prior to and during the bankruptcy (consider funding new product or market development so the enterprise will have a greater probability of growth)

Note: When benchmarking this measure to more healthy comparables, attempt to distinguish between maintenance, productivity and capacity expansion CAPXg , p y p y p

– Working capital requirements [consider if the enterprise is emerging at a low point in their respective business cycle, vendor accommodations exist or post-emergence payment terms will be had (can be a great source of liquidity) or customer accommodations (shorter payment terms) will return to post-filing levels]



• Attack the “Big Uglies” (the Senior Creditors) – After the players are secured, fundamental bl ki d t ki l ti i l th t i l ti f t l t d t i k lblocking and tacking analytics are in place, the triple option forecasts are complete and trick play defense is set, you are in a position to attack:

– Demonstrate that cash flow will be sufficient to fund all business obligations with adequate cushion, therefore supporting feasibility. This will help support proposed duration, amortization and financial covenants.

– Calculate the Debtor’s pro-forma credit quality at the time of the initial credit agreement, at post-emergence and at term. This will support adequate protection and post-emergence credit terms.

This trend, given a credible forecast and likely forgiveness of significant debt as a result of the bankruptcy should improveresult of the bankruptcy, should improve.

Compare the post-emergence credit statistics to S&P standards, and the comparable group’s statistics (for those with ratings or publicly traded debt) to assist in the determination of credit quality. Utilization of market based measures in the form of yield and CDS pricing for the comparables can also provide useful data if comparable

di i d d il bl

Note: Any resemblance to a senior lender is purely an unintended coincidence

credit ratings are dated or not available.

Utilize the comparable group’s yield and CDS data to help support the proposed interest rate, adjusting for any security differences (if public yield, ratings or CDS data is for unsecured debt) to support the reasonableness of the proposed interest rate.

Calculate the Debtor’s liquidation and enterprise value to support adequate protection (the– Calculate the Debtor s liquidation and enterprise value to support adequate protection (the “collateral” variable in credit).


III.Case Study – MagnaChip Semiconductor, LLC


Overview of MagnaChip Semiconductor, LLC

• MagnaChip Semiconductor, LLC (“MNX”, or, the “Company”), headquartered in Chungbuk, South Korea, is a leading Asia-$based designer and manufacturer of analog and mixed-signal semiconductors with annual revenue of approximately $700

million. Substantially all operating assets are located in Korea but MNX had a U.S based capital structure.

• MagnaChip filed for chapter 11 bankruptcy protection in June 2009 due to, among other factors, significant declines in the semiconductor market during the second half of 2008 and first half of 2009. Based on this decline, and other factors, MagnaChip was unable to support approximately $850 of pre-petition interest bearing debt consisting of approximately:g y g g y

– $95 million in senior secured revolving credit facility (“Senior Secured”)

– $500 million second lien debt (“Second Lien’s”)

– $250 million unsecured subordinated notes (“Unsecured Notes”)

• Upon its filing, the MNX filed a pre-arranged plan of reorganization (the “Debtors’ Plan”) which, among other terms, provided for the sale of substantially all assets to a Korean based private equity firm for approximately $70.0 million. TheSenior Lender’s supported the Debtors’ Plan despite the fact the Debtors’ Plan would cause the Senior Lenders’ to incur a substantial loss.

– The Debtors’ Plan provided virtually nothing for the Second Lien’s and Unsecured Note Holdersp y g

– The Second Lien’s were substantially held by Avenue Capital Management II, L.P. (“Avenue”), one of the largest global investment management firms in the world, managing assets valued at approximately $17.8 billion


Overview of MagnaChip Semiconductor, LLC (continued)

• The Official Committee of Unsecured Creditors (the “Committee”) took issue with the Debtors’ Plan The Committee was• The Official Committee of Unsecured Creditors (the Committee ) took issue with the Debtors Plan. The Committee was chaired by Avenue, represented by Lowenstein Sandler PC (“Lowenstein”) and Mesirow Financial Consulting, LLC (“MFC”) served as financial advisor.

• The Debtors proposed an overly aggressive confirmation schedule, as such, the Committee sought to terminate exclusivity as part of an objection to the Debtors’ Disclosure Statement. The Committee argued that the Debtors’ Plan was unfair to Unsecured Creditors based upon an unreasonably low selling price considering the effects of certainwas unfair to Unsecured Creditors based upon an unreasonably low selling price considering the effects of certain changes in the Debtors’ business plan and expected improvement in the semiconductor industry.

• The Court ruled in favor of the Committee; granting the Committee to the right to propose a plan.

• The Committee initially proposed a “Cram-up” Plan (the “Committee’s Plan”) sponsored by Avenue Capital. The Plan proposed by Avenue contained the following key economic terms:proposed by Avenue, contained the following key economic terms:

– Reinstate the Senior Lenders at par with a 10% interest rate for a five-year term with all other pre-petition terms substantially in place.

– Offer Second Lien’s the right to purchase stock on a pro-rata basis with Avenue backstopping up to $70.0 million.

Offer the Unsecured Notes equity if certain financial hurdles were achieved– Offer the Unsecured Notes equity if certain financial hurdles were achieved.

• The Debtors and Secured Lenders objected to the Committee’s Plan. Lowenstein and MFC prepared for a contested confirmation hearing, performing all analysis. However, shortly before the hearing, the Secured Lenders accepted Avenue’s offer to be bought out at approximately 80% of par.

