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Spain’s Abengoa Wins Chapter 15 Bankruptcy Court Protection

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Bankruptcy Judge Kevin Carey yesterday granted chapter 15 protection to Spain’s Abengoa SA over the objections of a group insurance companies who claimed the energy company’s talks to restructure billions in debt was unfair to U.S. creditors, the Wall Street Journal reported today. Recognition of the Spanish proceeding locks in a pre-insolvency standstill agreement Abengoa struck with key creditors that gives it more time — through Oct. 28 — to continue negotiations on restructuring its debts, which court papers show total more than €14.6 billion ($16.48 billion). A group of insurance companies that has issued some $250 million in surety bonds tied to Abengoa’s construction of U.S. power plants had balked at the U.S. court’s recognition of the Spanish proceeding. The companies — including Liberty Mutual Insurance Co., AIG and Zurich American Insurance Co. — called the Spanish proceeding “manifestly contrary” to U.S. public policy because it forced them to abide by a standstill agreement without due process. Judge Carey said the lawyers for the insurers were arguing that the Spanish restructuring proceedings should only be recognized if they were identical to a U.S. bankruptcy proceeding. “They don’t have to be identical to a U.S. bankruptcy proceeding,” he said in his ruling from the bench. Read more. (Subscription required.) 

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Sports Authority Stymied in Challenge to Bankruptcy Financing

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Sports Authority’s creditors battled the failing retailer and its lenders to a standstill over bankruptcy financing that critics said offered no funding for a last-ditch effort to save the company, the Wall Street Journal reported today. Bankruptcy Judge Mary Walrath on Tuesday ordered changes to the loan package. If lenders don’t agree to the adjustments, “then I’m prepared to convert the case today,” Judge Walrath said, meaning she would toss Sports Authority out of the relative comfort of chapter 11 bankruptcy and into a chapter 7 liquidation, where a trustee would make the crucial decisions. Lenders are looking over the revised loan deal, which will be taken up again next week at a hearing in the U.S. Bankruptcy Court in Wilmington, Del. Read more

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Analysis: Goldman, Morgan Stanley Seek to Plug Holes After Split Verdict on 'Living Wills'

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April 28, 2016

 
ABI Bankruptcy Brief
 
NEWS AND ANALYSIS

Analysis: Goldman, Morgan Stanley Seek to Plug Holes After Split Verdict on 'Living Wills'

When U.S. regulators this month announced their verdicts on eight big banks' "livings wills" — blueprints showing how the institutions would fail without needing a bailout — officials promised more clarity in a process that the industry has criticized as opaque. The government did release more information than in the past about decisions that affect banks' business plans and balance sheets. But the fact that the two agencies involved issued clashing verdicts on a pair of large Wall Street investment banks, Goldman Sachs Group Inc. and Morgan Stanley, stoked confusion and added to calls for the government to be even more transparent in next year's verdicts, according to an analysis in today's Wall Street Journal. Both Goldman and Morgan Stanley said this month they are committed to addressing regulators' concerns, and all the banks are set to meet with the two agencies, the Federal Reserve and the Federal Deposit Insurance Corp., in the coming weeks. While the Fed and FDIC spoke with one voice to six of the eight firms they assessed — failing five and passing one — their disagreement on Goldman and Morgan Stanley came without a clear explanation. The Fed failed Morgan Stanley, but the FDIC didn't. The opposite was true for Goldman. Because the regulators disagreed on Goldman and Morgan Stanley, the firms avoided the "failing" label — and the potential sanctions that come with it, such as higher capital requirements — but the firms still have to take action on the shortcomings that regulators perceived. The opposing verdicts are a reminder of the subjective nature of regulators' decisions and the agencies' continuing struggle to communicate their expectations to the industry.

