The CRPA – An Effective Aid in Cross-Border Restructurings?

The recent case of SK Global

(now called “SK Networks”)

Edward Cairns – White & Case LLP

12th November 2003

The CRPA Process

What is it?

• The CRPA is an “out of court” restructuring process available in Korea pursuant to a legislative

framework (i.e. the Corporate Restructuring Promotion Act of 14 August 2001)

• The legislation is new – effective from 15 September 2001

• Has a limited lifespan – it is due to expire on 31 December 2005

• Companies to have debt owing of KRW50+ billion (about USD40m)

• Covers Korean financial institutions, including branches of foreign banks in Korea

• The largest creditor bank is responsible for leading the restructuring

• A 3 month moratorium is imposed on CRPA creditors (extendable for one month only)

• Lead Bank determines if a restructuring is appropriate, and has responsibility for developing the

restructuring plan

• Restructuring plan requires 75% approval in value of CRPA creditors to be passed – dissenting

CRPA creditors can “opt out” and seek a cash buy-out as an alternative

SK GLOBAL

A brief corporate history…..

• SK Global was founded in 1953 as Sunkyong Textiles, a producer of woven textiles

• In 1980, Yukong Limited (formerly known as Korea Oil Corporation) was acquired – now known as SK Corporation (“SK Corp”)

• In 1991, Daehan Telecom Limited was founded and merged with Korea Mobile Telecom in 1997 to become SK Telecom – telecommunications became a key focus

• In 1998, the Sunkyong Group was “re-branded” and became the SK Group, South Korea’s 4 th largest

chaebol

• In 1999, in a reorganisation of the Group, SK Corp became the effective holding Co.

• The SK Group was involved in over 2,000 products from textiles and clothing to petrochemicals, telecommunications and various commodities

• SK Global’s main business activities were as a Global Trading Co. and Energy Sales. Heavily dependent on trading with its affiliates

• SK Global has now changed its name to SK Networks and will focus on the provision of telecommunications products (primarily fixed line services for SK Telecom)

The Warning Signs

The Chairman of SK Global, Son Kil-seung, is summonsed by prosecutors with respect to their investigation

Early March

Hana Bank calls meeting under Corporate Restructuring Promotion Act (“CRPA”) at the request of the FSS to implement a standstill

12 March

Korean Banks vote to commence CRPA 3 month standstill period commences, effective from 11/3/03

19 March

Accounting irregularities announced totalling KRW1,559 billion (USD1.3 billion)

11 March

Commencement of investigation by Seoul District Prosecutors’ Office

Arrest of the Chairman of SK Corp, Chey Tae-won, with respect to suspicious stock deals

February 2003

November 2002 SK Global fined for irregular option trades with JP Morgan

SK Global share price fell 40%Late February/Early March

Impact of the Asian Financial Crisis

• Reforms were introduced emphasising transparency and focus on core businesses – the chaebol were required to reduce cross-holdings and support for unprofitable affiliates

• The SK Group was not as diversified as other chaebol that collapsed such as Daewoo and Hyundai but it did not learn from the mistakes of these groups

• The SK Group was to reduce the affiliates from 45 to 10 by Dec 1999 – it retained 41 and by Dec 2002 it had 62 as it expanded and diversified rather than focused on core businesses

• The Government failed to monitor the activities of the chaebol as the Korean economy appeared to recover

• Many examples of SK Group raising capital and using funds to support, maintain or strengthen control over other affiliates – SK Global was a de facto “waste bin”

The Balance Sheet

Balance Sheet Position – Published Consolidated

• SK Global (unconsolidated) 2002 balance sheet was amended following due diligence performed after 11 March 2003 (commencement date of CRPA) as follows:

2001 (USDm) 2002 (USDm)

Current Assets 1,995 1,447

Non Current Assets 3,419 3,089

Total Assets 5,414 4,536

Current Liabilities 3,817 3,559

Non Current Liabilities 1,049 1,246

Total Liabilities 4,866 4,805

Equity (Consolidated) 548 (269)

USDm

Equity before due diligence (133)

Net due diligence adjustments (3,522)

Equity after due diligence (3,655)

The Debt Picture

Level of Debt

• The extent of financial institution debt as at 11 March 2003 can be shown as follows:

• Virtually all subsidiary debt was subject to guarantees from the parent

• It is significant that the majority of Foreign Bank debt was to offshore subsidiaries and not subject to the CRPA process in Korea

• Korean Banks held the balance of debt in the Subsidiaries

Korean Banks and Institutions

No. 93USDm

Foreign Banks

No.48

USDm

SK Global (parent) 4,429.1 96.3

Subsidiaries (based outside Korea)

952.2 803.3

Total 5,381.3

85.7%

899.6

14.3%

Early Stages of the Restructure

The Tokyo Meeting

Foreign Banks met on 8 April 2003 in Tokyo

• SKG requested an informal stand still whilst the restructuring plan was prepared

• A Foreign Bank Steering Committee (“FBSC”) was formed, representing 9 banks – Standard Chartered Bank was appointed as the lead bank

• Foreign Banks were promised a world class restructuring based on international standards with full transparency and equality of treatment for creditors in similar classes

Actions of the FBSC

• FBSC protected the SKG Group from hostile actions taken by some banks to preserve the status quo for the benefit of all Foreign Banks