• As a result the Committee’s Plan was uncontested and confirmed in September 2009 To date MNX successfullyAs a result, the Committee s Plan was uncontested and confirmed in September 2009. To date, MNX successfully completed a $250 million high yield offering and has just filed for an IPO, yielding a substantial return to pre-petition creditors.


“Cram-Up” Analysis – Overview of Procedures Performed

• “Secure the Players” – Investors were astute enough to meet with management in person (in y g g p (Korea) and had numerous other discussions. Investors also provided sufficient capital through the rights offering, proposed astute independent directors and installed an incentive plan that was fair and tied to financial forecasts.

• “Block and Tackle Relentlessly” – As will be illustrated in the following discussion, significant analyses were performed with respect to expected semiconductor supply and demand. Such analyses included:

– Review of analyst reports for the comparables and for the industry from most major research firms,

– Review of third party supply and demand forecasts,

– Specific country economic review’s of the Debtors’ major markets and

– Significant financial modeling of the Debtor’s historical performance.g g

• “Defense Trick Plays” – Numerous calls with specialized professionals and the Debtors’ were held in order to reasonably estimate complicated cash requirements such as taxes and administrative claims. The most significant of these was the impact of debt forgiveness on the Debtors’ international operating assets and holding companies.

– Utilized certain subject matter experts including interviews with experts in the appraisal of semiconductor equipment and facilities to support the liquidation valuation and discussions with Mesirow Financial’s currency trading desk to support proposed Korean Won risk exposure.


“Cram-Up” Analysis – Overview of Procedures Performed (continued)

“Th T i l O ti ” F t A th D bt did t j t fi i l lt b d th t fi l• “The Triple Option” Forecast - As the Debtors did not project financial results beyond the current fiscal year, a credible financial forecast had to be developed through the proposed term of five years. As such, MFC developed three cash flow forecasts over a five-year period (“Scenarios”) to determine whether liquidity would be sufficient to fulfill the financial obligations under the Committee’s Plan. The Scenarios included:

– Scenario 1: The Stress Scenario, extrapolated historical financial results with an adjustment for: (i) aScenario 1: The Stress Scenario, extrapolated historical financial results with an adjustment for: (i) a significant increase in CAPX, (ii) closure of a material money loosing business unit and (iii) material cost reductions implemented by Management.

– Scenario 2: The Comparable Scenario extrapolated recent financial performance based on analyst earnings estimates of the comparable group.

– Scenario 3: The Statistical Scenario extrapolated future revenue growth based on the Debtors’ analysis correlating the Debtors’ historical revenue growth to the weighted average GDP of the top five industrial nations. All other key financial variables, such as CAPX and EBITDA multiples were estimated based on significant historical analysis.

• “Attack the Big Uglies” – For each scenario, the following analysis was performed to support fairness, adequate protection and proposed secured debt terms:

– Performed a credit rating analyses to determine the credit quality of the Senior Secured Debt and compared the offered interest rate against the yield of certain market based measures.

– Performed an estimate of TEV using the discounted cash flow (“DCF”), market comparable and comparable transaction approaches on a fair market value basis.

These two activities represented the bulk of the analyses performed. These


activities are discussed in more detail in the following slides.

“Triple Option Forecast” (The Stress Scenario)

• The Stress scenario modeled conditions, in many respects used by S&P in determining the lowest investment grade rating “BBB” hi h i l d d (i) A GDP d li f h 3% (ii) l t f 10% d (iii) d i th t k k t“BBB”, which included: (i) A GDP decline of as much as 3%, (ii) unemployment of 10% and (iii) a drop in the stock market by up to 50%.

– These conditions were resident, for the most part, in the twelve months ended June 30, 2009.

– This scenario extrapolated the Debtor’s future cash use based on recent financial results subject to a few material and credible pro-forma adjustmentsand credible pro-forma adjustments.

– The conservative nature of this scenario was demonstrated by the fact that 2009 was, as indicated in the charts below, was a low point in both normalized historical demand and expected demand. Other research on the supply side indicated that a record amount of semiconductor supply was shuttered in 2009.

Apparent Consumption of Semiconductor, Circuit Boards and LCD Consumption of Top

8 000

9,000

10,000

11,000

12,000

ory

('000

)

Apparent Consumption of Semiconductor, Circuit Boards and LCD Consumption of Top Five Industrial Nations (Real Inflation Adjusted Dollars in Millions)

$467,175$456,136

$445 393

$491,161

$536,181

$580,505

$500,000

$600,000Scenario 1 projection

does not reflect potential benefits of improving demand.

4 000

5,000

6,000

7,000

8,000

ucto

r uni

ts e

x. m

emo

Estimate that units were still 20% below

$366,958

$398,281

$423,185

$398,194

$445,393

$365,847

$300,000

$400,000

0

1,000

2,000

3,000

4,000

Sem

icon

du trend in June 2009

$100,000

$200,000


1/93 6/94 11/95 4/97 9/98 2/00 7/01 12/02 5/04 10/05 3/07 8/08 $02004 2005 2006 2007 2008 2009E 2010E 2011E 2012E 2013E 2014E

Source: Goldman Sachs Source: Global Insight

• Significant analysis was performed to identify truly comparable public companies. The analysis began by selecting all analog related semiconductor companies across the globe. The comparable group was selected by comparing MNX’s key

“Triple Option Forecast” (The Comparable Scenario)

analog related semiconductor companies across the globe. The comparable group was selected by comparing MNX s key characteristics to the universe of public analog semiconductor companies.

