Morrison Foerster’s MoFo Restructuring Round-Up provides our analysis of the statutory, regulatory, legal and business-related developments in the insolvency and restructuring world. Our goal is to provide timely, helpful, insightful and digestible content that will help you keep abreast of the trends that are shaping the industry.<h2>MORRISON FOERSTER’S BUSINESS RESTRUCTURING & INSOLVENCY GROUP</h2>We counsel clients around the globe on corporate distress. We advise debtors, creditors, creditors’ committees, ad hoc committees, secured lenders, and specialist investors and are confident in advising on significant multi-jurisdictional cases. The breadth of our practice allows us to find solutions for a broad range of participants in distressed markets and to help them find their way through their most complex issues. We are creative, pragmatic problem solvers and we know the restructuring world well.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

Subscribe

Insolvent Schemes and Restructuring Plans

211018-insolvent-schemes-restructuring-plans-thumb.jpg

The Part A1 Moratorium

210219-the-part-a1-moratorium-thumb.jpg

The UK Restructuring Plan: Key Features and the Story So Far

uk-restucturing-plan-infographic-thumb.jpg

Resources

The Honorable James M. Peck retired from Morrison Foerster upon his appointment as an International Judge of the Singapore International Commercial Court in January 2024. While at Morrison Foerster, Judge Peck chaired Morrison Foerster’s Cross-Border Restructuring practice and also headed the firm’s Mediation practice. Before joining Morrison Foerster, Judge Peck served as a U.S. Bankruptcy Judge for the Southern District of New York from 2006 to 2014, where he presided over the chapter 11 and SIPA cases of Lehman Brothers and its affiliates and a number of other major chapter 11 and chapter 15 cases and wrote multiple legal decisions that have helped define the impact of safe harbors on qualified financial contracts.By invitation, Judge Peck is a fellow of the American College of Bankruptcy and a member of the Panel of Recognized International Market Experts in Finance. He is a past president of the International Insolvency Institute, served on the board of governors of the National Conference of Bankruptcy Judges, and was judicial chair of the American Bankruptcy Institute’s annual New York City Bankruptcy Conference. Former Judge Peck currently chairs the Business Bankruptcy Advisory Committee for the Southern District of New York.Judge Peck co-chaired the ABI’s Advisory Committee on the Safe Harbors. He is a member of the Advisory Committee of the Asian Business Law Institute, is listed as a qualified member of mediation panels maintained by INSOL International, the Singapore Mediation Center, and the Singapore International Mediation Center, and has been included on the Panel of Arbitrators for Financial Services Disputes of the Hong Kong International Arbitration Center and the Panel of Arbitrators of the Singapore International Arbitration Center.Judge Peck has been retained on a number of occasions to furnish expert witness statements for submission to the High Court in London regarding issues of New York law, comity, and the recognition of main and non-main insolvency proceedings. He is also a frequent speaker worldwide on insolvency issues and has participated as a keynote speaker and a panel chair around the globe in conferences presented by numerous international organizations and law schools. These include INSOL International, the International Bar Association, INSOL Europe, and the National Conference of Bankruptcy Judges. He has authored articles published in the American Bankruptcy Institute Journal and International Insolvency & Restructuring Report, and is an editor of a recently published book titled The Art of the Ad Hoc.Before his judicial appointment in the Southern District of New York, Judge Peck was in private practice for over 35 years, concentrating much of that time on bankruptcy law, business reorganization, and creditors’ rights.

peck_james_blog_150x150.png

peck_james_common_640x280.jpg

peck_james_heroretina_2700x1160.jpg

peck_james_mobileretina_750x1040.jpg

peck_james_social_600x600.jpg

Retired Senior Of Counsel

Partner

The Honorable James M. Peck is head of Morrison Foerster’s Cross-Border Restructuring practice. Before joining Morrison & Foerster, former Judge Peck served as a United States Bankruptcy Judge for the Southern District of New York from 2006 to 2014. During his judicial service, former Judge Peck presided over the chapter 11 and SIPA cases of Lehman Brothers and its affiliates and a number of other major chapter 11 and chapter 15 cases. As a judge, he has written multiple legal decisions that have helped to define the impact of the safe harbors on qualified financial contracts.

