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Www.kirkland.com | 1 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A.

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Presentation on theme: "Www.kirkland.com | 1 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A."— Presentation transcript:

1 | 1 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S CHICAGO HONG KONG LONDON LOS ANGELES MUNICH NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI WASHINGTON, D.C Leo Plank – Partner – Kirkland & Ellis International LLP Bucharest, 30 May 2013 Recent Trends in Financial Restructurings: How to Avoid a Value Destructive Insolvency

2 | 2 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S  Introduction to LBO Restructurings – How the Financial Creditors Set Up Structures to avoid an Insolvency  Klöckner Pentaplast Case Study  Rodenstock Case Study Issues Presented

3 | 3 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Introduction to LBO Restructurings – How the Financial Creditors Set Up Structures to avoid an Insolvency

4 | 4 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Intercreditor Agreement All Debt Tranches are Party Set Up of a Typical LBO Structure Aim is to create efficient contractual and structural subordination and a clean enforcement structure to avoid value destructive insolvencies Investor HoldCo HoldCo D/Lux OpCo T 2 OpCo T 3 Share pledge Investor Debt Mezzanine/2nd Lien Debt Senior Debt OpCo T 1 Value Break Considerations Value Time EV Value / Trading Value of debt over time

5 | 5 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Restructuring Solutions Consensual out-of-court restructuring  Usually unrealistic for a debtor facing severe financial and operational difficulties.  Particularly time-intensive.  Diverse constituent groups generally assert often conflicting interests.  Minority investors and shareholders likely to obstruct process unless bought off (hold out, free rider dilemma). Enforcement of share pledge(s) / Use Release Powers under the Intercreditor Agreement  Involves assuming control of operating entities by creditor holding share pledge.  Use the powers granted to the Security Agent under the Intercreditor Agreement to release debt and force creditors to take a haircut.  May involve new investment.  Newly-formed Special Purpose Vehicle purchases entity whose shares have been pledged through sale of enforced shares.

6 | 6 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Controlled (pre-arranged/negotiated) coercive process (Scheme of Arrangement / COMI Shift, Chapter 11, Local Bankruptcy)  Necessary when the Intercreditor Agreement is defective / does not work as intended.  May also be necessary when operational issues (leases, bilateral debt at the operating companies etc) must be addressed. Restructuring Solutions (cont/...)

7 | 7 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Obtaining Control Share Pledge Enforcement in Luxembourg Investor HoldCo HoldCo Lux OpCo OpCo T 1 OpCo T 2 OpCo T 3 Share Pledge Enforcement

8 | 8 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Key Steps  Pledge of shares in accordance with Luxembourg law.  The Security Agent can acquire the shares itself (in the context of a private sale at fair market value).  Certain “fair dealing” rules apply and the Security Agent will be required to conduct a market valuation prior to sale and transfer.  Due Diligence must be commenced prior to enforcement, as the sale will occur nearly immediately after the Security Agent calls the loan.  Credit bidding also is possible. Obtaining Control Share Pledge Enforcement in Luxembourg (cont’d)

9 | 9 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Necessary Steps  Missed payment or nonpayments, causing an “event of default” under various loan covenants.  Restructuring or “lock up” agreement negotiated and executed with participating lenders.  Generally, 2/3 majority under applicable credit agreements necessary.  All or a portion of the debtor’s available credit is called; guarantees (if any) triggered.  Actual insolvency (and obligation to file for bankruptcy) avoided through standstill.  Security Agent commences share pledge enforcement.  Intensive negotiations necessary due to legal and practical difficulties.  Lender-controlled and -financed NewCo entity formed; bids on the shares in a controlled sale subsequent to share pledge enforcement.  Payment in cash or as a “credit bid,” pursuant to § 1239 of the German Civil Code.  Payment distributed to remaining creditors pursuant to Intercreditor Agreement. Obtaining Control Share Pledge Enforcement

10 | 10 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S  Risk regarding improper sale process.  Change of control issues.  Approval requirements in credit agreements.  Security Agent risks, including willingness to follow through and indemnification issues.  Antitrust challenge issues.  Shareholders or prior sponsors seek to undermine the enforcement and transfer to the SPV.  In particular, insolvency risks must be considered and comprehensively analyzed. Obtaining Control Share Pledge Enforcement Risks

11 | 11 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Klöckner Pentaplast Case Study

12 | 12 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S

13 | 13 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Description of the Transaction  EUR million outstanding under pre-restructuring First Lien Facilities and EUR million outstanding under our pre-restructuring Junior Facilities (2L and Mezz).  Total consolidated debt as of March 31, 2012 was EUR 1,219.9 million, which was 8.5 x our Adjusted EBITDA for the twelve months ended March 31,  Leverage ratio covenant breach for the period ended December 31, Company obtained a waiver of this breach until June 22, 2012 from pre-restructuring Senior Lenders.  On June 21, 2012, KP was recapitalized and the equity of one of the Luxembourg holding companies was purchased by way of a private enforcement sale by an entity financed by certain of former Junior Lenders, including funds affiliated with SVP.  As part of the transaction EUR million was paid in cash to repay in full the liabilities under our pre-restructuring First Lien Facilities (including accrued interest and cash paid to settle outstanding interest rate hedge agreements).  Recovery by holders of the group’s liabilities under the pre-restructuring Junior Facilities was effected through the equitization of their claims.

