Bankruptcy is a high-stakes game for creditors and debtors. Understanding a Chapter 11 reorganization process steps is critical for related parties looking to protect their interests.
Understanding bankruptcy becomes especially crucial during economically challenging times. Directors and officers of distressed companies may be hesitant to consider bankruptcy because of its negative connotations: damage to reputation, credit, and self-image. Therefore, they may be overly optimistic when communicating with suppliers, customers, lenders, and employees and avoid mentioning bankruptcy. However, dwindling liquidity, near-term maturities, and potential covenant breaches may mean a Chapter 11 reorganization is far more preferable than an even worse fate: liquidation in Chapter 7.
A Chapter 11 reorganization provides many benefits for troubled companies, including much-needed relief from unsustainable debt levels, the ability to unravel burdensome contracts, and breathing room to develop a plan. Once a debtor and its creditors agree on a plan to reorganize, the business receives a fresh start with a new balance sheet aligned with current operational realities.
Understanding the hidden agendas and shifting motivations of both debtors and creditors is essential if you ever experience bankruptcy in the future, whether you are a part of the management team leading a distressed company, a vendor with unpaid invoices due from a company entering bankruptcy, or an investor seeking an opportunistic bargain.
Typically, corporations or partnerships file for Chapter 11 bankruptcy, though individuals can use it as well. With this type of bankruptcy, debtors propose a plan of reorganization to pay creditors over time.
Chapter 11 stops creditor collection efforts, facilitates negotiations to settle debts and can even allow a business to get new financing on better terms. The goal is to keep your business afloat and keep creditors at bay while you restructure your debt obligations.
Chapter 11 is fundamentally different from Chapter 7, the other option for a company that is in too much debt to continue doing business. In a Chapter 7 bankruptcy, rather than reorganizing to try and save the business, the business is shut down and its assets are sold, with the proceeds distributed to creditors.
For all its challenges, Chapter 11 offers some benefits. Here are some of the most important:
Chapter 11’s disadvantages include:
There are two groups to consider in bankruptcy: the debtor and its creditors. A company that files for bankruptcy is referred to as a “debtor,” and any entity—or person—who has claims against that debtor is referred to as a “creditor.” For companies with multiple subsidiaries, each legal entity must file a separate bankruptcy petition, thereby creating a group of debtors with bankruptcy cases typically jointly administered by a Bankruptcy Court. However, each debtor’s group of creditors is treated separately.
A debtor begins a bankruptcy case by filing a bankruptcy petition with a Bankruptcy Court, a specialized federal court that handles a large volume of consumer and business bankruptcies each year. After following the formal procedures in its bylaws (e.g., board resolution or shareholder vote) to take this extraordinary step, a company can enter bankruptcy by filling out a short form and paying a relatively small fee. Insolvency, meaning total liabilities being greater than total assets (or generally not paying debts as they come due), is not required.
The petition date is important. The bankruptcy process focuses on prepetition creditors, meaning holders of debts, claims, and other liabilities arising before the bankruptcy petition date. With rare exceptions, debtors are prohibited from paying any prepetition creditors outside of the bankruptcy process. On the other hand, post-petition creditors receive special protections to encourage customers and suppliers to continue doing business with a debtor during bankruptcy.
The central element of a Chapter 11 bankruptcy is the creation of a plan to repay creditors all or part of what is owed. Once the bankruptcy court approves this, the business still has to repay its remaining debts but the legal part of the bankruptcy process is essentially over.
The process begins with the business filing a petition for bankruptcy protection in federal bankruptcy court. Creditors can also file an involuntary bankruptcy to force a business not meeting its obligations into court to cut a deal.
Once the court accepts the petition, creditors must end collection efforts. That includes evictions, foreclosures, lawsuits, property seizures and requests for payment. This automatic stay of collections lasts for the duration of the case, although the court may lift it if a creditor asks. The business seeking protection also has to submit details about its debts, assets, income and expenses.
After filing a voluntary or involuntary petition, the business is considered a “debtor in possession,” which means it retains control of its assets while undergoing Chapter 11. This is unlike other chapters of bankruptcy, which appoint a bankruptcy trustee to take control of the business and its assets. But the debtor in possession must perform all of the duties of a trustee. These duties include, among others, accounting for property, examining and objecting to claims, and filing informational reports.