James Peck

Lorenzo is global co-chair of the firm wide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.Lorenzo has represented the official committee of unsecured creditors in numerous recent chapter 11 cases, including Peer Street, Incora/Wesco, Clovis Oncology, Valaris, Windstream Holdings, Inc., Cloud Peak Energy, Westmoreland Coal Company, Inc., The NORDAM Group, Inc., Avaya Inc., Armstrong Energy, Inc., 21st Century Oncology Holdings, Inc., Peabody Energy, Inc., Energy Future Holdings, Corp., and UCI International, Inc.Lorenzo’s deep experience and capabilities advising on precedent-setting bankruptcy and restructuring matters have not gone unnoticed. He is listed as a leading lawyer in Chambers USA and has also been recommended by The Legal 500 US. He was also designated by Turnarounds & Workouts magazine as an Outstanding Restructuring Lawyer for his accomplishments in 2016, 2017, and 2024.

marinuzzi_lorenzo_blog_150x150.png

marinuzzi_lorenzo_common_640x280.jpg

marinuzzi_lorenzo_heroretina_2700x1160.jpg

marinuzzi_lorenzo_mobileretina_750x1040.jpg

marinuzzi_lorenzo_social_600x600.jpg

Lorenzo is global co-chair of the firmwide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.

Lorenzo is global co-chair of the firmwide Business Restructuring & Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.

Lorenzo Marinuzzi

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Welcome to our site! We look forward to sharing our analysis of the statutory, regulatory, legal and business related developments in the insolvency and restructuring world with you.You can expect articles, infographics and podcasts, as well as some interactive content, such as webinars and events. We would very much like to engage with you, so we encourage you to contact any of the authors or editors, should our content inspire or capture your interest or should you wish to discuss.

restructuringroundup-welcome.jpg

restructuringroundup-welcome

Announcements and Press

Welcome To Mofo Restructuring Round-Up

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

FEDERAL CIRCUITRY

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

MOFO TECH

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

EMPLOYMENT LAW COMMENTARY

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

SOCIALLY AWARE

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insights Blog

GOVERNMENT CONTRACTS INSIGHTS

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

CLASS DISMISSED

MoFo Restructuring Round-Up provides analysis of the statutory, regulatory, legal and business-related developments in the insolvency and restructuring world.

MoFo Restructuring Round-Up

  Linkedin

MoFo LinkedIN

Restructuring Blog - RSS

Stay Connected

Never miss a post from MoFo Restructuring Round-Up. Enter your email below to stay up-to-date.

The latest restructuring and insolvency updates and analysis from Morrison Foerster

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Webinars

Podcasts

U.S. Updates and Analysis

UK Updates and Analysis

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

James Michael Peck

More

London BRIG Update December 2023

The Administrator – An Officer of the Company?

European Uptier Transactions: Six Things to Look Out For

Liquidity Crises and Fiduciary Duties of Directors of Early-Stage Companies

High Court Rules that ISDA Bankruptcy-Related Events of Default Can Be Cured in Lehman Case