– End market analysis – percentage of revenue was derived from consumer, industrial or other (such as defense) end markets

– Product type – percentage of revenue by type (memory, power, logic)

– Position in the supply chain – focus on design/patent protected products vs. subcontract/process capability

– Geographic dispersion of end market revenue

• As indicated in the table below, a representative sample of companies reasonably comparable to MNX was derived. The analyst estimates for revenue and EBITDA were the key inputs into this Scenario. Note that, generally, a limited number of

Comparables Analyst Projections 2009 to 2010 2010 to 2011 2011 to 2012

analyst estimates for revenue and EBITDA were the key inputs into this Scenario. Note that, generally, a limited number of analysts estimates for any one period could skew the results, unless such analyst(s) has(have) a strong record in predicting the subject companies’ financial results.

• As will be discussed later, this group was also used in determining enterprise value (fairness/adequate protection) and the reasonableness of the interest rate (current yields).

Comparables Analyst Projections 2009 to 2010 2010 to 2011 2011 to 2012

Company Name Revenue EBITDA Revenue EBITDA Revenue EBITDA

Novatek Microelectronics Corp. 11.5% 10.2% 11.8% 8.8% 9.6% 7.5%Himax Technologies Inc 10 4% 21 7% 12 3% 8 4% N/A N/AHimax Technologies, Inc. 10.4% 21.7% 12.3% 8.4% N/A N/AVanguard International Semiconductor Corp. 16.8% 60.7% 10.5% 17.3% 6.8% (2.2%)United Microelectronics Corporation 19.3% 20.2% 9.5% 9.1% 7.3% 21.4%Chartered Semiconductor Manufacturing Ltd. 15.3% 43.8% 13.9% 24.9% N/A N/ASemtech Corp. (7.7%) 1.6% 13.1% 25.2% 6.6% N/AMaxim Integrated Products Inc. 8.6% 33.2% 8.7% 9.5% 15.0% 25.1%Semiconductor Manufacturing International Corp. 18.1% 50.5% 11.2% 10.8% (8.5%) (14.2%)


g p ( ) ( )Tower Semiconductor Ltd. N/A N/A N/A N/A N/A N/AIntersil Corp. 14.3% 33.4% 8.3% 9.9% 6.1% (11.4%)

Average 11.9% 30.6% 11.0% 13.8% 6.1% 4.4%

“Triple Option Forecast” (The Statistical Scenario)

SUMMARY OUTPUTHistorical Data 2005 2006 2007 2008

Compile historical data, adjust for anomalies. Obt i i ffi i t hi t i l d t bHistorical Weighted GDP Growth 3.29 3.73 3.50 1.72

Historical Revenue, adjusted 671.7$ 671.4$ 652.7$ 591.1$

Correlation: Weighted GDP to RevenueMultiple R 0.95R Square 0.91Adjusted R Square 0.86

Regression Statistics Corr COV VAR X B1 Mean X Slope Mean Y Y

Obtaining sufficient historical data can be challenging due to acquisition etc.

Perform correlation: Requires trial and error. High R squared infers that change in GDP

drives 91% of change in revenue.g p0.95 24.80 0.62 39.93 3.06 122.19 646.71 524.52

GDP Forecast 2010 2011 2012Weighted GDP Growth 1.89 3.65 4.28

Predicted Revenue Growth 2010 2011 2012$600.2 $670.4 $695.6

Dollar Change $58.5 $70.3 $25.1% Change-----------------------------> To Scenario III 10.8% 11.7% 3.8%

g

“Big” math provides the parameters to predict future changes given a credible forecast of the

independent variable, weighted GDP in this case.

Independent variable forecast.

Expected revenue based on the regression

Table I - GDP WeightingUnited States 50.1%Japan 16.0%Germany 12.1%China 11.7%

equation and the GDP forecast.

Think global – look to subject’s “end markets”.United Kingdom 10.1%Source: Bloomberg Global Economy Watch Real GDP from World Bank for YE 2007 (1 yr lag in reporting)Table II - Weighted GDP Growth Historical ProjectedAnnuals 2005 2006 2007 2008 2009F 2010F 2011F 2012FUnited States 2.90 2.80 2.00 1.10 (3.10) 1.50 3.40 3.80Japan 1.93 2.03 2.35 (0.68) (5.50) 0.90 2.20 4.00Germany 0.80 3.00 2.50 1.30 (5.00) 0.60 3.10 3.10China 10.40 11.60 13.00 9.00 6.60 8.10 9.00 9.60United Kingdom 2.10 2.80 3.00 0.70 (4.20) (0.20) 1.70 2.40

GDP is a good starting point. Data is available either through third party providers or the

respective countries central banks.


United Kingdom 2.10 2.80 3.00 0.70 (4.20) (0.20) 1.70 2.40Weighted 3.29 3.73 3.50 1.72 (2.69) 1.89 3.65 4.28

“Attack the Big Uglies” – Enterprise Valuation

• Enterprise valuation supports both fairness and adequate protection.

• The forecast is the most important input into any valuation. Generally, valuations are limited in forecast analyses and scenarios. Using multiple scenarios across multiple valuation methods provides a well supported valuation.

• The results shown in the table below are heavily dependent on the comparable group, therefore its importance can not be underestimated. In contested matters in which valuation plays a role, attacking individual companies in the comparable group can be a useful approach Even when using the discounted cash flow method (“DCF”) comparables play angroup can be a useful approach. Even when using the discounted cash flow method ( DCF ), comparables play an integral role. For example, comparables determine:

– The appropriate debt to equity ratios since this parameter must be market based

– Betas (integral in the cost of capital analysis)

T i l l lti l ll th l t t f th t i l i th DCF th d– Terminal value multiples, generally the largest component of the enterprise value using the DCF method.

