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New Options for Creditors in German

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New Options for Creditors in German Number 1257 14 November 2011 Client Alert Latham & Watkins Finance Department New Options for Creditors in German Insolvency Proceedings German Parliament passes “Act for the Further Facilitation of the Restructuring of Companies“ (Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen, ESUG) On 27 October 2011, the German incorporated into the German Parliament (Bundestag) finally passed Insolvency Act of 1999. The reform the “Act for the Further Facilitation will give rise to new opportunities, of the Restructuring of Companies“ especially for banks and hedge funds, (Gesetz zur weiteren Erleichterung der but also for distressed companies. Sanierung von Unternehmen, ESUG, BT-Drs: 17/7511) (ESUG). The Federal The new Preliminary Council of Germany (Bundesrat) will “The insolvency vote on ESUG in late November or Creditors’ Committee reform will give early December 2011. The aim of In order to allow creditors to have this substantial insolvency reform rise to new more influence at the early stages of is to make German insolvency law insolvency, a new form of statutory opportunities, more competitive. In the past, it has creditor participation, the “Preliminary especially for been routine for creditors to consider Creditors’ Committee” (vorläufiger and, in some cases implement, a shift banks and hedge Gläubigerausschuss), has been of the debtor company’s center of introduced (sec. 22a ESUG-InsO). funds, but also main interest (the so called COMI) A Preliminary Creditors’ Committee for distressed abroad in order to benefit from shall be set up during preliminary foreign insolvency legislation. In companies.” insolvency proceedings where the order to supersede this type of forum debtor company satisfies two of shopping, the German legislator has the following three requirements: a significantly improved the influence balance sheet total in excess of EUR of creditors in insolvency proceedings, 4,840,000, revenues of at least EUR has introduced innovative options to 9,680,000 in the twelve months prior swap debt into equity and has cut to the last balance sheet date and/or back on the means by which minor fifty or more employees. As German creditors and shareholders of debtor insolvency law does not provide for companies can commence capricious unitary group insolvency proceedings, appeals. Moreover, the legislator has multiple Preliminary Creditors’ substantially improved the insolvency Committees may have to be appointed plan proceedings and the Chapter where there are multiple insolvency 11-like debtor-in-possession (DIP) proceedings within one group of proceedings which were initially companies. Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and an affiliated partnership conducting the practice in Hong Kong and Japan. Latham & Watkins practices in Saudi Arabia in association with the Law Office of Mohammed A. Al-Sheikh. Under New York’s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York’s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022-4834, Phone: +1.212.906.1200. © Copyright 2011 Latham & Watkins. All Rights Reserved. Latham & Watkins | Client Alert The Preliminary Creditors’ Committee the criteria for the appointment of the will be able to participate in certain potential administrator. Moreover, the important insolvency court decisions. committee can propose to the courts the It will have, for example, the power to names of certain individuals to act as influence the following: the selection of insolvency administrators. The process (preliminary) insolvency administrators of coordinating these proposals should (vorläufige Insolvenzverwalter and be initiated at an early stage as the court Insolvenzverwalter), orders for is not obliged to request the criteria if DIP proceedings (Anordnung der this leads to a delay that results in the Eigenverwaltung), and appointments of financial deterioration of the debtor preliminary trustees (Sachwalter). company. In order to maximize the influence of If the Preliminary Creditors’ Committee the Preliminary Creditors’ Committee, has suggested certain criteria which creditors should, ideally, prepare the should be fulfilled by an insolvency appointments to the committee before administrator, the court has to take filing for insolvency. If there are multiple such criteria into account. Where a insolvency proceedings within one Preliminary Creditors’ Committee group, creditors should ensure the unanimously agrees on a person as proper coordination of all appointments. insolvency administrator, the insolvency Moreover, creditors should agree in court may only disregard the proposal advance on the name of the person if the person presented is unqualified to who will be the preliminary insolvency act as an insolvency administrator (sec. administrator. Creditors should present 56a para. 2 ESUG-InsO). the proposal, which includes the names The previous draft of the ESUG of proposed members of the Preliminary contained a provision allowing for the Creditors’ Committee and the name of appointment of advisors as insolvency the proposed preliminary insolvency administrators who had prepared administrator, together with the filing an insolvency plan (Insolvenzplan), for insolvency. Whereas the insolvency together with the creditors and debtors, courts have the power to decide not prior to their appointment. This to set up a Preliminary Creditors’ provision was unfortunately deleted Committee where this will lead to a in the legislative process. This has delay that is financially detrimental to meant a limitation on creditors having the debtor company (sec. 22a para. 3 an insolvency plan prepared and ESUG-InsO) (thereby frustrating early implemented by one advisor (Pre- stage creditor influence), by filing this Packed Deal). However, a Pre-Packed proposal together with consent forms Deal has not been rendered impossible. executed by the proposed members, The creditors will have to prepare the the court is obliged to pursue with the Pre-Packed Deal with one advisor setting up of the Preliminary Creditors’ and then present a different advisor Committee (sec. 22a para. 2 ESUG- as insolvency administrator who will InsO). implement the pre-agreed insolvency plan. In this manner, creditors will be Increased Influence able to save a significant amount of of Creditors on the time, minimizing stakeholder erosion Appointment of Insolvency and improving the prospects of the debtor company to continue as a going Administrators concern. Prior to the appointment of the In any event, the Preliminary Creditors’ insolvency administrators and Committee should ensure that the preliminary insolvency administrators, proposed preliminary insolvency the insolvency court will have to administrators have executed statements request comments from the Preliminary confirming the non-existence of conflicts Creditors’ Committee (sec. 56a para. of interest. This enables the insolvency 1 ESUG-InsO). The Preliminary courts to appoint preliminary insolvency Creditors’ Committee can then provide administrators within hours. 2 Number 1257 | 14 November 2011 Latham & Watkins | Client Alert Facilitation of Debt-Equity- and provides greater legal certainty to Swaps creditors willing to swap their debt for equity. A Debt-Equity-Swap that lacks The ability of creditors to convert their the consent of the respective creditors is debt into equity has been significantly not permitted under the new insolvency improved by the insolvency reform. rules (sec. 225a para. 2 s. 2 ESUG-InsO). The facilitation of Debt-Equity-Swaps The general form requirements gives creditors more incentive to invest applicable to corporate measures, in in the debt of stressed and distressed particular notarization requirements, companies as it enables them to do not apply if such measures form participate in the economic upside of part of the insolvency plan (sec. 254a such companies as shareholders. para. 2 ESUG-InsO). Subscriptions for In Germany, Debt-Equity-Swaps are shares in Debt-Equity-Swaps pursuant implemented through share pledge to an insolvency plan will therefore be enforcements or capital decreases possible without notarization pursuant to followed by capital increases subject sec. 55 para. 1 GmbHG. to an exclusion of the old shareholders’ One crucial feature of Debt-Equity- subscription rights and a contribution Swaps under an insolvency plan has in kind of the creditors’ debt. In been added in the last step of the the past, creditors depended on the legislative process: termination and old shareholders’ cooperation for withdrawal rights of third parties are Debt-Equity-Swaps. However, such barred in the case of Debt-Equity-Swaps Debt-Equity-Swaps did not only fail (sec. 225a para. 4 ESUG-InsO). As a on account of a lack of shareholder result, creditors do not face the risk cooperation, but also due to strict that the Debt-Equity-Swaps will trigger German capital contribution rules. change-of-control-clauses thereby Creditors contributing their claims in deteriorating the value of the debtor a distressed financial situation of the company. debtor company faced severe risks of liability
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