Is the rule in Gibbs justifiable in the context of modern international insolvency laws or is England clinging to an outdated rule simply to keep restructurings here? The rule stems from an 1890 Court of Appeal Case, which holds that only English courts can validate the compromise or discharge of English law governed debt. The rule cuts across the trend of increased cross-border cooperation in insolvency matters – commonly described as the “modified universalist” approach and critics see the rule as a relic of a more Anglo-centric approach to insolvency law. This outdated philosophy does not mirror the globalization of commerce and law, and thus arguably contrasts universalism with territorialism.Nonetheless, the rule in Gibbs remains good law, at least in the UK and Hong Kong. There have been international developments; the UNCITRAL Model Law on the Recognition and Enforcement of Insolvency-Related Judgments 2018 (“IRJ Model Law”) complements the 1997 Model Law on Cross-Border Insolvency (implemented in the UK through the Cross-Border Insolvency Regulations 2006 (CBIR 2006) and adopted by 23 other countries). The UNCITRAL Model Laws make foreign restructurings binding in other jurisdictions that have adopted the model laws. But the scope of the 1997 Model Law is limited in the UK. In the most recent Court of Appeal affirmation of the rule in Gibbs, the 2018 case of the International Bank of Azerbaijan, the court ruled that the UNCITRAL Model Law 1997 (through the CBIR 2006) is merely procedural and cannot interfere with how the Gibbs rule protects substantive English law contract rights.Seemingly, the newer IRJ Model Law (not yet enacted as part of English law) asserts universalism more than territorialism, most notably, perhaps, the rule in Gibbs – i.e., Article 13 of the IRJ Model Law specifically provides that recognition and enforcement of insolvency-related judgments is mandatory. However, in the <a href="https://www.gov.uk/government/consultations/implementation-of-two-uncitral-model-laws-on-insolvency/implementation-of-two-uncitral-model-laws-on-insolvency-consultation">recent</a> UK Government Consultation, published on July 7, 2022, on the IRJ Model Law, the UK government sets its face against implementing the IRJ Model Law in full. It has no intention of undermining the Gibbs rule, as it provides “certainty to contracting parties” and makes English law attractive for international use.Application of the Gibbs rule is actually more nuanced than simply not recognizing adjustment of an English governed debt by a non-English court. In a recent Hong Kong judgment of June 6, 2022 after sanctioning a scheme for Rare Earth Magnesium Technology, the Hong Kong courts clarified that the Gibbs rule did not prevent the recognition of a “foreign” insolvency procedure (in this case a U.S. Chapter 15 procedure). Had the foreign scheme purported to compromise substantive legal rights of parties to an agreement, only then would the rule in Gibbs be engaged.Arguably modified universalism may have reached its zenith if it overlooks trusted legal mechanisms. Proponents of the rule in Gibbs argue that parties choose English law to govern their debts because one of the incidents of their choice is that it falls to the English courts to adjudicate changes to those debts. They’re exercising a freedom to contract. While the principle that parties should be able to insist on the law of their choice and the courts of a particular jurisdiction having sole authority to compromise their debt – there’s still a sneaking feeling that this also serves the purpose of forcing international restructuring business to be conducted in the English jurisdiction, and baked into that is an irritating belief in the superiority of the English court. Authored by Howard Morris. Sakshi Rai, London Trainee Solicitor, and Guy Wilcock, a summer intern at the London MoFo office, have contributed to the drafting of this alert.

Substance over Form: How the Rule in Gibbs lives on

220728-brig-blog-thumbnail.jpg

Substance over Form: How the Rule in Gibbs lives on

Is the rule in Gibbs justifiable in the context of modern international insolvency laws or is England clinging to an outdated rule simply to keep restructurings here? The rule stems from an 1890 Court of Appeal Case, which holds that only English courts can validate the compromise or discharge of English law governed debt. 