• Other “best practice” valuation techniques that are often overlooked in contested matters include: (i) use of predictive betas vs. historical; (ii) use of 20 year maturity government debt for the risk free rate; and (iii) use of the perpetuity growth in calculating a terminal value.

TEV Summary

DCFMarket

ComparableAverage

S i 1 274 8$ 326 1$ 300 4$ Scenario 1 274.8$ 326.1$ 300.4$

Scenario 2 341.0$ 358.8$ 349.9$

Scenario 3 334.5$ 355.8$ 345.1$

Minimum 274.8$ 326.1$ 300.4$

Average 316.7$ 346.9$ 331.8$


Maximum 341.0$ 358.8$ 349.9$

Millions of Dollars

“Attack the Big Uglies” – Credit Quality

• The credit quality of the post-emergence entity is important to support adequate protectionThe credit quality of the post emergence entity is important to support adequate protection.

• The analysis can be performed using S&P criteria and benchmarks including probability of default based on the subject’s credit rating.

• The analysis is difficult especially if significant post-retirement obligations are expected to continue post-emergence.

The table below calculated MNX’s key credit statistics and compared those statistics to S&P’s criteria for industrial• The table below calculated MNX s key credit statistics and compared those statistics to S&P s criteria for industrial companies.

– Note S&P publishes its annual ratings guidelines once a year. Review of these guidelines is required because the definition of each measure is quite specific and will require certain adjustments to the definitions traditionally used by analysts.

– A comparison of the following measures can also be performed for comparables with recently rated public debt.

Key Industrial Financial Ratios, Long-Term Debt

Investment Grade Non-investment Grade

AAA AA A BBB BB B CCCAAA AA A BBB BB B CCC

EBIT / Interest (x) 23.8 19.5 8.0 4.7 2.5 1.2 0.4

EBITDA / Interest (x) 25.5 24.6 10.2 6.5 3.5 1.9 0.9

FFO / total debt 2 (%) 203% 80% 48% 36% 22% 12% 5%

Free operating cash flow / total debt (%) 128% 44% 25% 17% 8% 3% -2%

Total debt / EBITDA (x) 0.4 0.9 1.6 2.2 3.5 5.3 7.9

Return on capital (%) 28% 27% 18% 13% 11% 9% 3%

Total debt / total debt + equity (%) 12% 28% 38% 43% 54% 76% 114%


Total debt / total debt + equity (%) 12% 28% 38% 43% 54% 76% 114%

Source: Standard and Poor's

“Attack the Big Uglies” – Use CDS or Yield Data

• The current yield of unsecured or secured debt can support the reasonableness of the proposed interest rateThe current yield of unsecured or secured debt can support the reasonableness of the proposed interest rate.

• CDS (“credit default swaps”) can be used to derive the yield of a particular credit in the absence of publicly available or thinly traded debt.

• As indicated in the table below, a comparison to a number of criteria should be performed, including a comparison to members of the comparable group, S&P and Moody's similarly rated debt and the subject company’s industry.

Yield Comparison as of 8/28/09

p g p y y j p y y

8.8%

10.0%

Chartered - Unsecured

New Term Loan

6.4%Moody's Baa Yield

5.9%

0.00% 1.00% 2.00% 3.00% 4.00% 5.00% 6.00% 7.00% 8.00% 9.00% 10.00%

Electronics Sector BBB-B


III.Curriculum Vitae - Dean R. Vomero


Professional Background

Dean R. VomeroDean R. Vomero

Mr. Vomero has 20 years of experience providing financial advisory, interim management and strategic related services. He is a proven leader in distressed situations leading multiple, high level advisory and interim management engagements across numerous industries including retail automotive distribution electric utilities

Dean R. VomeroDean R. VomeroManaging DirectorManaging DirectorMesirow Financial Consulting, LLCMesirow Financial Consulting, LLC

management engagements across numerous industries, including retail, automotive, distribution, electric utilities, resort management, steel, industrial construction, electronics and technology.

Mr. Vomero’s financial advisory career highlights include advising a private equity fund on business plan and operational matters in their potential investment in a $500 million new steel mill; serving as the financial advisor to the special committee of the board for Metalydyne Corporation; co-leading a team serving as a Rule 706 Expert in the bankruptcy of Calpine Corporation in a $10 billion valuation dispute; preparing an expert report for Citigroup Inc in defense of a $250 million lawsuit filed by the Enron Estate; advising the legal team in a large

Cleveland City Center600 Superior Avenue EastCleveland, OH 44114

Telephone: 216-479-6850 Fax: 216-479-6895Email: [email protected]

Citigroup, Inc. in defense of a $250 million lawsuit filed by the Enron Estate; advising the legal team in a large class action shareholder dispute; and serving as financial advisor for the Official Committee of MagnaChip Semiconductor, LLC.

Mr. Vomero has served in numerous interim management roles in distressed situations, including acting as chief executive officer, chief financial officer, chief restructuring officer, chief administrative officer and vice president of strategy to companies such as Coyne Textile Services, Inc., Parts Depot, Inc., Three-Five Systems, Inc., Annie’s Homegrown, Inc. and Epic Resorts, LLC.

