Second Loan RatesThe second loan instalments
That bankruptcy blogs section will address this part of the verdict, while the coming blogs will address the Second District verdicts, in which the Bankruptcy Court and District Court will confirm that secondary promissory note overrides subordinate promissory note and that older promissory note holders are not eligible for a make-whole bonus.
Death traps can be an efficient way of promoting the endorsement of a reorganisation scheme, particularly in conjunction with the cordown rules of insolvency law. It can be simple: a script includes a borrower or other planning sponsors suggesting a reorganisation scheme that offers two options to a group of secure covenants.
Policy One - Life: Choose the policy and get suggested treatments that the assured believers can but may not like to use. Policy Two - Death: voting against the scheme and getting stuffed - that is, getting the value of their collateralised debt in delayed liquidation over several years - often an uncomfortable policy choice for collateralised providers of credit who want their participation in a particular event to end so that they can use their money and resources more efficiently elsewhere.
Also, as if deaths were not enough, a number of cases resulting from the Supreme Court ruling in Till have resulted in the emergence in some jurisdictions ofthe extra constraint of an interest penalty: these postponed liquid funds repayments (structured as collateralised redemption paper) can be conceived at an interest level that, instead of mirroring predominant interest rates in the markets, is a much lower domestic base lending interest with a moderate upwards revision of credit risks - usually much lower than what free float creditors will order.
Mementive obligors and their second line note holders used this "death trap" technology to force their seniors to adopt the suggested reorganisation plan: if the seniors agreed to the suggested reorganisation scheme, they would get a full amount in the form of liquid assets upon approval of the scheme, minus a total amount of approximately $200 million to which they thought they were contractual due.
Go against the scheme and get redemption papers (replacement notes) corresponding to the guaranteed exposure (again without the entire exposure), which is disbursed over several years at an interest below the interest rates of the relevant markets (or till). Significantly, the gap was not negligible - seniors were arguing that the gap between the interest rates their substitutes got under Till, and the 5-6+% that an efficiently producing exchange would generate, was up to $150 million in interest loss over the lifetime of the substitutes.
Momentive' s seniors elected Momentive' s life and cast their vote against the scheme, but the bankruptcy court upheld the scheme. And as the seniors' lending notes were predicting, their redemption security was destroyed in the open and immediately quoted at 93 cent after issuance, despite being a leader in Momentive's newly organized equity base.
New York Southern District Court upheld the bankruptcy court's endorsement of Momentive's reorganisation scheme and found, among other things, that it had to comply with the Supreme Court's Till ruling, which interpret it as demanding that a "formula" interest charge be imposed on redemption securities (the domestic base interest plus an upper 1-3% premium increase).
The District Court thus refused to accept Till's interpretations adopted in some other juries, in particular the Sixth Circuit, which interpret the Till Supreme Court's ruling to enable the courts in receivership to establish whether there is an effective exits finance regime in Section 11 of the Cases.
Where there is an effective internal or external CM, a liquidation tribunal may fix the interest rates to be applied to redemption securities at a normal commercial interest rates, and only if this investigation is not successful may it apply the till value 'formula'. According to the court's verdict, it seemed likely that secure creditors in the second constituency - the financial heartland - would be trapped for the time being at a till interest rates on cramdown papers, giving borrowers and planning patrons a powerful tool for their strategical armoury while at the same time raising the risks for desperate investor.
Momentive' s senior Lieen Holders filed an appeal against the District Court's ruling at the Second Circuit, claiming that the approval of Momentive's reorganisation scheme was not just and just as requested in Section 1129(b) of the Bankruptcy Code (the "cramdown" provision) because the interest rates on their exchangeable bonds were too low. Following an argumentation in the second constituency in November 2016, the results seemed to some viewers, on the whole, more appropriate to confirm the local court's ruling.
However, in its most recent judgment, the Second Constituency did not agree and found that the Bankruptcy Court had made a mistake in calculating the interest rates for the replacements obtained from seniors. County 2 referred the matter back to the Bankruptcy Court to examine whether an effective exchange price could be determined and, if so, to applying it to the exchange certificates.
Second Circle's verdict revolved around whether the Till Supreme Tribunal had made a final conclusion as to whether the "formula" sentence is generally necessary in Section 11 cases. When it found that the Supreme Justice had not made a final declaration to that effect, the Second Ward decided to uphold the Sixth Ward in the interpretation of note 14 of the Till judgment in order to imply that effective commercial interest rates on cram downs cannot be ignored in Section 11 cases and that an interest rat which is manifestly admissible to demanding commercial operators is to be preferred to a form of improvisation by a tribunal.
For example, a market is'efficient' if it'offers a loan with a maturity, volume and security similar to that of a compulsory loan under the crackdown will. It is interesting to note that the momentum borrowers had obtained suggestions for exactly these borrowings if the senior lending note holders agreed to adopt the scheme which would have allowed the senior lending note holders to make a liquid settlement in the form of a fixed amount on the date of entry into force of the scheme.
This second circuit positively followed the sixth circuit in In re American HomePatient, Inc. 2 ) and chose the two-stage Sixth Circuit as the best approximation of insolvency law to the pertinent legal precedent. 2 ). Under the two-stage approaches, it is necessary to establish whether there is an effective exits credit facility in Section 11 procedures and to calculate the interest rates if the exits credit facility does so, otherwise the till-formulated interest is used.
Momentive' borrowers challenged the complaint of the older Viennese note holders to the District Court because the complaint was reasonably controversial - since the reorganisation scheme had been endorsed, there was popular belief that there was no way to decipher the eggs. However, the second circuit did not agree and found that no further changes to the scheme were necessary other than the adjustment of the interest rates on the substitute bonds.
The maximum amount this could entail is $32 million in extra yearly debt payment by borrowers to their Senior Notes holders over several years. The Second Circuit's determination that its decision would be unlikely to disband the scheme or jeopardise the creation of the borrowers, and acknowledging that the Senior Liene note holders had submitted to the Bankruptcy Court experts' statements that there was an effective exits funding pool (and that the borrowers would have searched for and obtained 5-6+% lump-sum bids from third-party creditors if the Senior Lien note holders agreed to the scheme),
The bankruptcy court now released from Till appears to have an effective internal structure and will adapt the interest rates on the substitute bonds accordingly - a gain for secure lenders. Second constituency did not come to a finding regarding the result of this investigation, so we will be following the forthcoming trial with interest and looking for possible Supreme Court appeal.
Momentive' s reorganisation scheme was confirmed in all other aspects in the second round of voting, confirming the Bankruptcy Court's order of approval and the District Court's decisions confirming the precedence of second-class promissory note over junior promissory note and refusing to grant the make-whole bonus to the investors of the older promissory note.