There has been a series of warnings of an upcoming financial downturn; just too many strains on and impediments to the domestic and global economy, with inflation galloping and interest rates following, it seems – as the markets certainly believe – a downturn is coming or is already here. That is why the financial markets and central banks have responded with equal fear and, and in the case of the central banks, they are deploying or about to deploy their remaining might to avert recession or minimise its effects. And in a financial downturn loans go into default: What will lenders do?RefinancingBefore the global financial crisis in 2007–2008, borrowers typically refinanced their syndicated facilities a couple of years before maturity. There was significant liquidity available and low interest rates (i.e., cheap credit). While the financial crisis caused a significant amount of company collapses (affecting smaller companies more than larger ones) a lot of companies survived the financial crisis. This was in the face of the level of leveraged loans made between 2005 and 2007, which led to a “refinancing wall”, a wave of maturities falling due between 2012 and 2014. Lenders were unwilling to enter into new facilities but they were also pessimistic about the likely returns from an immediate insolvency process or enforcement. This led to a ubiquitous approach or strategy.Amend and extendAs an alternative to refinancing, many lenders were ready to “amend and extend” their facilities for a higher margin, additional fees, and, in some cases, the amendment of financial covenants. With an abundance of easy credit and a belief that asset values would rise year on year, which has at least been the case until recently, what was to be lost by postponing default? Hence the “amend and extend” deal, also waggishly called, not inaccurately, a “pray and delay”, became common.The amendment of U.S. loan agreements typically required lower levels of consent (majority consent plus the consent of the extending lenders) than UK or European loan agreements. Many UK and European loan agreements required unanimous consent, or super-majority consent, to amend and extend, particularly in the case of investment grade loans. So getting lender consent could be difficult. In some loan agreements there were facility change mechanisms allowing an existing tranche of debt to be increased or an additional tranche to be added. A borrower wishing to amend and extend its facility using the facility change mechanism would usually require consent from each extending lender, in addition to the majority of lenders (being 66 ⅔ percent) or a greater percentage as set out in the loan agreement. Interestingly, the level of consent required in UK and European loan agreements now often falls within a range which is lower than it used to be 15 years ago.Liquidity is now tightening, and while there is no refinancing wall that is equivalent to the one overcome a decade ago, it is becoming more costly to refinance. Particularly in leveraged credits, lenders are becoming less willing to form a view of where a leveraged borrower may be in the coming years, that its assets will be worth more and accordingly the option to amend and extend is less likely to be offered. Notably, amend and extend activity in Europe decreased in FY21, with 137 deals, in comparison to FY20, which saw 159 deals.Current market sentiment – are we reaching tipping point?With interest rates and inflation increasing, it is becoming more expensive to refinance and to service debt. Lenders will be carefully considering both the creditworthiness of a borrower and whether its business is sufficiently resilient to tackle troubling times. Lenders can no longer have confidence that the value of the borrower and its assets will continue to rise. Understandably, there is hesitation to lend. A debtor company should be considering whether it can afford to borrow based on the margin it must pay. As a response to distress and over-leverage problems, “amend and extend” had a data based rationalisation, yet it was still too much like the panglossian philosophy of Charles Dickens’ Mr Micawber when facing bankruptcy that “something will turn up”.

Will Creditors Amend and Extend or Enforce With(out) Remorse?

220727-brig-blog-creditors.jpg

Will Creditors Amend and Extend or Enforce With(out) Remorse?

There has been a series of warnings of an upcoming financial downturn; just too many strains on and impediments to the domestic and global economy, with inflation galloping and interest rates following, it seems – as the markets certainly believe – a downturn is coming or is already here.