EDUCATIONB.S.B.A., John Carroll University

PROFESSIONAL CERTIFICATIONSCertified Public Accountant - Ohio

o eg o , c a d p c eso ts, C

Mr. Vomero has written a number of expert reports on business plan feasibility and valuation, including Tower Automotive, Inc., Collins & Aikman Corp., United Airlines, Northwest Airlines, the United States Steel Company and The Financial Guarantee Insurance Company. He has also testified as an expert witness in matters involving business plan feasibility and valuation. Mr. Vomero has led the sale of a number of distressed businesses, including a substantial minority position in an options, commodities and futures clearing company, a NYSE electronic component manufacturing concern, international operations for a multi-billion dollar computer service

PROFESSIONAL ASSOCIATIONSAmerican Bankruptcy Institute

p g p pcompany and a six resort development/management company.

Mr. Vomero has spoken at numerous forums on various business topics and has authored two articles presented to the American Bankruptcy Institute, Ohio Society of CPA’s, Pennsylvania Society of CPA’s, Pennsylvania Electric Association and Midwest Bankruptcy Institute. He is the author of “How Do You Predict the Financial Future of a Distressed Company” American Bankruptcy Institute December/January 2009 and co-author of “Managing Foreign Employees in Distressed Situations” Journal of Corporate Renewal August 2006.


www.mesirowfinancial.com

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The Mesirow Financial name and logo are registered service marks of Mesirow Financial Holdings, Inc., © 2010, Mesirow Financial Holdings, Inc. All rights reserved. The information contained herein has been


obtained from sources believed to be reliable, but is not necessarily complete and its accuracy cannot be guaranteed. Any opinions expressed are subject to change without notice. It should not be assumed that any recommendations incorporated herein will be profitable or will equal past performance. Any listing of representative clients was not selected based on specific performance criteria but rather lists significant institutional relationships. We do not represent that any client listed specifically approves or disapproves of our advisory services. Securities offered through Mesirow Financial, Inc., member NYSE and SIPC.

Cadwalader, Wickersham & Taft LLPNew York London Charlotte Washington Beijing

Bankruptcy Reorganization Plan Strategies: Debt Reinstatement and Indubitable Equivalentq

Doug Mintzg

Cadwalader, Wickersham & Taft LLP

700 Sixth Street, N.W.

Washington, DC 20001

Tel: +1 202.862.2475

douglas mintz@cwt [email protected]

www.cadwalader.com

Reinstatement – What is it?

De-acceleration of a debtor's prepetition loan, and continuation of the original terms and

maturity of such loan pursuant to a plan bymaturity of such loan, pursuant to a plan, by curing prepetition defaults on the loan and

not otherwise altering the legal, equitable, or contractual rights of the holders of the loan.

Cadwalader, Wickersham & Taft LLP 28

Reinstatement – Generally

• Sections 1123 and 1129 permit a debtor to leave claims unimpaired in a plan.

• To reinstate a prepetition obligation pursuant to section 1124(2), the l t tplan proponent must:

– Cure any prepetition defaults (other than ispo facto defaults);

– Compensate the lender for any damages incurred as a result of bl li th l ti f th bli tireasonable reliance on the acceleration of the obligation;

– Compensate the lender for any actual pecuniary loss arising from the failure to perform a nonmonetary obligation; and

E th t th l d t “ th i lt th l l– Ensure that the plan does not “otherwise alter the legal, equitable, or contractual rights” of the lender.


Reinstatement – Generally (cont‘d)

• Creditors cannot be elevated to better position than their prepetition entitlements. Butner v. United States, 440 U.S. 48, 55 (1979). Th li d l i i 1124(2) i h i i• The policy underlying section 1124(2) is that, in instances where a plan proponent is willing to cure past defaults and perform under the original terms of the agreement, the claimant receives the benefit of its bargain.

• Thus, the claimant is not impaired even if the plan alters the claimant’s rights by preventing the claimant from using a contractual or legal right of acceleration to terminate a valuable contract of the debtorvaluable contract of the debtor.

• Because the claimant of an obligation reinstated pursuant to section 1124(2) is not impaired, the claimant is deemed to accept the plan and is not allowed to vote on the plan.


p p p

Reinstatement – Divergent Perspectives

• The benefits available to a debtor under section 1124(2) are readily apparent – the debtor may reinstate a defaulted debt obligation to its original and now below-market terms.

• From a lender’s perspective, reinstatement of debt at now below-market terms may counter the lender’s expectation that prepetition defaults would provide the opportunity to renegotiate the terms of the debt to align it with prevailingrenegotiate the terms of the debt to align it with prevailing market terms.

• Thus, what may be viewed by a debtor as an excellent opportunity to preserve a lower cost of capital may beopportunity to preserve a lower cost of capital, may be viewed by a lender as the functional equivalent of a coerced loan.


Reinstatement – Effective Challenges

A d t t d b t hi h fil i t t t• As demonstrated by recent high-profile reinstatement cases, lenders seeking to challenge reinstatement often pursue the following lines of attack:

Inc rable defa lts ha e occ rred or ill occ r– Incurable defaults have occurred, or will occur immediately upon reinstatement, which prevent the debtor from meeting the requirements of section 1124(2).

The plan is not feasible because the reorganized debtor– The plan is not feasible because the reorganized debtor would not be able to repay or refinance the reinstated debt upon its maturity.

The plan violates the absolute priority rule by providing a– The plan violates the absolute priority rule by providing a prepetition equity holder with equity in the reorganized debtor before creditors are paid in full (Note – typically seen in cases where the credit agreement to be reinstated


contains restrictions on change of control).

Reinstatement – Recent Cases

• JP Morgan Chase Bank, N.A. v. Charter Communications Operating, LLC (In re Charter Communications), 419 B.R. 221 (Bankr. S.D.N.Y. 2009).

