DENNIS MICHAEL LYNN, Bankruptcy Judge.
By order dated June 2, 2010 (the "June 2 Order"), the court posed five questions pertinent to the confirmability of the Prepackaged Plan of Reorganization of Texas Rangers Baseball Partners under Chapter 11 of the Bankruptcy Code filed by Debtor (the "Plan")
At the Hearing the court received into evidence exhibits identified as necessary below. In addition, Debtor, the BOC, Express, the Lenders and the Committee argued their positions to the court.
This matter is subject to the court's core jurisdiction. 28 U.S.C. §§ 1334 and 157(b)(2)(L). This memorandum opinion embodies the court's findings of fact
Debtor, a Texas general partnership of which Rangers Equity Holdings GP, LLC ("REHGP"), is a 1% general partner and Ranger Equity Holdings, L.P. ("REHLP" and, together with REHGP, the "Rangers Equity Owners"), is a 99% general partner,
The Lenders are creditors of HSG in an amount in excess of $525,000,000. Debtor has guaranteed and pledged its assets to secure $75,000,000 of that amount.
Debtor has not been profitable, at least since its acquisition by Hicks in 1998. During subsequent years its cash flow shortfalls were covered by advances by Hicks which by 2008 totaled over $100,000,000. In 2008, Hicks determined that he could not continue to advance funds to support Debtor, and he initiated a process that ultimately led to an agreement to sell the Rangers to Express. Moreover, as a result of HSG's troubles, the loans from the Lenders fell into default in March of 2009 due to the failure of HSG to pay an installment of interest.
In the meantime, to cover operating shortfalls and obtain other assistance, Debtor entered into certain agreements with an affiliate of the BOC. Over the period ending with commencement of this chapter 11 case, Debtor borrowed in excess of $20,000,000 pursuant to those agreements.
In addition to the rights of the BOC as established by the agreements referred to in the preceding paragraph, Debtor is limited by the Major League Constitution (the "MLC"), the document governing major league baseball franchises, as to, inter alia, to whom it may sell the Rangers. It is the position of the BOC (with which Express and Debtor concur) that the MLC and the prepetition agreements respecting financing and other assistance that Debtor has entered into bar any sale of the Rangers not approved by the BOC and the requisite percentage of owners of other major league baseball franchises.
Exercising the rights of approval under section 4.4.2(b)(i), Chase, acting for the Lenders, declined to approve sale of the Rangers to Express. It is the position of the Lenders that one or more alternative purchasers exist who would pay more for the Rangers than will Express under the Assets Purchase Agreement between Debtor and Express (the "APA").
Faced with an impasse, in that the Lenders would not consent to the sale to Express and the BOC would not agree to seek and consider alternate offers for the Rangers, Debtor filed this chapter 11 case. Upon filing, Debtor also filed the Plan, by which it proposes to consummate the APA. Under the Plan, the Lenders are to be paid $75,000,000 "in full satisfaction, settlement, release, and discharge of ..." their claims. Plan §§ 4.2(b) and 4.3(b). As this is the maximum Debtor can be required to pay the Lenders (Amended and Restated First Lien Credit and Guaranty Agreement (the "Loan Agreement") §§ 7.1 and 7.2), Debtor contends the Lenders are unimpaired under section 1124(1) of the Bankruptcy Code (the "Code")
The Lenders, however, insist that, due to HSG's default, no sale of the Rangers can be agreed to by the Rangers Equity Owners other than through Chase's action. They further argue that payment of the capped amount of $75,000,000 does not equate to unimpaired treatment under section 1124(1) of the Code. Rather, they insist Debtor must continue to fulfill all its obligations under the Loan Agreement, the Pledge Agreement and other documents respecting their loan in order for their treatment under a plan not to effect impairment. As the Plan does not give effect to Chase's right, acting for the Lenders, to
Following initial hearings in this chapter 11 case, the Lenders commenced involuntary chapter 11 cases against REHGP and REHLP. At this writing those cases are pending, and the court has scheduled a status conference in the cases for June 22, 2010. The Lenders have also commenced an adversary proceeding against Debtor on a fraudulent transfer theory respecting one of the assets transferred into Debtor by another member of the HSG family immediately prior to commencement of this case.