On 6 April 2022, the English High Court made an administrative order in respect of the UK arm (VTB Capital) of Russia’s second largest bank, VTB Bank. VTB Capital is a designated entity under the UK sanctions regime, which has led to extensive asset freezes since the onset of the Ukraine invasion. Despite this, VTB Capital was one of the first sanctioned entities to be granted a general licence for its winding down by the UK Office for Financial Sanctions Implementation (UK OFSI). The general licence has not however made it easier for the Russian-owned bank to find funding to facilitate the wind-down of its business. Although the bank is balance sheet solvent, the skeleton argument made by VTB Capital at the High Court highlighted that it was unable to pay its employees, suppliers, and other creditors, thus making VTB Capital’s directors’ plea for an administration ‘urgent’.Usually, under the UK insolvency regime, banks like VTB Capital would be subject to a ‘special administration’, as special interests related to consumers or financial regulators have to be borne in mind in addition to those of the company’s creditors. However, as Mr. Justice Fancourt noted in the High Court, VTB Capital as in the ‘unusual’ position that it was already undergoing the wind-down of its affairs by the time Western nations started imposing more extensive and stringent sanctions on Russian-owned entities after 24 February 2022. It has been <a target="_blank" href="https://www.ft.com/content/27adf446-517a-4c4b-89e8-dee8757252e9">reported</a> that since the annexation of Crimea in 2014, VTB Capital anticipated there would be sanctions and began reducing its London operations. After boasting that it had over 500 London employees in 2014, its staff has now been reduced to only 120 in 2022. This example stands in contrast to the UK administrations of Russian banks Sova Capital and Sberbank, both of which are in administration under the special administration regime and had to begin their insolvency proceedings as a result of being hard hit by financial sanctions, rather than having prior plans to wind down.According to its skeleton argument, VTB Capital had already been in discussions with the Prudential Regulation Authority, the Bank of England, and the Financial Conduct Authority regarding its plans. As a result, despite being balance sheet solvent, the English High Court has allowed for this unusual case of ordinary administration for the bank. The decision is subject to the bank being granted a further licence from the U.S. Office of Foreign Assets Control, the U.S. equivalent of the UK OFSI. Once the bank’s administrators have been granted this licence, they will be free to open a bank account to continue the payments required for the relevant wind-down of VTB Capital.Authored by Howard Phillip Morris. Trainee Solicitor, Sakshi Rai, contributed to the drafting of this alert.

220428-brig-blog-graphic.jpg

The Curious Case of VTB Bank’s UK Administration

The Curious Case of VTB Bank’s UK Administration

220428-brig-blog-graphic

On 6 April 2022, the English High Court made an administrative order in respect of the UK arm (VTB Capital) of Russia’s second largest bank, VTB Bank. VTB Capit

As Russia’s invasion of Ukraine continues, governments around the world are coordinating and responding with increasingly severe sanctions and export controls on Russian entities, institutions, and individuals. Insolvency practitioners first wonder whether sanctioned entities, or entities connected to sanctioned individuals, can enter into an insolvency procedure and, if so, how does the insolvency practitioner accept an appointment and get paid? Demystifying these grey areas necessitates an overview of the UK sanctions regime and the carve-outs allowing sanctioned entities to continue with financial dealings in distressed circumstances.General Overview of the UK Sanctions RegimeIt is the Sanctions and Anti-Money Laundering Act 2018 (the “Sanctions Act”) that enables regulations for specific sanctions targets to be made, and provides criminal penalties for any breach. Under the Sanctions Act, the Russia (Sanctions) (EU Exit) Regulations 2019 (the “Sanctions Regulations”) were made to enable the Secretary of State to designate persons as subject to restrictions under the Sanctions Act. The Sanctions Regulations were further amended in 2022 in light of the current Ukraine war to widen the ambit of sectors and entities that can become designated under the Sanctions Regulations.The restrictions that can be imposed under these sanctions are wide-ranging, however the most notable for the commercial sector are the financial sanctions. This includes a blanket prohibition for dealing with any funds or assets of a sanctioned entity.Carve-Outs Under the Sanctions RegimeUnder the Sanctions Regulations, the UK Office for Financial Sanctions Implementation (UK OFSI) has the power to grant licences for specific purposes, or general licences, that enable sanctioned entities to continue an activity without breaching the sanction imposed on them. Licence applications are submitted by applicants on a form which is sent to the UK OFSI. The sanctioned entities must identify the legal basis for why they need to continue a financial activity despite the prohibition for dealing. The UK OFSI has granted some licences, most notably for Chelsea Football Club, which has been allowed to continue playing its games but subject to restrictive conditions in contrast to the general perception of free-spending EFL Premier League clubs. In the realm of insolvency proceedings, a general licence was granted for the wind-down of Russian-owned VTB Capital illustrating how to pursue an insolvency proceeding for a sanctioned entity.Entering into Insolvency Proceedings as a Sanctioned EntityGiven the novelty of the situation, there are few precedents to provide a roadmap as to how sanctioned entities are to be dealt with in an insolvency proceeding. English Courts have extensive powers to appoint a ‘receiver’ in cases where it appears ‘just and convenient’ to do so. However, it is unlikely that this is an unlimited right of the Court. The need for a legal basis to ground the general licence carve-out under the Sanctions Regulations supports an argument that a licence is necessary to appoint a receiver.Sanctioned Russian bank Sberbank CIB has gone into <a target="_blank" href="https://www.fca.org.uk/news/news-stories/sberbank-cib-uk-limited-goes-special-administration">special administration</a>, whereas VTB Capital has gone into a regular administration as it was farther down the road towards closing its business. The administration<del>s</del> of these sanctioned banks illustrates that financial sanctions will not in and of themselves stop insolvency processes from going ahead.Please see our comprehensive <a target="_blank" href="https://www.mofo.com/special-content/sanctions/">Sanctions Resource Center</a>, with particular highlights on the firm’s highly regarded National Security team, led by Sanctions expert John Smith, former director of the U.S. Office of Foreign Assets Control, the U.S. sanctions entity, and our <a target="_blank" href="https://www.mofo.com/resources/events/220303-new-russia-sanctions-details-impact.html">webinar</a> on the new Russia sanctions, which further dissects the details.Authored by Howard Phillip Morris. Trainee Solicitor, Sakshi Rai, contributed to the drafting of this alert.