• In re Spectrum Jungle Labs Corp., et al., Case No. 09-50455 (RBK) Bankr. W.D. Tex. Feb. 3, 2009).

• In re Young Broadcasting Inc., 430 B.R. 99 (Bankr. S.D.N.Y. g g , (2010).


Reinstatement – In re Charter Communications

• The proposed plan provided for the conversion of junior debt to equityThe proposed plan provided for the conversion of junior debt to equity and the reinstatement of Charter’s senior secured debt.

• The senior credit agreement contained a change of control provision requiring Paul Allen, former principal of Charter, to retain at least 35% voting power over Charter’s board of directors.

• Accordingly, to avoid triggering a default of this change of control provision, the plan proposed a settlement with Mr. Allen, pursuant to which Mr Allen would retain 35% of the voting power over Charter’swhich Mr. Allen would retain 35% of the voting power over Charter s board and receive approximately $375M in cash and equity.

• Mr. Allen’s willingness to participate in the settlement was pivotal to key sources of value for the Charter estates – (i) the ability to preserve f f ffavorable credit terms of the senior debt by avoiding a breach of the change of control covenants (which likely would have prevented reinstatement) and (ii) preservation of net operating losses.

• In total, the settlement with Mr. Allen (and the ability to reinstate the


In total, the settlement with Mr. Allen (and the ability to reinstate the senior secured debt) stood to save Charter approximately $3.5 billion.

Reinstatement – In re Charter Communications (cont’d)

• Charter’s senior lenders objected to the proposed plan, asserting that reinstatement of the senior debt was impermissible due to several incurable prepetition defaults ( t d f lt h b h f fi i l(e.g. – non-monetary defaults, such as breaches of financial covenants) and an incurable default (e.g., a change of control) that would occur if the plan were implemented.

The Bankruptcy Court overruled the objection on the• The Bankruptcy Court overruled the objection on the grounds that the senior lenders failed to demonstrate the existence of an incurable prepetition default and that no impermissible change of control would occur upon p g pconsummation of the plan.

• Ultimately, the Court confirmed Charter’s proposed plan of reorganization.


Reinstatement – In re Spectrum Jungle Labs Corp.

• Spectrum proposed a plan that reinstated senior secured debt on its original terms, while converting to equity certain of its junior debt.

• The senior lenders opposed reinstatement, arguing, among other things, that the proposed treatment of the junior debt would result in incurable defaults under the senior credit agreement namely violations of provisions governingagreement – namely violations of provisions governing permitted refinancings and changes of control.

• Unlike in Charter, the Spectrum court never ruled on the issue of reinstatement as Spectrum and the lenders settled the issueof reinstatement, as Spectrum and the lenders settled the issue following a five-day contested confirmation hearing.

• Pursuant to the settlement, Spectrum and the senior lenders agreed to leave the senior secured debt in place but with


agreed to leave the senior secured debt in place, but with improved economics for the senior lenders.

Reinstatement – In re Young Broadcasting, Inc.

• Both Young Broadcasting and the official committee of unsecured creditors proposed plans – the debtors and the committee agreed to seek confirmation of the committee plan in the first instance, and to seek confirmation of the debtors’ plan only if the Bankruptcy Courtseek confirmation of the debtors plan only if the Bankruptcy Court denied confirmation of the committee’s plan.

• The debtors’ plan provided for an exchange of all of the senior secured debt for equity, while the committee’s plan proposed to reinstate the

i d d btsenior secured debt.

• The senior credit agreement contained change of control provisions that required Vincent Young, one of the debtors’ founders, to retain control over at least 40% of the board of directors.control over at least 40% of the board of directors.

• Accordingly, to avoid triggering a default of the change of control provisions, the committee plan proposed to grant Mr. Young all of the Class B stock in the reorganized company, which shares would be

titl d t t 40% f th b f t f th di t


entitled to cast over 40% of the number of votes for the directors.

Reinstatement – In re Young Broadcasting, Inc. (cont’d)

• The senior secured lenders objected to the committee’s plan, arguing, among other things, that (i) implementation of the plan would trigger an impermissible change of control under the senior credit agreement, (ii) the plan was not feasible, and (iii) the plan violated the absolute priority rule.

• The Bankruptcy Court held that the committee plan would violate the senior credit agreement change of control provision because, while the Class B stock would have allowed Mr. Young to cast 40% of the votes for directors, Mr. Young would have been able to elect only one of seven directors (e.g.,

i t l 15% f th ti b d)approximately 15% of the entire board).

• Distinguished from Charter on difference in proposed plan – rather than whether change in control was curable default.

• With respect to the senior secured lenders’ second contention, the pBankruptcy Court found that the committee plan was not feasible, as the committee failed to establish that the debtors could satisfy the senior secured debt upon maturity, through either a sale or by refinancing.


Reinstatement – In re Young Broadcasting, Inc. (cont’d)

• In addressing the senior secured lenders’ argument that the committee plan violated the absolute priority rule, the Bankruptcy Court held that the committee failed to meet its b d f i th t th b fit t th d bt fburden of proving that the benefits to the debtors of reinstating the senior secured debt were of a greater value than the equity distributed to Mr. Young under the plan.

Given these deficiencies the Bankruptcy Court denied• Given these deficiencies, the Bankruptcy Court denied confirmation of the committee’s proposed plan and, ultimately, confirmed the plan proposed by the debtors.