Finally, at the suggestion of the court, the parties—inter alia, Debtor, the BOC, the Lenders and Express—have agreed to attempt to mediate the various disputes surrounding sale of the Rangers. The court has appointed Hon. Russell F. Nelms to serve as mediator.
The court, in accordance with the June 2 Order, must now address the following four issues:
The Lenders cite several cases (including one decided by this court) in support of their argument that Debtor must seek out the highest possible economic return for its assets; it is the contention of the Lenders that Debtor has a duty to test the purchase offer of Express in the market place to see if it can do better.
It is an underlying premise of the Code that parties should be allowed to structure their own resolutions in cases respecting how claims and interests will be satisfied from a debtor's estate. See, e.g., In re Smith, 415 B.R. 222 (Bankr.N.D.Tex. 2009) (noting that one of the factors a court must consider when determining whether to abstain from hearing a case pursuant to Code § 305(a)(1) is "whether the debtor and the creditors are able to work out a less expensive out-of-court arrangement which better serves all interests in the case"); In re Colonial Ford, Inc., 24 B.R. 1014 (Bankr.D.Utah 1982). Indeed, the Code itself explicitly contemplates that a class of creditors or equity owners may choose to accept less recovery than the class might be entitled to. Code § 1129(a)(7)(A)(i) excepts from testing under the so-called best interest of creditors (or equity interest owners) test treatment of a class that has been accepted by all members of the class; similarly sections 1123(a)(4) and 1129(a)(9), e.g., specifically allow for a party to agree to less favorable treatment than the party would otherwise be entitled to.
Allowing a class to elect less than optimal treatment is sensible. A class—particularly one of equity interests—may have motives other than maximizing return. For example, a class of trade creditors or equity owners may elect to give up value to maintain business relationships or continue particular management in control of a debtor. In a case such as that at bar, equity owners may favor one purchaser over another because of an interest in maintaining the debtor's location.
In the case at bar, Debtor claims that the Plan provides for full payment of all creditors of Debtor and that 100% of its
The Lenders argue that, upon the occurrence of an event of default, pursuant to section 4.4.1(c)(i)(3)
Debtor and Express (joined by the BOC) respond that section 10.23 of the Loan Agreement
It is not clear to the court that the MLC abrogates the rights of Chase under section 4.4.1(c)(i)(3) such that management of
The court thus concludes that, at this writing, management of REHLP and REHGP continues to speak for those entities. Moreover, the court agrees with Debtor that, given the pendency of the bankruptcy cases of the Rangers Equity Owners, any effort on the part of Chase to enforce its contractual right to control either entity or Debtor would amount to a violation of the automatic stay of Code § 362(a).
Debtor and Express argue that the Rangers Equity Owners, as alleged debtors, owe no duty to anyone that they would not owe a duty to outside of bankruptcy. While this means management of the Rangers Equity Owners is obligated to exercise sound business judgment (see Campbell v. Walker, 2000 WL 19143, 2000 Tex.App. LEXIS 269 (Tex.App.-Houston [14th Dist.] Jan. 13, 2000); see also Trenwick Am. Litig. Trust v. Ernst & Young, L.L.P., 906 A.2d 168 (Del.Ch.2006) ("[T]he business judgment rule protects directors of solvent, barely solvent, and insolvent corporations ....")), the alleged debtors are not fiduciaries for their creditors and, in particular, are not statutory fiduciaries whose acts are subject to the limitations of the Code and control of the court.
