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turnarounds Inside workouts news for People Tracking Distressed businesses June 2012 Volume 26, number 6 Latest Reports: Marco Polo! • Court Ruling Broadens Foreign Companies Qualify for Chapter 11 Says Court Foreign Company Qualifica- by Julie Schaeffer tion for Chapter 11 According to a recent court decision, having even very limited property in the United • Caribbean Petroleum States qualifies a company for Chapter 11 reorganization. That’s good news for foreign Disaster Triggers Court Battles companies, but bad news for creditors, who may find debtors protecting themselves with Chapter 11’s automatic worldwide stay. • Hotel Restructurings Pose Netherlands-based Marco Polo Seatrade B.V. (MPS) owns and operates six ocean- Unique Challenges going tanker ships. Its principal financing consisted of two facilities, both secured by mortgages on the ships: $90 million with Crédit Agricole as agent, and $118 million with Royal Bank of Scotland RBS as agent. In July 2011, MPS and three of its entities filed Research Report: for Chapter 11 in the U.S. Bankruptcy Court for the Southern District of New York. In Who’s Who in Hostess continued on page 2 Brands, Inc. Caribbean Petroleum Salvage Job Restructuring Attorneys Prevail for Stakeholders Special Report: by Dave Buzzell Bankruptcy Tax This is the first of a two-part article. Specialists in the Nation’s In the early morning hours of October 23, 2009, eleven huge fuel storage tanks at an Major Law Firms oil refinery and depot in Bayamon, Puerto Rico, exploded into a fireball more than 100 feet high. The explosions incinerated much of the facility and shook the surrounding Worth Reading: area with a force equivalent to a 2.8 magnitude earthquake. The cause of the explosions remains the subject of ongoing federal and local investigations. Corporate Recovery: The Bayamon facility was not the only thing that was destroyed. Its owner, Caribbean Managing Companies in Petroleum Corporation, was, for all intents and purposes, also leveled. The disaster brought Distress continued on page 2 Special Report: Hotel Restructurings U.S. Turnaround and More Stakeholders, More Complexity Restructuring Firms with by Julie Schaeffer European Offices Florida-based Innkeepers USA Trust has emerged from Chapter 11 bankruptcy with the $1.02 billion sale of its 64 hotels to a joint venture between Cerberus Capital Management LP and Chatham Lodging – a transaction that its restructuring advisors say was relatively seamless given the complexity of hotel restructurings. “What’s unique about restructuring in the hotel space is that you often have three separate stakeholders,” explains Jeff Goldberg, a director at AlixPartners. “It’s common to have an owner and a hotel manager, and in many cases you also have a separate brand manager. The hotel manager and the brand manager have a big stake in what happens, but they aren’t really creditors, so that leads to an unusual dynamic.” continued on page 2 2 Turnarounds & Workouts June 2012 Marco Polo, from page 1 Caribbean, from page 1 Hotels, from page 1 response, both Crédit Agricole and RBS the company’s operations to a standstill. New York middle-market debt filed motions seeking dismissal of MPS’s FTI Consulting was brought in as investor Apollo Investment Corp. bought Chapter 11. crisis manager and CRO, and in August Innkeepers, which had nearly 10,000 The U.S. Bankruptcy Code clearly 2010, Caribbean Petroleum had filed for rooms at the height of the market in June states that “only a person that resides Chapter 11 in Delaware. Now, about two 2007, for $1.5 billion and invested about or has a domicile, a place of business, years later, an orderly liquidation under $250 million in improvements. As the or property in the United States, or a a fully-consensual Chapter 11 plan is in economy slowed, however, Innkeepers, municipality, may be a debtor under this advanced stages. along with the entire lodging industry, title.” Caribbean Petroleum was integral to experienced declines in occupancy rates. However, foreign companies have, Puerto Rico’s economy. The company Ultimately, Innkeepers filed for Chapter in the past, successfully used Chapter owned a very large pipeline to receive 11 on July 19, 2010, blaming its problems 11. One example is the Dutch company shipments of petroleum at its dock. From on debt that had become unmanageable Almatis, which consisted of operating there, pipelines transported the fuel to more in the wake of the economic downturn. companies located in the Netherlands, than 40 storage tanks. The storage tanks A year after its filing, the hotel emerged the United States, and other non-U.S. were used to supply customers like the from bankruptcy with a tremendous jurisdictions, including Germany, India, Puerto Rico airport and the Puerto Rico outcome for secured creditors, unsecured and China. It successfully restructured Electric Power Authority. The company creditors, hotel