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Analysis: Buyouts Saddle Struggling Retailers with Debts They Can't Repay

Sports Authority Inc. learned the hard way that buyout debt can be a drag as the bankrupt company was loaded with at least $643 million in debt, a hangover from its $1.4 billion leveraged buyout in 2006 by investors led by Leonard Green & Partners, Bloomberg News reported today. Other retailers filing recently for bankruptcy include Deb Shops Inc., a 2007 buyout by Thomas H. Lee Equity Partners Inc., and Dots Stores Inc., a 2011 purchase by Irving Place Capital. Also headed for the debt wall are Claire's Stores Inc., bought by Apollo Global Management in 2007, and Gymboree Corp., a 2010 Bain Capital Partners acquisition. Some in the industry see high levels of indebtedness as a new normal. Many retailers that are struggling now have been slowing down for years, said Sandeep Mathrani, chief executive officer of mall-owner General Growth Properties Inc. In the fast-evolving world of retail where the one constant is the need for investment, retailers laboring under heavy debt are at a disadvantage. "Doing it right is very expensive," said Raya Sokolyanska, an analyst with Moody’s Investor Service in New York. "Limited financial flexibility has been a reason why a lot of these retailers haven’t been able to fight back and position themselves correctly for growth." With the rise of smartphones, shoppers can compare prices in an instant. While competitors such as Dick’s Sporting Goods Inc. were sprucing up stores and building their online businesses, Sports Authority was falling behind, said Ryan Severino, senior economist at REIS Inc. Charles Tatelbaum, a bankruptcy attorney with Tripp Scott in Fort Lauderdale, Fla., said he expects companies acquired through leveraged buyouts to be well represented in the next round of retail bankruptcies because a firm with high debt is running in a three-legged race.

 

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Texas, Oklahoma, Wyoming: Oil Woes Start to Hit Hard

In states from Oklahoma and Texas to North Dakota and Wyoming, rising unemployment in the energy sector is pushing up loan delinquencies and raising the risk of new losses for banks, the Wall Street Journal reported yesterday. Wells Fargo & Co. this month reported an increase in borrowers falling behind on payments in areas including Houston and parts of Alaska. JPMorgan Chase & Co. said that auto-loan delinquency rates picked up in some energy-related markets. Overall, energy-dependent states are posting delinquency rates that in many cases exceed the national average, according to data prepared for the Wall Street Journal by credit bureau TransUnion. Nearly 119,600 oil and gas jobs nationwide have been eliminated — 22 percent of the total — since September 2014, according to the Federal Reserve Bank of Dallas. The price of U.S.-traded oil, while on the rise this year, has dropped 28 percent since June. Some analysts have warned that persistent crude oversupply could prevent further price gains. (Subscription required.)

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White House Steps Up Effort to Reform Student Loan Servicing to Stave Off Rising Defaults

The White House unveiled a series of initiatives today to improve the way the government collects payments on education loans, at a time when defaults are rising, the Washington Post reported today. Government agencies are working together to provide the 43 million Americans who carry $1.3 trillion in student debt more transparent information about the terms of their loans, account features and consumer protections. They also are asking colleges, local governments and employers to help get the word out about repayment plans, especially those that cap monthly payments to a percentage of earnings, known as income-driven repayment plans. The Obama administration has given Americans more options for repaying their student debt so they can avoid default, expanding income-driven plans that require little to no money from people in dire straits. Direct outreach by the Department of Education and marketing campaigns has led to higher enrollment, yet the amount of people severely behind on their debt remains stubbornly high. To reach as large an audience as possible, the CFPB is releasing its own “Payback Playbook,” a guide to help borrowers determine the best repayment plans for them. The playbook will be available to borrowers included in their monthly bills, in email communications from servicers and when they log into their student loan accounts. The bureau is also working to develop guidance to make sure that servicers provide fair, consistent and accurate data to credit bureaus.

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In related news, more law firms are adopting initiatives to help lawyers refinance their law school loans at reduced rates, American Lawyer reported yesterday. Last year, Latham & Watkins spearheaded a program with First Republic Bank Co. that allows associates with student loans exceeding $50,000 to refinance at rates as low as 2.5 percent. Since January, at least three other Am Law 100 firms have set up similar programs with the bank. The latest to join the club is Kirkland & Ellis, which launched a program this week that allows associates paying between 6.5 and 8 percent interest on their loans to refinance with First Republic.