In support of this position Debtor points to section 303(f) of the Code. Section 303(f), applicable in involuntarily commenced bankruptcy cases, provides:
Thus, Debtor insists, REHGP and REHLP may proceed without court oversight as they deem proper respecting the Plan so long as their conduct can be justified under the business judgment rule. See Consolidated Partners Inv. Co. v. Lake, 152 B.R. 485, 490 (Bankr.N.D.Ohio 1993) ("By virtue of § 303(f), during the
The court agrees that this is an accurate statement of the law. In the context of the case at bar, however, it is clear that the court should invoke its authority to "order[ ] otherwise" and require that, even prior to entry of an order for relief, REHGP and REHLP manage their sole asset—Debtor—in a fashion consistent with the fiduciary responsibilities of debtors-in-possession. The court therefore by separate order has directed that section 303(f) will not apply in the cases of REHLP and REHGP.
During the Hearing, the parties acknowledged that, without the benefit of section 303(f), an involuntary debtor would have the duty to deal with its property under section 363 as would a trustee. The court thus holds that, as a result of its abrogation in their cases of section 303(f), the Rangers Equity Owners have the same fiduciary duty to their creditors—the Lenders—as would a trustee.
As a result of changes to the Plan announced by Debtor at the Hearing, the issue of impairment is now limited to assessing the treatment of the Lenders and the Rangers Equity Owners.
Debtor argues that, by providing in the Plan for payment of the capped amount of its guaranty ($75,000,000), it has left the Lenders unimpaired under Code § 1124(1). The Lenders, on the other hand, assert that, in order for them to be unimpaired under section 1124(1) they must retain all their rights under the Loan Agreement, the Pledge Agreement and their other credit documents, including their rights under sections 4.4.1(c)(i)(3) and 4.4.2(b)(i) of the Pledge Agreement. This, in turn, according to the Lenders, requires
Section 1124 defines impairment as being any treatment other than treatment as provided by section 1124(1) or (2).
The court in general agrees with these decisions.
The Lenders, however, have rights vis-à-vis Debtor other than just payment of the $75,000,000 for which Debtor is obligated to them.
First, unlike treatment under section 1124(2), section 1124(1) is prospective: section 1124(1) does not require that a plan provide for the cure of defaults—i.e., recreation of the situation as it was before default. Rather it requires that, as of the plan's effective date, an unimpaired creditor be able thereafter to exercise all its rights vis-a-vis its debtor. See Bustop
As the sale of the Rangers will have been consummated at that point, however, the Lenders' rights under the Pledge Agreement will not affect the sale.
Second, the preceding analysis is supported by applying the ordinary rules of statutory construction to Code § 1124. Section 1124 states:
When construing two provisions in such close proximity as subsections (1) and (2) of section 1124, the court must assume the legislature had good reasons for the differences between them. Keene Corp. v. United States, 508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) ("Where Congress includes particular language in one section of a statute but omits it in another... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)). Thus, the fact that Congress provided in section 1124(2) that unimpaired treatment must include cure of most defaults but did not do so in section 1124(1) indicates that the intent of legislators was that unimpaired treatment under the latter provision would include, once that treatment became effective, allowing the class so treated to pursue remedies not otherwise in conflict with the Code, the plan or bankruptcy court orders for defaults existing as of the effective date.
Two illustrations will assist in explaining the court's construction of section 1124(1). A party to an agreement to purchase property of the debtor, which purchaser has a contractual right to specific performance as an alternative to damages, could be treated as unimpaired under section 1124(1) even if the property subject to the agreement were sold during the debtor's case or pursuant to the plan. That creditor would be entitled post-effective date to pursue a claim against the debtor just as it could have absent bankruptcy if the debtor defaulted such that specific performance of the sale agreement had become impossible.
Likewise, a party that is the beneficiary of an ipso facto clause, e.g., giving it rights upon commencement of a bankruptcy case, if treated under section 1124(1) could enforce the ipso facto clause after the plan's effective date to the extent the bankruptcy filing default survived under the parties' agreement. Enforcement of the clause post-effective date, however, could not affect transactions authorized by confirmation of the plan or that occurred in the debtor's case prior to the effective date. Likewise, that the plan provided treatment allowing post-effective date enforcement of the ipso facto clause would not mean its enforcement was allowed for any purposes prior to the effective date, including in connection with acceptance and confirmation of the plan.