As a debtor in possession, a firm can get new loans through debtor-in-possession financing, which may be cheaper than any the firm could get before the filing. This can help keep the organization afloat while it undergoes bankruptcy. Even more help can come from the ability of a business in bankruptcy to unilaterally cancel leases and other contracts that are costing too much.
With the court’s approval, the business can also raise money for operations by selling underused assets, including those that may have been burdened with liens. The entire business can even be sold.
Not all debts can be discharged this way. For example, sole proprietors seeking Chapter 11 may be held personally responsible for the business’s debts since a sole proprietorship doesn’t exist separately from its owner(s), like a corporation. In some cases, the personal assets of members of partnerships may be used to pay creditors. When that happens, only personal bankruptcy can discharge the debts. Shareholders of corporations, on the other hand, are personally shielded from creditor actions.
Sometimes the court converts a reorganization bankruptcy to a Chapter 7 liquidation proceeding. This can happen if a creditor successfully claims managers aren’t running the business properly, have no chance of continuing operations or are misusing assets. The court can also simply dismiss the case, exposing the business to its creditors again. And even if not converted to Chapter 7 or dismissed, some Chapter 11 proceedings still result in the business closing its doors and liquidating rather than reorganizing.
All this can take a long time. A filer has 18 months to file a reorganization plan and up to 20 more months to get creditors to accept it. As a result, while a Chapter 7 liquidation can be resolved in a few months, a typical Chapter 11 can take six months to two years.
Chapter 11 is also expensive. There’s a standard $1,167 case filing fee and a $571 miscellaneous administrative fee. In addition, filers have to pay quarterly court fees ranging from $325 to $30,000, depending on how much the filer has paid out during the quarter, for the duration of the case.
The complexity of Chapter 11 cases also leads most filers to hire bankruptcy attorneys to represent them and other experts to support the process, significantly adding to the cost.
The linchpin of the entire process is the business’s creation of a reorganization plan, including a proposal for how much to pay each creditor. After the plan is presented to the court, the business meets with a court-appointed committee of major creditors. At this get-together, called a Section 341 meeting, a business representative has to answer, under oath, creditors’ questions about the business.
Next, creditors submit their desired modifications to the plan, which may be extensive. After some back and forth, the court approves an often-heavily modified version. Then creditors get to vote. If two-thirds accept the plan, the court confirms it and the legal part of the bankruptcy is over.
After this process, the debts are considered discharged and are replaced by the debts confirmed by the court. The business has to make the payments set forth in the plan, but creditors have to accept the plan, even if they will get less than they were originally due.
In the US, debtors are treated more favorably than in countries with laws prioritizing liquidation over reorganization. Inherent in the structure of the Bankruptcy Code is the idea that reorganization is more advantageous than liquidation because it preserves businesses that create jobs, provides valuable goods and services, pays taxes, and benefit communities. By reorganizing under Chapter 11, debtors are given a second chance while creditors receive higher recoveries than in liquidation.
The overarching goals of a Chapter 11 reorganization are to:
Throughout a Chapter 11 reorganization, a debtor continues to operate in the ordinary course of business. Any activities outside of the ordinary course of business, such as selling the entire company or raising post-petition financing, require Bankruptcy Court approval.
The debtor uses its breathing room as a time for turning around its operations, restructuring its balance sheet, and attempting a return to solvency. During the bankruptcy process, the debtor receives an exclusive period for proposing a reorganization plan to its creditors, and the creditors then receive an opportunity to vote on the debtor’s plan. If the creditors vote to accept the plan, then the plan is presented to the Bankruptcy Court for confirmation. Plan confirmation allows the Bankruptcy Court to verify that the plan satisfies the requirements of the Bankruptcy Code and other applicable laws. While the Bankruptcy Court does not propose the plan or dictate its contents, it can deny confirmation even if creditors vote overwhelmingly to approve the plan. If the creditor’s vote to reject the plan or the Bankruptcy Court denies confirmation, the debtor must begin again.