220428-brig-blog.jpg

The Insolvency Practitioner’s Playbook: Making Sense of the UK Sanctions Regime

The Insolvency Practitioner’s Playbook: Making Sense of the UK Sanctions Regime

220428-brig-blog

As Russia’s invasion of Ukraine continues, governments around the world are coordinating and responding with increasingly severe sanctions and export controls o

This article explores transactions by buyers, lenders, security agents, and insolvency practitioners that may trigger the application of the UK’s new investment screening regime.<a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt5fcc97efa4e94589/627319115f7b601eaaebd08e/220405-national-security-infographic.pdf">Download the below infographic</a><div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt34024949913d642a" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt0b9658b199236b19/627319127198441d81b3a613/220405-national-security-infographic-full.jpg?format=auto&amp;quality=60" alt="National Security Infographic"></div></div>

220330-national-restructuring-blog.jpg

The National Security Investment Act 2021 and its Implications for Distressed Investments and Restructuring

The National Security Investment Act 2021 and its Implications for Distressed Investments and Restructuring

220330-national-restructuring-blog

This article explores transactions by buyers, lenders, security agents, and insolvency practitioners that may trigger the application of the UK’s new investment

Here are our top tips for investor appointed directors to help them navigate the complexities that arise when portfolio companies are in financial distress and investor interests diverge.<div data-aspectratio="0.43624161" id="experience-622147e7be609" style="position: relative;width: auto;padding-top: 0px;padding-right: 0px;padding-bottom: 229.23%;padding-left: 0px;height: 0px;top: 0px;left: 0px;bottom: 0px;right: 0px;margin-top: 0px;margin-right: 0px;margin-bottom: 3rem;margin-left: 0px;border-top-width: 0px;border-right-width: 0px;border-bottom-width: 0px;border-left-width: 0px;border-top-style: none;border-right-style: none;border-bottom-style: none;border-left-style: none;border-top-color: initial;border-right-color: initial;border-bottom-color: initial;border-left-color: initial;border-image-source: initial;border-image-slice: initial;border-image-width: initial;border-image-outset: initial;border-image-repeat: initial;" class="no-print"><iframe src="//view.ceros.com/mofo/02-04-topfivetips-v7-page1-1?heightOverride=1490" scrolling="no" title="02_04_TopFiveTips_v7[page1] Copy" class="ceros-experience" frameborder="0" style="height: 1500px;" title="iframe"></iframe></div>View the <a href="https://www.mofo.com/resources/insights/220324-five-tips-for-investor-directors.html" target="_blank">full client alert</a>.

moforestructuring-6-thumb.jpg

Five Tips for Investor Directors in the Zone of Insolvency

Here are our top tips for investor appointed directors to help them navigate the comple