Reinstatement – Lessons Learned

• In light of these recent cases, all parties in interest must consider the possibility of reinstatement:

– Distressed companies may elect to file bankruptcy prior to committing an incurable default to preserve their ability to reinstate debt under a plan.incurable default to preserve their ability to reinstate debt under a plan.

– Purchasers of debt that is at risk of being reinstated should be compensated for the risk through a purchase price discount.

– Potential investors seeking to implement a “loan-to-own” strategy with t t di t d d bt t d t d th i t frespect to a distressed company or debtor must understand the impact of

reinstatement when considering which level of the capital structure in which to invest.

– Inclusion of a change of control covenant in loan agreement may effectively prevent involuntary restatementprevent involuntary restatement.

– Junior creditors also should be cognizant of the potential for reinstatement, as it may be the deciding factor between such creditors receiving a recovery under the plan and receiving no recovery at all.


Bankruptcy Reorganization Plan Strategies: Debt Reinstatement And Indubitable Equivalent

Jeffrey W. LevitanMember of the Firm

November 2010

November 17, 201021080334_1/045041

• Previously discussed confirming a plan of reorganization by rendering secured debt “unimpaired”. Unimpaired creditors do not vote.

• I will cover techniques for confirming a plan where the rights of secured creditors are impaired and they vote to reject the plan which are often called “cram up” plansreject the plan, which are often called cram up plans.

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• If a claim is undersecured – i.e.,the debt exceeds the value of collateral – the claim will be bifurcated into a secured claim equal to the value of collateral and an unsecured claim equal to the balance of the debt.

• Only addressing secured claims, i.e., claims that have collateral backing them. There are different rules forcollateral backing them. There are different rules for unsecured creditors.

• To confirm a plan where a class of creditor has voted against the plan it must be “fair and equitable” to theagainst the plan, it must be fair and equitable to the dissenting class.

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• Section 1129(b)(2)(A) of the Bankruptcy Code sets forth three non-exclusive “fair and equitable” requirements for non consensual treatment of secured debt:

i. Secured claimants (a) retain their liens, and (b) receive deferred cash payments with a present value equal to the lesser of the total claim or the value of the collateral, or

ii. Sale of the collateral free and clear of liens by a process which permits the secured creditor to credit bid, or

iii. Providing for the realization by the secured creditors of the “indubitable equivalent” of their claimsindubitable equivalent of their claims.

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• Deferred Cash Payments -1129(b)(2)(A)(i):- In effect, a new secured note is given to the secured creditor

with the same collateral package as existed pre-bankruptcy.p g p p y- The principal amount of the note will be principal plus accrued

and unpaid interest fees and expenses at the contract rate through the effective date of the plan.g p

November 17, 201021080334_1/045045

• To satisfy the requirement that the deferred payments equal the present value of the collateral, courts must fix an interest rate.- The court is not bound by the contract interest rate. Section

1123(a)(5)(H) specifically authorizes a bankruptcy court to change interest rates or other terms in securities, (which is defined to include promissory notes)defined to include promissory notes).

- US Supreme Court discussed post confirmation interest rates in the context of a Chapter 13 plan. Till v. SCS Credit Corporation, 541 U.S. 465 (2004).Corporation, 541 U.S. 465 (2004).

- Court in Till suggested that when selecting an interest rate for deferred payments in Chapter 11, “it might make sense to ask what an efficient market would produce”.

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• Thus, bankruptcy courts rely on expert testimony in fixing the cram up interest rate on deferred secured creditor payments. Most courts will apply a market rate, and if no market exists the court uses the prime rate and adjusts that rate for risk.

• The Bankruptcy Code similarly authorizes modification ofThe Bankruptcy Code similarly authorizes modification of covenants, and debtors will develop a covenant package that will enable its expert to testify that its proposed rate is a market ratemarket rate.

• Best place to start in designing a covenant package is the existing agreement.

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• In today’s low interest rate environment, the ability of a Bankruptcy Court to reset terms to a market rate can be a significant benefit.

• Thus, the deferred cash payment technique can be very useful. But the creditor must retain its liens. If the secured creditor has a lien on all assets, it will impair thecreditor has a lien on all assets, it will impair the reorganized debtors ability to obtain additional working capital or other financing.

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• Indubitable equivalent -1129(b)(2)(A)(iii)- Plan of reorganization proponents can solve this problem by

utilizing the “indubitable equivalent” prong contained in 1129(b)(2)(A)(iii).

- Recent cases confirmed plans using cram up notes, but allowing collateral to be stripped away where the court was satisfied the restructured debt would be repaid.

November 17, 201021080334_1/045049

• Overview of Indubitable Equivalent:- The term derives from a Learned Hand bankruptcy decision

which held that the secured creditor is concerned with principal repayment, and is therefore entitled to be repaid or receive possession of its collateral. If the creditor is deprived of these rights it must receive a substitute of “indubitable equivalence”.

- Thus, to satisfy 1129(b)(2)(A)(iii) the Plan treatment must provide assurance of receipt of the value of the underlying collateral.

November 17, 201021080334_1/045050

- To use the “indubitable equivalent” technique the plan must: (1) protect the creditors principal and (2) provide the present value of the creditors claim. In re TCI 2 Holdings, LLC, 428 B R 117 (B k N J 2010)B.R. 117 (Bankr. N.J. 2010).

- As the 3rd Circuit majority explained in the Philadelphia Newspaper case, citing to Websters Dictionary, that “i d bit bl ” t t ti d bt d“indubitable” means not open to question or doubt and “equivalent” means equal in value. The value that is protected in the secured creditor context is the value of the collateral. Thus a plan that provides a secured creditor with theThus, a plan that provides a secured creditor with the unquestionable value of its collateral can be confirmed under 1129(b)(2)(A)(iii).

