Updated: Guide To Financial Support Measures Across Europe And The Middle East

Our most recently updated guide includes updates for Germany, the Kingdom of Saudia Arabia and Prague, notably:

Germany

  • Based on the “Guideline for Federal Funding of Production Plants for Borosilicate Tubular Glass and Glass Vials for Use in Vaccine Production”, the BMWi is funding important products for vaccine supply in Germany.

Kingdom of Saudi Arabia

  • The Deferred Payments Programme has been further extended to the end of Q2 of 2021.
  • The Loan Guarantee Programme has been further extended until March 2022.

Prague

  • There is a new COVID support programme for bath houses.
  • The COVID support programme for Culture/Audio Vision has been removed.

UPDATED Global Insolvency Report: Impact of Covid-19 on Insolvency Laws

The most notable changes to our updated guide this week are those impacting Germany where:

  • The suspension of the obligation to file for bankruptcy has expired.
  • A new preventive restructuring framework for enterprises has been introduced (implementation of the European Directive on the Preventive Restructuring Framework).
  • The suspension of the obligation to file for insolvency has expired.

All other jurisdictions remain largely the same.

Please click here to see our updated guide.

Virgin Active Restructuring Plan approved in a disappointing week for landlords

The pandemic and various lockdowns have been tough on the landlord community. The last few days have not made that any easier. First, the New Look decision dismissed the challenge mounted by a number of landlords (see our blog here ). Then on 12 May 2021 the landlord community was dealt another blow by the outcome of the restructuring plan (“RP”) in Virgin Active.  Today, landlords faced further disappointment when the court dismissed all but one of the landlords’ unfair prejudice CVA challenge grounds, in the Regis case.

In the Virgin Active case, a number of landlords voted against the Virgin Active RP and not all plan classes achieved the 75% in value required for creditor approval. On application to court, those classes who did not achieve creditor approval were “crammed down” and the RP approved. The objecting landlords stood not only to have the debt owed to them written off, but to accept much reduced or no rent going forward (although there was no attempt to remove their forfeiture powers so could exit the leases if they wished and rolling break rights were given to those most badly affected).

However, the cram down is a key feature of the new RP procedure and applying the appropriate test, those crammed-down landlords would not have done any better when compared to an alternative insolvency procedure- they were “out of the money” either way – therefore the court attached little weight to the fact that a large number of landlords voted against the plan. Accordingly this provides a living example of the court applying the law in practice. It ensured that those “in the money” had the say on what happens to the company, irrespective of the fact that certain voting thresholds were not met.

The cram down feature of an RP is one of the elements that distinguishes it the most from a CVA. In recent times CVAs have of course played a large part in retail and leisure restructurings. Invariably, these CVAs involve a significant body of landlords who can have a significant sway on the outcome and if the 75% majority in value is not reached, the CVA proposal fails.

Up to this point however, an RP has not always been the obvious solution due to additional costs, lack of caselaw on cross class cram down in RPs and the fact that the court has an ultimate discretion to refuse to sanction the RP (even if all creditor classes approve).

The Virgin Active RP now establishes some specific (albeit non-binding on other High Court decisions) precedent in terms of fairly cramming down dissenting landlords in RPs.In cases where the votes of landlords not “in the money” (but who represent a large part of the creditor body in value) are likely to thwart the approval of a CVA, the appetite for using an RP could be strongly fuelled by this judgment.

We will examine the findings in Regis in our next blog, before considering in more detail what the impact of all these recent fairness challenges (New Look, Regis and Virgin Active) could mean for retail CVAs in practice.

A New Look for retail company voluntary arrangements (“CVAs”)?

Empty street in Marylebone district, London, EnglandOn Monday, Zacaroli J handed down his eagerly anticipated judgment in Lazari Properties (2) Limited (and others) v New Look Retailers Limited (and others).

The New Look landlords challenged the New Look CVA and raised a number of arguments which some believed could be the end of CVAs as we know them. In particular, the New Look landlords argued that CVAs had gone far beyond the use for which they had been intended and sought to challenge the jurisdictional basis upon which some CVAs are implemented.

The key arguments were that:

  • the proposal did not constitute a compromise or arrangement within s1(1) of the Insolvency Act 1986 because it included multiple “arrangements” on different terms with different groups of creditors (i.e. splitting landlords into classes A, B1-6, C etc, who are offered different terms as is common in retail CVAs);
  • the CVA did not provide sufficient give and take (e.g. profit sharing or some other ability for landlords to share in the upside);
  • the CVA was unfair because the requisite majorities at the creditors meeting were met with the votes of unimpaired creditors; and
  • the granting of a new right to New Look to terminate the leases was an improper interference with the landlords’ proprietary rights.