Third, to permit Chase, acting for the Lenders, to exercise the rights under section 4.4.1(c)(i)(3) or 4.4.2(b)(i) of the Pledge Agreement prior to the effective date, while Debtor and its owners are in the custody of the court, would give the Lenders a degree of control over the conduct of this case that is inconsistent with the Code and contrary to public policy.
Fourth, in order for Chase to utilize section 4.4.1(c)(i)(3) prior to confirmation of the Plan, it would have to obtain relief from the automatic stay of Code § 362(a). Absent such relief, Debtor may deal with the Rangers as is consistent with the other provisions of the Code and court orders. To conclude that section 1124(1) requires allowing invocation of Pledge Agreement § 4.4.1(c)(i)(3) or 4.4.2(b)(i) prior to the effective date of a plan would be tantamount to requiring, for compliance with section 1124(1), allowing enforcement by a creditor of its "legal, equitable, and contractual rights" prior to confirmation of the plan by the court and the binding effectiveness of that creditor's plan treatment.
Fifth, in the instant case, if the Lenders can utilize section 4.4.1(c)(i)(3) (or section 4.4.2(b)(i)) to block a sale, Debtor, a solvent entity, notwithstanding payment in full of all of its monetary obligations, could only confirm a plan that was acceptable to the Lenders or through cramdown by artificial impairment of another class of creditors. Given the impasse reached between the BOC and the Lenders, that would mean Debtor would have to artificially impair some class of creditors so that it satisfies the requirement for invocation of section 1129(b)(1) of the Code that one impaired class of creditors has accepted the proposed plan (Code § 1129(a)(10)). It would be inconsistent with public policy to construe the Code in a fashion that encourages debtors to deal with creditors by artificial impairment when such creditors could otherwise be left unimpaired.
For the foregoing reasons, the court concludes that treatment of the Lenders, to satisfy section 1124(1), must grant them their rights under their loan documents prospectively. While payment of the $75,000,000 plus interest will satisfy and discharge Debtor's monetary obligations as required by section 1124(1),
Debtor takes the position that, as REHLP and REHGP will retain their interests in Debtor under the Plan, they are unimpaired. Even if the Plan impairs equity, however, Debtor points to the prepetition consent by REHLP and REHGP and urges that the court conclude this amounts to acceptance of the Plan.
In any case, in the case at bar, even if the court assumed that the prepetition approval of the Plan by the Rangers Equity Owners satisfied the requirement of their acceptance of it, the post-petition changes to the Plan require, at a minimum, affording the Rangers Equity Owners the opportunity to change their votes, as required by Code § 1127(d). As modifications already made to the Plan provide for payment of interest to both the Lenders and other unsecured creditors, the return to equity will necessarily be reduced by the amount of that interest not previously provided for in the Plan.
Because the Lenders and the Rangers Equity Owners are impaired, the Plan, even as modified on June 17, cannot be confirmed on the basis that no class of creditors or equity owners is impaired. Moreover, while the impairment of the Lenders may be cured without significant changes to the Plan, that of the Rangers Equity Owners cannot be avoided and they must be allowed to elect whether to accept or reject the Plan. In making that election, the Rangers Equity Owners will have to seek court approval, acting in their fiduciary capacities outside the ordinary course of business.
The court will not direct any changes to the Plan. However, unless the treatment of the Lenders is modified, the Plan (as modified
The court will defer entry of an order formalizing the rulings in this memorandum opinion. The findings and conclusions in this memorandum opinion will be incorporated in any order confirming or denying confirmation of the Plan (including any modified version of the Plan).
Section 6.9 of the Loan Agreement also prohibits Debtor from merging or forfeiting its existence or taking other actions that would effect fundamental changes in its structure.