14 | 14 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Implementation Alternatives Available Scheme plus pledge enforcementIntercreditor buy-out plus pledge enforcement Contractual amendment plus pledge enforcement Scheme would be proposed to deal with tax issues in the absence of clearance from German tax authorities Requires senior acceleration to triggerIntercreditor amendment required to deal with tax issues Timing issues given waiver timetable and new money commitments Only implementation route that could be implemented unilaterally but impractical due to drafting Specific intercreditor amendment provisions helpful Requires company consentUseful leverage pointsAbsent buy-out the senior pre-payment requires company consent Also requires a scheme or contractual amendment to deal with tax issues Transaction documentation contained an ability to release or “flip-up” debt, security and guarantees on enforcement but did not allow for transfer or warehousing of old debt. This resulted in significant tax challenges for both competing proposals.

15 | 15 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Rodenstock Case Study

16 | 16 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S The Rodenstock Group The Scheme Company: Rodenstock GmbH (“Rodenstock”)  German limited liability company with its headquarters in Munich.  German and foreign subsidiaries and a German parent but ultimately owned by a private equity sponsor (the “Sponsor”). The Rodenstock business  Europe’s fourth largest manufacturer and distributor of frames and spectacle lenses.  Maintained around 40 sales offices across the globe and major production facilities in Europe and Thailand. The financial situation  Rodenstock GmbH (“Rodenstock”) was main operating company in the Group with a turnover of approximately EUR million. Rodenstock Group’s aggregate annual turnover was approximately EUR million.  Outstanding senior debt of approximately EUR 305,335,000 secured by a market standard collateral package.  The syndicate primarily consisted of major banks. Only very few CLOs and hedge funds were present in the lending group.

17 | 17 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Restructuring Process Deterioration of the business  During the global financial crisis Rodenstock suffered a deterioration in its business.  The deterioration led to a breach of certain financial covenants under the existing senior facilities agreement. Restructuring attempt  In mid-2009 the senior lenders formed a senior coordinating committee but lender group was fractioned and did not appear to act as a homogenous group with aligned interests.  Not able to agree on a straightforward transaction with another private equity sponsor initiated by Sponsor. Scheme in light of imminent threat of insolvency  Rodenstock and the senior coordinating committee took charge of the process in light of the imminent threat of insolvency proceedings.  Ultimately, the parties chose to pursue a restructuring by way of an English Scheme of Arrangement to preserve the going concern value of the Group.

18 | 18 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Restructuring Agreement and Scheme Restructuring Agreement  Rodenstock, members of the senior coordinating committee and certain other seniors entered into a Restructuring Agreement providing the framework for the proposed restructuring.  The framework contemplated implementation by means of a Scheme in case the restructuring could not be implemented consensually or by way of any other method.  The only other alternative option available seemed to involve a share pledge enforcement.

19 | 19 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Scheme Jurisdiction Re Rodenstock [2011] EWHC 1104 (Ch) Jurisdiction: “liable to be wound up under the Insolvency Act 1986”  Section 895 (2) (b) of the Companies Act 2006 is designed simply to identify the types of companies which may be subject to the Scheme jurisdiction.  Insolvency Act 1986 confers jurisdiction to wind up both insolvent and solvent unregistered companies with no express jurisdictional restriction to the company's place of incorporation, centre of main interest or establishment.  Nothing in either Judgments Regulation or the Insolvency Regulation (both came into force far later than the provisions on the court's jurisdiction to sanction Schemes) was intended to, and in fact does, restrict the scope of the “liable to be wound up” touchstone of jurisdiction, i.e. a company being eligible for the application of a Scheme of Arrangement.  However, Briggs J. left open whether and to what extent the Scheme Creditors must satisfy jurisdiction pursuant to Chapter II of the Judgments Regulation.  Unnecessary to resolve this issue because more than 50 percent (by value) of the Scheme Creditors, i.e. Rodenstock’s senior lenders, were domiciled in England.

20 | 20 A L A W F I R M S E R V I N G G L O B A L C L I E N T S KIRKLAND & ELLIS INTERNATIONAL LLP A L A W F I R M S E R V I N G G L O B A L C L I E N T S Chicago Kirkland & Ellis LLP 300 North LaSalle Chicago, IL United States fax London Kirkland & Ellis International LLP 30 St Mary Axe London EC3A 8AF United Kingdom fax Los Angeles Kirkland & Ellis LLP 333 South Hope Street Los Angeles, CA United States fax Shanghai Kirkland & Ellis International LLP 11/F, HSBC Building, Shanghai IFC 8 Century Avenue, Pudong New District Shanghai, P.R. China fax Palo Alto Kirkland & Ellis LLP 3330 Hillview Avenue Palo Alto, CA United States fax Munich Kirkland & Ellis International LLP Maximilianstrasse Munich Germany fax Washington, D.C. Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C United States fax Hong Kong Kirkland & Ellis 26/F, Gloucester Tower, The Landmark 15 Queen's Road Central Hong Kong fax New York Kirkland & Ellis LLP 601 Lexington Avenue New York, NY United States fax San Francisco Kirkland & Ellis LLP 555 California Street San Francisco, CA United States fax


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