Continue Reading

UPDATED Global Insolvency Report: Impact of Covid-19 on Insolvency Laws

The most notable changes to our updated guide this week are those impacting Japan where the period of the expanded Employment Adjustment Subsidy has not been extended beyond April 30 2021 and Germany, where the Suspension of the Obligation to File for Bankruptcy expires on 30 April 2021.

All other jurisdictions remain largely the same.

Please click here to see our updated guide.

Updated: Guide To Financial Support Measures Across Europe And The Middle East

Our most recently updated guide includes updates for the Czech Republic, France, UK, Italy, Germany, the Slovak Republic and the UAE, notably:

Czech Republic

There have been updates to:

  • The deadline for submitting applications for the COVID-lease programme has now expired.
  • A new COVID-2021 programme has been introduced.
  • A new COVID Uncovered Costs programme has been introduced.
  • There has been an update to the Compensation Bonus Scheme.

France

A new state-guaranteed equity loans and subordinated bonds system has been introduced that is available to small and medium-sized enterprises and intermediate-sized enterprises (provided they meet certain criteria).

Germany

Updates regarding improvements to Bridging Aid III and the new equity grant that will be provided under Bridging Aid III.

Italy

There has been an update to the Revolving Fund for exports.

Slovak Republic

There have been updates to:

  • The Deferral of Instalment Payments
  • The Anti-Corona Guarantee Programme 2 – State guarantee for loans provided by commercial banks
  • The state’s contributions to cover salaries
  • The state’s contributions to salaries
  • The state’s contributions to cover lost revenues
  • Contribution to income
  • Social benefits for persons in quarantine or isolation
  • Temporary protection from insolvency until 31 December 2020 and from 01.01.2021

United Arab Emirates 

  • The ADGM Support Initiatives expired on 25 March 2021 and have not been extended.
  • There are also updated regarding the Emirate of Sharjah Economic Stimulus Package.

UK

There have been significant updates and extensions to various schemes (please see the guide for more information).

You Shall Not Pass – Bankruptcy Court in Intelsat Grants Debtors’ Motion to Seal Hearing

On April 19, 2021, the United States Bankruptcy Court for the Eastern District of Virginia granted a motion (the “Seal Motion”) filed by the Intelsat S.A. debtors (the “Debtors”) to seal the hearing on the Debtors’ motion to extend exclusivity and motion to compel plan mediation.  Although bankruptcy courts routinely grant motions to seal content included in pleadings, it is uncommon for a court to prevent certain parties, or the general public, from attending a hearing.  This article reviews the Debtors’ unusual request.

The Facts

Confidentiality has been of the utmost importance to the Debtors since their chapter 11 bankruptcy cases were filed on May 13, 2020.  In order to ensure that confidential information would not be jeopardized during plan negotiations and related discovery, the Debtors and key constituents entered into a confidentiality agreement in September 2020.  Subsequently, in December 2020 the Debtors negotiated and received court approval on a protective order guarding against the disclosure of confidential information.

Following these protective measures, the Debtors entered into a plan support agreement with certain creditors and filed a proposed plan of reorganization on February 12, 2021.  However, not all creditors consented to the proposed plan – of note, certain creditor groups holding several tranches of the Debtors’ prepetition notes formally objected to the proposed plan.  The Debtors engaged in negotiations with these creditor groups, and the Debtors were forced to file a motion to extend exclusivity and a motion to compel plan mediation when plan negotiations stalled.

Objections to both the motion to extend exclusivity and the motion to compel plan mediation were filed, and the Debtors filed their Seal Motion in which they argued that they needed to include sensitive, non-public information in their reply briefs and requested (a) that replies filed in support of the motions be sealed, and (b) that the hearing on the motions should be sealed.  In other words, only key creditors and parties in interest would be permitted to listen to the hearing on Zoom.

Legal Justification

Pursuant to section 107(b)(1) of the Bankruptcy Code, courts may protect entities from potential harm that might result from the disclosure of certain confidential information, specifically “trade secret[s] or confidential research, development, or commercial information.”  Courts have held that protection may be necessary if the movant proves that one of these confidential information categories needs to be protected.