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Opponents of New Retirement Rule Renew Efforts to Kill It

Opponents of a new rule on retirement advice are regrouping to mount a fresh attack, as their initial optimism has given way to the realization of the regulation's deep and long-lasting impact on the financial industry, the Wall Street Journal reported today. Three weeks after the Labor Department unveiled a tougher standard for brokers working on retirement accounts, the House is expected to pass a resolution tomorrow to scrap it. Trade groups, after keeping relatively quiet as they sought to digest the regulation known as the fiduciary rule, have come out strongly in support of Republican-led efforts aimed at preventing it from taking effect. Any legislative attempt to block the new rule has a slim chance of success. The White House issued a statement yesterday saying that the president would veto the bill. Still, the lawmakers' swift action and the unified front of industry groups show that opposition to the rule remains strong. Reflecting continued industry concerns, eight big trade groups had jointly sent a letter to House lawmakers yesterday timed to coincide with the vote, urging them to kill the new rule. (Subscription required.)

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Latest ABI Podcast Looks at the Challenges in Representing Creditors' Committees

In a new ABI Podcast, ABI Resident Scholar Melissa Jacoby talks with Mark E. Felger of Cozen O'Connor (Wilmington, Del.) and Paul Hage of Jaffe Raitt Heuer & Weiss (Southfield, Mich.) about the challenges that professionals face when representing creditors' committees. Felger and Hage are co-authors of ABI's Representing the Creditors' Committee: A Guide for Practitioners, available for purchase in ABI's Bookstore.

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BLOG EXCHANGE

New on ABI's Bankruptcy Blog Exchange: Where Is OCC in Court Battle over State Usury Limits?

The potentially wide-ranging effects of an appeals court decision in Midland Funding v. Madden could deal a serious blow to preemption under the National Bank Act, according to a recent blog post.

To read more on this blog and all others on the ABI Blog Exchange, please click here.

 

 
 
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Caesars Makes Settlement Offer to Bondholder Group

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Caesars Entertainment Corp. and its bankrupt operating unit have offered an olive branch to a group of bondholders in a bid to move the unit’s chapter 11 restructuring forward, the Wall Street Journal reported today. Caesars Entertainment Operating Co. says that it and its publicly traded parent, which isn’t in bankruptcy, have offered 85 cents on the dollar to the holders of $502 million in bond debt guaranteed by the CEOC unit’s subsidiaries, the casino companies said yesterday. The settlement offer, which isn’t binding and is subject to further negotiation, would settle a skirmish between the bondholder group and CEOC’s senior creditors. The settlement offer comes as CEOC works to achieve broad creditor support for its $18 billion restructuring, which has been marked by numerous creditor battles.

Sports Authority Abandons Hope of Reorganizing and Opts for Liquidation

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Sports Authority has abandoned hope of reorganizing and exiting bankruptcy and instead will count on buyers to save parts of its sprawling retail chain, company lawyer Robert Klyman told a judge yesterday, the Wall Street Journal reported. Loaded with more than $1.1 billion in debt, Sports Authority filed for bankruptcy protection in March, saying that it would attempt to trim its operations and restructure, while looking for buyers as an alternate path. Bankruptcy-financing arrangements that won interim approval earlier in the chapter 11 case have allowed lenders to sweep $109 million to pay down their loans, according to the official committee of Sports Authority’s unsecured creditors. That’s been a sore spot for landlords, who believe the timing of the bankruptcy filing, one day after the March rent was due, “had the effect of granting Sports Authority an unsecured interest-free loan of $27 million,” according to David Pollack, lawyer for many of the retailer’s landlords. Sports Authority typically paid about $27 million per month in rent. By filing March 2, the retailer was able to avoid paying the March rent until the end of its case. If there isn’t enough money when Sports Authority’s sales are over, landlords whose premises hosted bankruptcy sales that benefited banks could be forced to take a haircut. Read more. (Subscription required.) 

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West Virginia Regulator Says Alpha Natural Asset Sale May Jeopardize Cleanup

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West Virginia's environmental authority opposes a plan by bankrupt coal miner Alpha Natural Resources to sell core assets to its hedge fund lenders, saying in a court filing that it could undermine a $1 billion cleanup, Reuters reported on Friday. A string of bankruptcy filings by major U.S. coal companies, including Alpha last August, has raised concern among environmental agencies and the federal government that future mine cleanups may be at risk. The West Virginia Department of Environmental Protection said Alpha's proposed sale of certain mines would strip the company of its "crown jewels," giving it little hope of obtaining its required bonding or performing its cleanup obligations, according to an April 15 filing with the bankruptcy court. The company has agreed to sell various assets to its first-lien lenders, which will pay by forgiving what they are owed, according to court documents. Alpha is seeking court approval of the sale in May and approval for its bankruptcy exit plan in June.