• FBSC commenced a dialogue with Hana Bank and its advisors

• Ferrier Hodgson was engaged as financial advisor to the FBSC

• White & Case was engaged as legal counsel to the FBSC

Early Stages of the Restructure

The Samil Report

• Samil Accounting Corporation (“Samil”) was engaged by SKG / Hana to prepare the following:

A Due Diligence Report and liquidation analysis

Document the restructuring plan

Prepare an analysis of SKG’s new Business Plan

• Foreign Banks were put into a holding pattern pending agreeing to a restructuring plan with Korean Banks

• At this stage, the FBSC maintained the position that they required payment of 100% of their debt or a full forensic review to explain the losses

• Whilst these reports and analyses satisfied the terms of the mandate set by the domestic creditors, they did not provide the Foreign Banks with adequate transparency

The CRPA Plan

Negotiation of the CRPA Plan

• Hana Bank focused on negotiating the CRPA Plan for the Korean creditors

• Hana Bank had to satisfy the Korean Banks have SK Corp contribute to the plan and provide SK Global with a viable future

SK Corp

• SK Corp was the effective holding company of SK Global and was owed about KRW1.5 trillion (USD1.25 bn) with respect to trading between the two entities

• But no cross guarantees

• SK Corp required to swap a debt for equity – the key issues faced were:

SK Corp wanted to keep the swap amount low

Hana Bank needed the swap high to improve SK Global’s balance sheet and reduce the haircut for the Korean Banks

Pressure from Korean Banks for an acceptable restructuring plan

The CRPA Plan

• SK Corp was under pressure from shareholders, particularly Sovereign Asset Management (“SAM”) with a 14.99% holding

• SK Corp also under pressure from trade unions and other interest groups

• SAM / foreign investors opposed any contribution by SK Corp to bailout SK Global

• Negotiations pushed the entire restructure to the brink of Court Receivership in early June

What Was Agreed?

• At the 11th hour SK Corp agreed to a debt for equity swap of KRW850 billion (SAM continues to oppose)

• Korean Banks agreed to a combination of the following:

A Cash Buy Out (“CBO”) at 30%

3 types of debt for equity swaps – ” waterfall” depending on the extent of CBO taken

Residual debt to be paid after 31/12/07 subject to available cash

• The plan was dependent on reaching satisfactory agreement with the Foreign Banks

The CRPA Plan

The Effect on SKG’s Balance Sheet

* Subject to compromise of guaranteed debt (will increase the surplus)

• Total CRPA debt is treated as follows:

44% is swapped for equity

33% is applied to the CBO

23% of debt remains on the balance sheet (subject to restrictions on repayment)

(Deficiency)/Surplus KRWb

Deficiency per Due Diligence (4,387)

Common stock debt for equity swap – SK Corp 850

Common stock debt for equity swap – CRPA creditors 850

Profit on CBO i.e. after payment of 30% of debt applied 592

Redeemable Preference Shares (cap of KRW1,000bn) 1,000

Mandatory Convertible Bonds (cap of KRW1,065bn) 1,065

Net Profit for 2003 71

Adjusted Surplus (i.e. Net Assets)* 41

Documenting the Offer

• After the CRPA Plan was agreed, attention turned to dealing with the Foreign Banks

• After several weeks of sometimes difficult negotiations, a deal was struck

• Basic term sheet within 12 hours of negotiated deal

• 3 weeks then spent negotiating a detailed term sheet - points were very difficult to resolve

• Detailed agreements drafted

• The timeline required by the CRPA Plan was unrealistic and resulted in:

The first draft of the Exchange Agreement and related documents being provided 30 August

Drafts still materially incomplete and with term sheet issues outstanding

All 48 Foreign Banks being required to sign the documents by mid-September

Substantial work was performed in a very short period of time to finalise the documents and present them to the Foreign Banks for signing

But signing was achieved as required in mid-September

The Outcome

The Foreign Banks achieved…..

• A fully secured return of 48% by way of:

Promissory Notes (43%) repayable in full by end 2004

Bonds (5%) repayable in early 2008

• 115% collateral cover over listed shares / cash

• Warrants to enable participation in equity upside

• Acceptance by 95.8% of Foreign Banks – only 2 Foreign Banks chose not to participate

• Closing as planned at end October 2003

• SK Networks has a viable future (dependent on trading with its affiliates)

• The alternative was Court Receivership and Worldwide insolvency proceedings - yielding less than 20 cents and could have taken years.

Court Receivership

• The prospect of Court Receivership was real a possibility

• The Court Receivership was to be conducted as follows:

a Pre-Packaged proposal would be presented to the Court incorporating the majority of the terms of the CRPA Plan

It would be supervised by the Court and therefore the CBO was not certain (in order to conserve SKG’s cash/assets)

It would pay only 9% over 9 years on the shortfall of guarantee claims interest free (subject to Court approval) – making the guarantees worthless

The Verdict?

Was the CRPA an effective aid in achieving the restructuring of SK Global?

“Yes” – but the dynamics in this case were very singular

If this legislation is renewed on expiry with more flexibility built in it could be very useful indeed – but its inherent limitations and rigidity will handicap its future usefulness to Korean companies with large overseas borrowings