Section 107(b)(1) confidentiality protection is often based upon the equitable powers granted pursuant to section 105(a) of the Bankruptcy Code, which gives courts the power to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.”  In addition, Bankruptcy Rule 9018 sets forth procedures for a party to protect its confidential information by providing that “the court may make any order which justice requires … to protect the estate or any entity in respect of a trade secret or other confidential research, development, or commercial information.”

The UST Objection

The Office of the United States Trustee (the “UST”) objected to the Debtors’ request to seal the entirety of the hearing related to the exclusivity and plan mediation motions (importantly, not the Debtors’ request to redact its replies) on two grounds.  First, the UST asserted that there is a general presumption that court hearings should be public.  This commonsense argument focused on the Debtors’ willingness to seek relief under chapter 11 of the Bankruptcy Code in a court where court filings are typically open and available to the public.  Second, the UST suggested that sealing the entire hearing would likely be unnecessary and that the Court should therefore instead only seal those portions of the hearing that involved confidential information.

The Court’s Holding Granting the Motion to Seal

The Court overruled the UST’s objections and granted the Debtors’ request to seal the hearing to the extent confidential information would be discussed.  In granting the Seal Motion, the Court noted that it would be cumbersome and time-consuming to flip the hearing from public to private, and vice versa, on the electronic Zoom platform.  And, although the hearing was sealed, the Court instructed the Debtors and the other parties that were permitted to attend to submit a redacted transcript of the hearing as soon as possible.  Furthermore, during the second day of the hearing, the Court opened up a portion of the hearing to the general public once confidential information was no longer at risk of being disclosed.  Ultimately, the Court granted the Debtors’ motion to extend exclusivity and motion to compel plan mediation.

Takeaways

Filing a motion to seal a pleading or a portion of a pleading is relatively common practice in bankruptcy proceedings.  However, prohibiting all parties from simply attending a court hearing is a bit unusual.  Nevertheless, the Intelsat case, as well as the earlier decision in In re Health Diagnostic Laboratory, Inc., No. 15-32919 (KRH) (Bankr. E.D. Va. Mar. 24, 2021), demonstrate that such relief is achievable.

Nonetheless, given the public access concerns raised by the UST, counsel and their clients should understand that such relief may be the outlier.  Indeed, counsel is wise to educate their clients who are contemplating filing for bankruptcy that such filings will make many of the company’s, and their directors’ and officers’, dealings public knowledge.

 

The “Debt Respite Scheme” Regulations: More Delay for UK Landlords

Town HousesFrom 4 May 2021 individuals will be able to apply for a moratorium that will provide a breathing space from creditor action.  Our property litigation team have produced this alert considering the impact of  the new regulations and what they mean for landlords.

Whilst the regulation will primarily impact those involved in residential lettings, the alert is also relevant to commercial landlords who let property to individuals.

UK Government Consults With Landlords and Tenants on Potential Options for Dealing With Rent Arrears

Empty street in Marylebone district, London, EnglandThe UK government has launched a consultation inviting views from stakeholders on options for dealing with rent debt when the existing prohibitions on forfeiture, CRAR proceedings and winding-up petitions end on 30 June 2021.

Responses to the consultation can be made here and although participation is voluntary, completing the survey will ensure that the government’s decision as to how it will manage the exit route following the expiry of the temporary measures at the end of June will reflect the interests of many, rather than the few.

Our alert sets out in more detail the information that the UK government is seeking views on, what landlords and tenants should be doing now, and how our team can help you.

Should you wish to discuss the impact of this on your business, please contact one of our team of specialists, who will be able to assist in understanding:

  • How to manage existing rent debt with your landlord or tenants in accordance with the Code of Practice
  • The impact on your business if your landlord or tenant will not negotiate
  • The impact of the options proposed by the government on your business, and how to respond to the survey

Pre-Pack Sales to Connected Parties – FAQs (UK)

From 30 April 2021, an administrator will be unable to complete a sale of a substantial part of a company’s property to a connected person without either the approval of creditors or an an independent written option.

Our new alert considers the impact of the new regulations in practice, which apply to both pre-packs and post-packs that take place eight weeks of an administrator’s appointment answering questions such as:

  • How does the administrator assess whether the evaluator has the relevant knowledge, experience and independence?
  • What is a substantial disposal?
  • What is the administrator’s liability for breach of the regulations?
  • What if there is more than one sale?
  • Who is a connected party?

 

LexBlog