Five Tips for Investor Directors in the Zone of Insolvency

On 10 March 2022, the UK High Court held the adjourned sanction hearing regarding Smile Telecoms Holdings Limited’s (“Smile”) second proposed restructuring plan. Despite Smile Telecoms’ first restructuring plan being sanctioned by the UK High Court back in March 2021, the African telecommunications company still faced liquidity shortages. This prompted the company to propose a second restructuring plan under Part 26A of the UK Companies Act 2006 (the “Companies Act”). The second restructuring plan would see the Smile Telecoms’ group senior secured lender, 966 CO S.a. r.l. (“966”), provide additional secured funding of $35.6m and obtain all of the group’s economic and voting rights, to facilitate a controlled sales process. Previously, 966 had provided additional liquidity of $63m under the terms of the first restructuring plan.At the January convening hearing, Miles J held that only 966 had a “genuine economic interest” in Smile. Accordingly, an order was made under section 901(c)(4) of the Companies Act for there to be a single meeting of the super senior class, composed of 996. The order dispensed with the need for meetings of the seven remaining creditor classes to vote on the terms of the restructuring plan, based on valuation evidence demonstrating that the creditors were “out-of-the-money” in the relevant alternative of an administration.Before the initially planned sanction hearing, an opposing lender, African Export-Import Bank, wrote to Smile opposing the restructuring plan, attaching an alternative desktop valuation seeking to undermine Smile’s valuation report. Additional senior lenders, Ecobank and the Industrial Development Corporation of South Africa (IDC), also oppose the restructuring plan. However, no opposing party had filed disputing valuation evidence at the convening hearing, as would be expected. Further, as noted by Smile’s counsel, the court should not re-open arguments, without good reason as to why the valuation issues were not raised previously.On matters of recognition, IDC, in its opposition to the restructuring plan, stated “it does not understand how an English law process such as the [plan] can compromise its rights”. Smile is a Mauritian incorporated company with an establishment in England. Smile had produced expert evidence stating that a sanctioned plan will likely be recognised in Mauritius and South Africa (under whose laws one of the shareholder agreements is governed). Recognition in Mauritius is to be effected by way of a special resolution that will be executed by a power of attorney, which is granted under the restructuring plan.Snowden LJ has reserved judgment.The second restructuring plan of Smile Telecoms brings additional “firsts” to the restructuring plan case law. In particular, this is the first case in which “out-of-the-money” creditors (and members) were expressly excluded from voting, with a single class of creditor convened. Further, the sanctioning of the plan would mark the first time a restructuring plan changes the constitution and capital structure of a foreign company.Read the <a target="_blank" href="https://app.reorg.com/documents/20220310/6229e2e4c46bc.pdf">Skeleton Argument from the hearing</a>.London Trainee Solicitor, Sakshi Rai, contributed to the drafting of the post.

03_30_africa_web_title.jpg

Smile Telecoms’ restructuring plans considered at UK High Court hearing: questions of valuation and exclusion of out-of-the-money creditors

Smile Telecoms’ restructuring plans considered at UK High Court hearing: questions of valuation and exclusion of out-of-the-money creditors

03_30_africa_web_title

On 10 March 2022, the UK High Court held the adjourned sanction hearing regarding Smile Telecoms Holdings Limited’s (“Smile”) second proposed restructuring plan