While the Bankruptcy Code allows the Bankruptcy Court to extend a debtor’s exclusive period for proposing a plan and soliciting votes, the 2005 amendments to the Bankruptcy Code created a maximum period of 18 months (20 months including soliciting votes). Once a debtor loses its exclusive period for proposing a plan and soliciting votes, then any creditor may offer a plan, leading to multiple plans being solicited for votes. Since numerous plans typically create confusion and prolong the bankruptcy process, there is a strong incentive for a debtor and its creditors to strike a deal before the debtor loses exclusivity.
While there is a wide variety of motions, objections, notices, applications, affidavits, orders, and other filings in a bankruptcy case, the broad outline of how Chapter 11 transforms a distressed company into a reorganized company is as follows:
On the petition date, all of the debtor’s assets become part of that debtor’s estate. Possession is irrelevant, and assets may be anywhere, including in possession of creditors. The Bankruptcy Code contains multiple provisions to preserve value for the debtor’s estate.
As its name suggests, an automatic stay arises automatically on the petition date. The automatic stay protects a debtor from collection efforts by creditors in the post-petition period. It is one of the primary reasons why debtors file for bankruptcy. To avoid a free-for-all among creditors, prevent favoritism, and allow a fair resolution of disputes, the automatic stay forbids a debtor from paying any creditors for prepetition claims, debts, or liabilities. In many cases, such prepetition liabilities will not be paid until the debtor emerges from bankruptcy.
Willful violation of the automatic stay is treated very seriously by Bankruptcy Courts. Willful does not refer to whether the creditor knew that its action violated the automatic stay; rather, willful means that the creditor knowingly took action, meaning that it was not accidental. In particular, creditors should be careful not to implement setoffs—offsetting debts due from a customer with amounts (e.g., refunds) due to that customer—to avoid inadvertently violating the automatic stay. In general, it is better to ask permission from the Bankruptcy Court than to seek forgiveness later.
Under certain circumstances, a creditor can formally request that the Bankruptcy Court “lift” the automatic stay concerning specific assets so that the creditor can take action. For example, the Bankruptcy Code allows the automatic stay to be lifted if the specific assets, such as unused equipment or surplus land, are unnecessary to the debtor’s reorganization.
Another way that the Bankruptcy Code protects the debtor’s estate is through voidable preferences. While the automatic stay provides post-petition protection of the assets in the debtor’s estate, voidable preferences target prepetition transfers. A Bankruptcy Court may void a prepetition transfer of property to a creditor on account of an antecedent debt made while the debtor was insolvent, that enables the creditor to receive more than it would in the bankruptcy case. There is a rebuttable presumption of insolvency during 90 days prior to the petition date (one year for insiders). Therefore, all transactions occurring within the 90 days prior to the petition date are typically scrutinized to ensure that certain creditors did not receive favorable or preferential treatment to the detriment of all other creditors.
The debtor must initiate preference litigation and bears the burden of proof for showing that the prepetition transfer to the creditor meets the definition of a voidable preference. Then, the creditor bears the burden of proving elements of its defenses, if any. Key defenses include contemporaneous exchange, new value exception, and ordinary course of business. Creditors should consult a qualified bankruptcy attorney when facing preference litigation.
In order to pursue the goal of providing a fair and equitable distribution to creditors, the Bankruptcy Code determines a priority of payment for creditors by categorizing similarly situated creditors into classes and then prioritizing the classes. Even if a distressed company never enters bankruptcy, its creditors’ behavior outside of bankruptcy is often heavily influenced by their expectations of this priority of payment. As such, out-of-court workouts often occur in the shadow of bankruptcy.
The Bankruptcy Code provides for payment first of debtor-in-possession (DIP) loans, a special kind of post-petition financing that typically enjoys a super-priority status above other claims. Generally, the DIP loan is funded by the first lien secured lenders since they often want to maintain their position of control in the bankruptcy process, but sometimes, a new investor gets involved. DIP lenders with super-priority status on the hierarchy of debt must be paid in full before first-lien creditors receive any recoveries. Then, the prepetition secured claims are paid, then unsecured claims, and finally, equity interests. Absent consensus, creditors ranking lower in priority generally cannot be paid until those before them are paid in full. This is known as the absolute priority rule. There may be subdivisions among the various levels, such as the first lien and second lien secured debt, tranches of unsecured debt, or preferred and common equity. This priority of payment is often referred to as a “waterfall,” where the distributable cash fills the highest-priority bucket first until the corresponding creditors receive 100% recoveries, then the next bucket, and so on until the distributable money runs out.