managers, brand managers, under Chapter 11 in 2010. also had a network of owned and leased gas employees, and guests. The reason, says Filing in the United States is attractive stations around Puerto Rico, making it a Goldberg, is a solid understanding of the to foreign companies because of favorable closely integrated and profitable business. hotel restructuring business by all parties differences between bankruptcy laws in Cadwalader, Wickersham & Taft was involved in the deal. the United States and abroad, particularly hired as lead counsel for the debtor. One complicating factor in hotel in Europe. Zachary Smith was one of the principal restructurings, says Goldberg, is that Unlike the U.S. Bankruptcy Code, attorneys assigned to the case. It was they often encompass multiple properties. which emphasizes reorganization and immediately apparent to the Cadwalader Some restructurings are single-asset rehabilitation of financially distressed team, working closely with FTI, that deals in which an investor owns a single companies, European bankruptcy laws the company was facing more than just property. Others, however, are portfolio focus primarily on liquidation and the the dire consequences of the explosion. deals wherein an investor owns 30 to 50 protection of secured creditors’ rights. “It was a perfect storm,” Smith says. properties. “Generally you are looking at a process “Not only was the company essentially “When you think about the dynamic that is fairly value destructive,” says nonoperational, the secured debt owed that three stakeholders – owners, hotel James Roome, of European bankruptcy. to its primary lender – Banco Popular de managers, and brand managers – play in a Roome is managing partner of Bingham’s Puerto Rico – was in default. The bank single-entity restructuring, it’s easy to see London office and co-chair of the firm’s held a lien on substantially all of the how it gets even more complicated when global financial restructuring group. company’s assets. There was minimal you’re dealing with a larger portfolio,” says “In the United States, there is a Chapter cash flow, and it was impossible to find Goldberg. “You may have multiple hotel 11 process for the reorganization of any lender willing to commit sufficient managers and you’re probably representing companies that provides for an in-court capital to rehabilitate the company.” all of the major brands, such as Marriott, mechanism where management remains Given these insurmountable problems, Hilton, Hyatt, and Starwood. That’s where in control. In Europe, there has been it became clear that a Section 363 sale was the real complexity comes in.” a long tradition of treating insolvency the most prudent course of action. The That dynamic creates confusion when and corporate distress as a crime, and company urgently needed DIP financing. it comes to creditors. “The trade or consequently the incentives against Already “liened up,” it made the most traditional creditors you consider in a getting into that process are very strong.” sense to obtain the financing from one restructuring aren’t a big factor in a hotel Crédit Agricole and RBS argued that of its existing lenders. As a condition of restructuring because most of the supplies MPS’s bankruptcy did not belong in providing the financing, Banco Popular you’re getting are short-term trade credit,” a U.S. bankruptcy court, as there was required, and the parties agreed, upon an says Todd Brents, a managing director at insufficient basis for jurisdiction. expedited 363 sale and plan processes. AlixPartners. “However, the challenge is The creditors asserted that MPS was With the company pursuing a swift to figure out who they’re creditors of – the foreign and had no sufficient nexus with sale of substantially all of its assets, a owner or the hotel manager?” the United States. creditors’ committee was appointed, “Managers generally push for the They also alleged that MPS filed for represented by Morrison Foerster. Todd trade creditors to be considered the Chapter 11 only to take advantage of the Goren, a partner at the firm, handled responsibility of the owner,” adds automatic stay. MPS wanted, the creditors many of the day-to-day affairs in the Goldberg. “You get a lot of incoming argued, to wait for better times in the case. Goren was confronted with a calls from vendors, even before a filing to shipping industry under the protection of company so damaged that it was highly ask what’s going on. It’s very important, the automatic stay. uncertain that unsecured creditors would if Chapter 11 is filed, that any kind of Finally, Crédit Agricole and RBS receive anything, even though Caribbean cash collateral motion addresses the continued on page 4 continued on page 4 continued on page 4 June 2012 Turnarounds & Workouts 3 Research Report Who’s Who in Hostess Brands, Inc. by Francoise C. Arsenault Hostess Brands, Inc. (Hostess) was The previous week, the bankruptcy judge as the Hostess CEO, President, and CRO.