This update summarises the latest jurisprudence on insolvent schemes of arrangement (schemes) and restructuring plans (RPs), and provides an overview of the key themes that are emerging in this area.<a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt36de57195828d1bb/627318feb5ad5f2863c5969c/211018-insolvent-schemes-restructuring-plans.pdf" target="_blank">Download the below infographic</a><div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt885dbf7b0d67d995" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt83e25587adc4b765/627318ff4d9f8929712902bd/211018-insolvent-schemes-restructuring-plans.jpg?format=auto&amp;quality=60" alt="Infographic - The Latest on Insolvent Schemes and Restructuring Plans"></div></div><h4>Key Concepts and Notes</h4><ul><li>Absolute priority rule – U.S. Bankruptcy Law principle which prevents junior creditors from being paid before all senior creditors have been paid in full. </li><li>Burning platform – when a company can prove that its insolvency is imminent and unavoidable.</li><li>Cross-class cram-down – feature of RPs which causes dissenting creditors or members to be bound to a RP, provided that the “no worse off test” is satisfied. </li><li>DIP financing – ‘super priority’ lending provided to finance a debtor’s operations during a U.S. Chapter 11 bankruptcy case.</li><li>Low turnout of creditors – does not automatically mean that a scheme will not be sanctioned. It is relevant to the court’s fairness assessment whether turnout is fairly representative of creditors.</li><li>Lugano Convention – the UK is now no longer party to this following Brexit (as of 1 January 2021). It nevertheless applied in Gategroup as the RP in that case was issued before 1 January 2021. </li><li>“No worse off test” – a test which must be satisfied to use the cross-class cram-down procedure. Must be established that the dissenting class would be no worse off under the plan than they would be in the relevant alternative.</li></ul><h4>Cases Referenced</h4>Re Provident SPV Limited (“Provident”) [2021] EWHC 2217 (Ch)Re Hurricane Energy Plc (“Hurricane Energy”) [2021] EWHC 1759 (Ch)Re All Scheme Ltd (“Amigo Loans”) [2021] EWHC 1401 (Ch)Re Virgin Active Holdings Ltd (“Virgin Active”) [2021] EWHC 1246 (Ch)Re Gategroup Guarantee Ltd (“Gategroup”) [2021] EWHC 304 (Ch)Re DeepOcean 1 UK Ltd and others (“DeepOcean”) [2021] EWHC 138 (Ch)Julia Kotamäki, London trainee solicitor, contributed to the drafting of this alert.

211209-bankruptcylawinsights-uk-updates-thumb.jpg

The Latest on Insolvent Schemes and Restructuring Plans

The Latest on Insolvent Schemes and Restructuring Plans

211209-bankruptcylawinsights-uk-updates.jpg

211209-bankruptcylawinsights-uk-updates

This update summarises the latest jurisprudence on insolvent schemes of arrangement (schemes) and restructuring plans (RPs), and provides an overview of the key

<div class="videoWrapper"><iframe width="560" height="315" src="https://www.youtube-nocookie.com/embed/ed7XHXr-KX0" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" style="width: 560%; height: 315;" title="iframe"></iframe></div>This webinar provides an overview of the relevant restructuring and insolvency tools applicable to energy suppliers, considerations of directors in response to the threat of insolvency, the consequential additional or changed duties, and risks of personal liability, and right experts needed to deliver a successful restructuring. It is relevant to energy suppliers and their directors.

211209-bankruptcylawinsights-webinars.jpg

What You Need to Know About Restructuring and the Energy Crisis

What You Need to Know About Restructuring and the Energy Crisis

211209-bankruptcylawinsights-webinars


This webinar provides an overview of the relevant restructuring and insolvency tools applicable to energy suppliers, considerations of directors in response to

Howard Morris, Amrit Khosa, and Jai Mudhar discuss the Part 26A restructuring plan and the legal developments that have unfolded since its introduction.This pragmatic and informative discussion is designed to equip our clients with the latest updates to help navigate the months ahead.<iframe src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/1101554182&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true" title="MoFo Perspectives - The Part 26A Restructuring Plan" allow="autoplay" frameborder="no" scrolling="no" width="100%" title="iframe"></iframe>

211209-bankruptcylawinsights-podcasts.jpg

MoFo Perspectives: The Part 26A Restructuring Plan – A Year On and Beyond

MoFo Perspectives: The Part 26A Restructuring Plan – A Year On and Beyond

211209-bankruptcylawinsights-podcasts

Howard Morris, Amrit Khosa, and Jai Mudhar discuss the Part 26A restructuring plan and the legal developments that have unfolded since its introduction.
This pr