Another critical concept to understand is the fulcrum security. This class of claims is most likely to be converted to equity ownership during a restructuring. When voting on a reorganization plan, creditors receiving full recoveries are deemed to accept, while creditors obtaining no recoveries are considered to be to reject. Therefore, the class of claims obtaining partial recoveries—the fulcrum security—are often the real decision-makers regarding plan approval. Creditors holding the fulcrum security are partially in-the-money and partially out-of-the-money, so their recoveries are likely to involve equity in the reorganized company that emerges from bankruptcy. The fulcrum security may change over time, particularly in cyclical industries and businesses affected by volatile commodities.
Vendors are only one type of unsecured creditor in the general unsecured class. There can be thousands or tens of thousands of other unsecured creditors in a large bankruptcy case in the same bucket. Since, in general, all unsecured creditors must receive the same rate of recovery on their prepetition claims, it can be helpful for vendors to monitor developments affecting other unsecured creditors. For example, the trading price of an unsecured bond may indicate the recovery rate for all unsecured creditors, including vendors.
There are many types of unsecured creditors which may include:
Creditors must beware of harassing customers for payment of prepetition amounts during the post-petition period because they can become liable for violating the automatic stay. If the creditor engages in “self-help,” there could be severe consequences, including penalties imposed by the Bankruptcy Court for violating the automatic stay.
If a customer goes bankrupt, suppliers can consider monetizing their bankruptcy claims by selling them to a claims trader. While this will only ensure a partial recovery, it will allow suppliers to gain faster access to cash and avoid the time and expense of participating in the bankruptcy process.
Other best practices for vendors if their customer enters bankruptcy include:
Lastly and most importantly, vendors should review the debtor’s disclosure statement, which is meant to provide adequate information for all creditors to evaluate the treatment of their claims, understand the company’s situation prepetition and post-petition, and make an informed decision regarding how to vote on the plan of reorganization proposed by the debtor.
It is essential to seek advice from qualified bankruptcy professionals when customers enter bankruptcy. Turnaround professionals can help you understand your position and the situation at large to help you best navigate the bankruptcy process, such as:
A company often has certain suppliers who are essential to its operations. In the months leading up to a bankruptcy filing, a troubled company’s vendors may become aware of the company’s distress as traditional payment patterns change. Suspicious suppliers may begin restricting the supplies and services until the company makes catch-up payments. In dire circumstances, key suppliers will even cut off the company entirely, exacerbating its distress. In such cases, the company may try switching to other vendors willing to allow more favorable payment terms. Sometimes, however, there is no substitute. In bankruptcy, an essential supplier with no substitute is known as a critical vendor.
A critical vendor has substantial leverage in negotiating recovery of its prepetition claims because it can simply refuse to provide additional supplies and services that the company desperately needs to continue operating. However, there is a high burden of proof: The debtor must have an essential need for the vendor, and there cannot be any acceptable substitute suppliers.
Seeking critical vendor status can be highly beneficial for an unsecured creditor because the Bankruptcy Court can approve payment of its prepetition claims outside of a reorganization plan. Rather than wait for a partial recovery at the end of the bankruptcy case, a critical vendor can receive full recovery at the beginning of the case for its unpaid, prepetition invoices. Without Bankruptcy Court approval, the automatic stay would forbid the debtor from paying its critical vendors.
Vendors should also evaluate whether it is beneficial for them to serve on an Official Committee of Unsecured Creditors (UCC). The UCC, which is often called the “watchdog” of the bankruptcy process, can play an integral part in shaping the course of a particular case. The UCC represents a wide variety of unsecured creditors and is a critical driving force in determining the direction and success of a debtor’s bankruptcy case. The US Trustee appoints a diverse mix of volunteers from among the debtor’s top 20 largest creditors to serve on the UCC.
The debtor pays for lawyers and advisors to advise the UCC. While individual unsecured creditors have rights to be heard in the Bankruptcy Court, they must pay for their own attorneys. The Bankruptcy Code authorizes the creation of a UCC to acknowledge that it would be unwieldy and costly for hundreds or thousands of unsecured creditors to file separate objections to the debtor’s motions, appear before the Bankruptcy Court during hearings, and negotiate a plan of reorganization.