Swift Energy Emerges from Bankruptcy

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Oil producer Swift Energy Co. said today that it emerged from Chapter 11 bankruptcy, less than four months after filing for creditor protection, Reuters reported. Swift filed for bankruptcy on Dec. 31, joining about 40 other energy companies that entered bankruptcy in 2015 as oil prices plunged. The company entered bankruptcy with an agreement with more than 60 percent of the holders of its unsecured bonds. Swift had said that it planned to exchange those bonds for 96 percent of its stock when it exited bankruptcy. Its shareholders were to get 4 percent of its stock. The company said it has completed its financial reorganization, which was confirmed by the U.S. Bankruptcy Court for the District of Delaware on March 31. Read more

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Judge Delays SunEdison Request for Independent Investigation

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Bankruptcy Judge Stuart M. Bernstein on Friday pushed back an unusual request by SunEdison Inc., a solar-power giant that landed in bankruptcy a day ago, to launch an independent investigation into its dramatic reversal of fortunes, the Wall Street Journal reported on Saturday. Judge Bernstein said that creditors needed more time to organize before he would consider appointing an independent examiner. The U.S. Justice Department and the Securities and Exchange Commission are investigating whether SunEdison management misled the public as the company began to struggle. The examiner request has already drawn fire from bondholders, wary of any efforts by SunEdison to set the scope, cost and duration of the investigation so early in the case. Though the judge shelved SunEdison’s examiner request for now, he approved a number of other requests on Friday aimed at easing the company’s transition into bankruptcy and limiting disruptions while it works out a plan to cut its multibillion debt load. The judge said SunEdison could borrow $90 million under a $300 million bankruptcy loan and signed off on SunEdison’s other requests to ease its transition into bankruptcy while it works out a plan to cut its multibillion debt load.

New Jersey Abortion Clinic Files for Bankruptcy

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A New Jersey abortion clinic has filed for bankruptcy after losing a legal battle with several former employees who said they were fired after becoming pregnant, the Wall Street Journal reported today. Pilgrim Medical Center Inc. filed for chapter 11 protection after a judge awarded more than $1 million to three ex-workers who sued the clinic for discrimination. The legal award against Pilgrim Medical Center, which is based in Montclair and employs 22 people, is worth more than half of the $1.8 million in revenue the clinic took in last year, according to documents filed in U.S. Bankruptcy Court in Newark. The clinic is appealing the judgment. The former employees — two medical assistants and an administrative worker — sued in the fall of 2013, accusing supervising physician and clinic owner Nicholas Campanella of punishing them for taking or requesting maternity leave.

New Gulf Wins Approval of Its Reorganization Plan

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Bankruptcy Judge Brendan L. Shannon signed off on New Gulf Resources LLC's restructuring plan, allowing the troubled energy company to wipe roughly $590 million of debt from its balance sheet and to move closer to exiting chapter 11 protection, Dow Jones Daily Bankruptcy Review reported yesterday. The reorganization plan will allow New Gulf, which sought chapter 11 protection late last year, to convert about $590 million in secured and unsecured bonds into equity. New Gulf will issue $135.25 million in new first-lien bonds to its creditors, and some of the new debt will be used to pay down the company's $75 million bankruptcy loan. That loan, from a group of New Gulf's second-lien bondholders, was used to fund the costs of the restructuring and to repay $38 million owed to senior lender MidFirst Bank. The chapter 11 plan will leave New Gulf in the hands of its two bondholder groups. Second-lien bondholders, owed $365 million in principal, will receive about 87.5 percent of New Gulf's new equity and the holders of subordinated paid-in-kind bonds, owed $162 million, will take a roughly 12.5 percent stake. Read more. (Subscription required.) 

Get a better understanding of what happens when an oil, gas or other natural resources company goes bankrupt. Order your copy of ABI’s revised and expanded When Gushers Go Dry: The Essentials of Oil & Gas Bankruptcy, Second Edition