November 17, 201021080334_1/045051

• Failed Attempts at Indubitable Equivalent Plans:- A distribution of equity in the reorganized debtor is not the indubitable

equivalent of a secured claim as a matter of law. In re TM Monroe Manor Assoc. Ltd., 140 B.R. 298 (Bankr. N.D. Ga. 1991) (confirmation of plan that distributed limited partnership interests to secured creditor denied.) This is consistent with the legislative history of 1129 which indicates that equity or unsecured debt is not theof 1129 which indicates that equity or unsecured debt is not the indubitable equivalent of a secured claim.

- “Dirt for debt” plans: In the 90’s, Debtors proposed plans which provided that a secured claim would be satisfied by the transfer of a portion of the collateral, valued by the bankruptcy court at the amount of the secured claim. These types of plans are not confirmable. A court valuation is not a substitute for payment or bargained for security In re Arnold & Baker Farms 85 F 3d 1415 (1996)

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security. In re Arnold & Baker Farms, 85 F.3d 1415 (1996).

- “Cows for Cows” plan not indubitable equivalent. Plan proposed to relocate doing business and give back lien on replacement cows. In re Wiersma, 324 B.R. 92 (B.A.P. 9th Cir. 2005) Thi i t t th t l th t b tit t d ll t l2005). This is not to say that a plan that substituted collateral is unconfirmable under all circumstances.

- For indubitable equivalence, cash is king.

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• Successful Indubitable Equivalent Plans:Successful Indubitable Equivalent Plans:- Best used in situations where the creditor is oversecured by a

significant cushion. Debtor can reset interest rates to market and also free up collateral for working capital or other financingfinancing.

- An example of a cram up strategy that allowed junior debt to be restructured while making a portion of senior lenders’ collateral available for working capital is In re DBSD North America Inc 419 B R 179 (Bankr S D N Y 2009)America Inc., 419 B.R. 179 (Bankr. S.D.N.Y. 2009).

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• In that case, the debtor confirmed a plan over the secured creditor’s objection using §1129(b)(2)(A)(iii) of the Code by providing the secured creditor with a restructured first lien facility with a four year term and PIK (payment in kind) interest at 12.5 percent, such that there would be no cash payments until maturity. p y y

• In considering whether the plan should be confirmed, the court analyzed whether the creditor was provided the indubitable equivalent of its claimindubitable equivalent of its claim.

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• The court examined whether the secured creditors’ claim was protected to the same extent it was pre-confirmation, i.e., whether the claim was sufficiently over collateralized. The court answered this question affirmatively as theThe court answered this question affirmatively as the assets securing the debt had an enterprise value six times the obligations due at maturity. (The court compared this to a case where the margin was only 10 percent anda case where the margin was only 10 percent and confirmation was denied).

• The court held that an interest rate of 12.5 percent, which was payable in kind at the debtor’s option was anwas payable in kind at the debtor s option, was an appropriate interest rate for the four year amended facility given the current low interest rates on treasury securities

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• Other Indubitable Equivalent Structures:- Negative amortization Plan confirmed. In re Good, 413 B.R.

552 (Bankr. E.D. Tex 2009)- Plan confirmed that provided creditor with substitute collateral.

In re Elm Green Joint Venture, 93 B.R. 105 (Bankr. W.D. Tex 1988).

- A sale of collateral without the right to credit bid has been held to satisfy the indubitable equivalent requirement.

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• Sale of collateral without a credit bid is the indubitable equivalent of the secured claim.- Credit bidding allows the secured creditor to bid its debt during g g

the sale of its collateral, offsetting its claim against the purchase price.

- Two circuit courts held that subsection 1129(b)(2)(A)(iii) ( )( )( )( )permits a sale without credit bidding, rejecting arguments that subsection (ii) which requires credit bidding provides the exclusive sale procedures. In re Philadelphia Newspapers LLC, 599 F.3d 298 (3d Cir. 2010) (2-1 decision); In re Pacific Lumber Co., 584 F.3d 229 (5th Cir. 2009).

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• Recently, an Illinois bankruptcy court entered an order refusing to confirm a plan that contemplated a sale of collateral without a credit bid following the dissent in the Philadelphia Newspapers case. Because the issue is of such importance and attention the appeal has been certified for a direct appeal to the Seventh Circuit, In re ppRiver Road Hotel Partners, case no. 09-B 30029 (Bankr. N.D. Ill. 2010).

• The issue of credit bidding under a Plan and the contoursThe issue of credit bidding under a Plan, and the contours of the “indubitable equivalent” standard may be determined by the US Supreme Court if there is a split in the Circuits.

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Bankruptcy Reorganization Plan Strategies: Debt Reinstatement And Indubitable Equivalent

Jeffre W Le itanJeffrey W. LevitanMember of the [email protected]

November 2010

The information provided in this slide presentation is not, is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does itnecessarily reflect the opinions of the firm, our lawyers or our clients. No client-lawyer relationship between you and the firm is or may be created by your access to or use of this presentation or anyinformation contained on them Rather the content is intended as a general overview of the subject matter covered Proskauer Rose LLP (Proskauer) is not obligated to provide updates on the

November 17, 201021080334_1/045060

information contained on them. Rather, the content is intended as a general overview of the subject matter covered. Proskauer Rose LLP (Proskauer) is not obligated to provide updates on theinformation presented herein. Those viewing this presentation are encouraged to seek direct counsel on legal questions.

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