Instead, on behalf of all unsecured creditors, the UCC negotiates with the debtor and its secured lenders to create a plan of reorganization to exit Chapter 11. Although the UCC may recommend that unsecured creditors vote to approve or reject the debtor’s proposed plan, each unsecured creditor makes independent voting decisions.
Advantages | Disadvantages |
Expressing opinions collectively is better than individually | Making a significant time commitment |
Influencing decisions by the debtor and Bankruptcy Court | Acting as a fiduciary to the unsecured creditors as a whole |
Having costs reimbursed by the debtor | Maintaining confidentiality of information |
Accessing confidential information and staying abreast of case developments | Becoming restricted from claims trading |
Networking with other creditors involved in the same industry | Being distracted from day-to-day operations |
Potentially strengthening the relationship with the debtor after reorganization | Potentially harming the relationship with the debtor after reorganization |
Bankruptcy often presents an opportunity for qualified bidders with access to cash to purchase quality assets at a bargain price. Before considering a distressed purchase, a savvy investor must diagnose whether the distress was primarily caused by the industry, company, or management. Best to understand the root problems before evaluating potential turnaround solutions. If a potential buyer believes the debtor’s troubled operations can be saved, then it is important to acknowledge the amount of time, liquidity, and risk involved in the turnaround effort. A cheap price may not be a bargain but rather may reflect the risk of “catching a falling knife.”
Selling some or all of a debtor’s assets may be an attractive alternative to emerging as a standalone company pursuant to a plan of reorganization, especially if the debtor and its creditors are deadlocked or the company is not viable enough to remain independent. Section 363 is the part of the Bankruptcy Code that provides a way for a debtor to sell some or all of the assets of its business. As per the Bankruptcy Code, only the debtor can propose a so-called “363 sale.” In a 363 sale, assets are generally sold free and clear of all liabilities, claims, and debts, and there are usually cash-only bids. All sales are final, with limited representations, warranties, and escrows. There are no refunds. The goal of a 363 sale is to obtain the highest and best offer for the assets being sold so that the creditors can receive fair and equitable recoveries.
Ultimately, distressed M&A is a complex topic that is worth exploring in greater detail in a future article.
By working together, parties can enhance overall value in a reorganization so that the debtor gets a fresh start and creditors receive greater recoveries than in liquidation. Bankruptcy is supposed to be a collaborative process that is designed to build consensus. However, it can be challenging to rebuild trust and credibility in order to agree upon an exit strategy. Amid uncertainty and volatility, fatigued parties who view bankruptcy as a zero-sum game can frustrate the process and destroy value for everyone.
Restructuring experts provide clarity during times of disruption. By understanding the bankruptcy process from multiple perspectives, restructuring experts help navigate multi-party negotiations to reach a successful outcome. Restructuring experts serve as a reliable bridge between financial, legal, and operational issues to improve inefficiencies, strengthen financial reporting, fortify internal controls, address liquidity hurdles, and provide guidance throughout the turnaround process. Experiences from prior cases enable restructuring experts to anticipate issues, predict outcomes, and avoid common pitfalls. By developing creative strategies and resolving disputes, restructuring experts enhance value for both debtors and creditors.
Chapter 11 is not a cheap or easy refuge. Reorganization bankruptcies have a lot of moving parts and can cost far more and take vastly longer than the more straightforward, final remedy of a Chapter 7 liquidation. Chapter 11 doesn’t erase all debts and it’s not suitable for all businesses. But in the right cases, it can be a viable way for financially troubled firms to find a path through a difficult time. Before choosing the type of bankruptcy to file, it’s wise to speak with a bankruptcy attorney and consider all of your options for debt relief.
WE ARE HERE TO HELP WITH YOUR CHAPTER 11 BANKRUPTCY
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If you are in need of legal representation in a Chapter 11 Bankruptcy matter, Kaba Law Group and our Miami Dade County Chapter 11 Bankruptcy lawyers have the legal experience and dedication you need to represent you. We will help you determine who was at fault and hold them accountable for compensating you for the total value of your damages, plus attorney’s fees when applicable. We help you get the compensation that you deserve!
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