The ongoing global financial crisis has resulted in a number of
debt restructuring transactions as a result of companies being
unable to meet with their debt obligations. In distressed
situations, issuers typically seek investor consent to amend
existing terms and conditions, often to relax covenants, reschedule
payments, limit events of default and remove restrictions on
raising further capital.
In two recent High Court cases, noteholder resolutions were
challenged by minority investors whose rights were affected by the
majority's binding decisions. For the first time, the English
courts have attempted to establish the limits of acceptable
practice in the context of consent solicitations through the
judgments in Azevedo v Imcopa [2012] EWHC 1849 (Comm) and
Assénagon Asset Management S.A. v Irish Bank Resolution
Corporation Limited (formerly Anglo Irish Bank Corporation
Limited) [2012] EWHC 2090 (Ch).
Monetary Inducement—The Consent Payment
One strategy frequently employed by issuers to incentivise
noteholders to give their consent to proposed changes is known as
the "consent payment".
A consent payment is a payment of cash or other consideration by
the issuer to noteholders in exchange for noteholder consent to
amend the existing terms and conditions of the notes. Consent
payments have survived judicial scrutiny in the US, where it has
been held that such payments are generally permissible. However,
prior to the decision in Azevedo, no English court had
directly considered the validity of consent payments under English
law.
The Court's decision reaffirmed the general understanding that
consent payments would be valid if openly disclosed and offered to
all noteholders on an equal basis prior to any noteholder
meeting.
The Facts in the
Azevedo Case. In 2006,
the Imcopa Group of companies issued US$100 million 10.375 per
cent. guaranteed notes due 2009. The group subsequently implemented
a restructuring plan in order for it to service its existing debt.
This gave rise to three successive resolutions amending the terms
and conditions of the notes and postponing certain interest
payments. Consent payments were offered to all noteholders who
voted in favour of the proposed resolutions, and the resolutions
were subsequently passed.
The Claims Made in the
Azevedo Case. The
claimants, two individual investors, subsequently sought
declarations for repudiation and breach of contract, on two main
grounds.
- First, it was argued that the consent payments were in essence a bribe and the noteholder resolutions were therefore invalid under English law.
- Second, it was argued that as payments were made only to certain noteholders, the different treatment of consenting and nonconsenting noteholders violated the fundamental requirement for all noteholders as a class to be treated pari passu and without preference among themselves.
The High Court Judgment in the
Azevedo Case. The Court
held that the consent payments were not fraudulent or illegal as
they had the following characteristics: (i) they were openly
disclosed to all noteholders before the noteholder meeting and vote
took place; (ii) they were payable on an equal basis to all those
noteholders voting in favour of the relevant consent solicitation;
and (iii) each noteholder was entitled and free to vote in favour
of or against the consent solicitation as it saw fit.
Further, the consent payments constituted separate consideration
paid by the solicitation agent to investors, in return for
acceptance of the issuer's offer. The payments were not paid
pursuant to any obligations owed to noteholders under the notes,
nor were they made by the trustee under the terms of the trust
deed. As such, the payments fell outside the scope of the
applicable pari passu contractual provisions. The claim
against the issuer was dismissed.
Negative Inducement—The Exit Consent
Another strategy employed by issuers to incentivise noteholders
to give their consent to such proposed changes is described as the
"exit consent". Using this structure, the issuer offers
noteholders the opportunity to exchange their existing notes for
replacement notes which contain the amendments it is seeking.
In order to ensure that as many noteholders take up the
opportunity to exchange their notes as possible, while minimising
the number of existing notes which are left in issue, the issue of
replacement notes to the exchanging noteholders is made subject to
a requirement that they are also deemed to vote in favour of a
resolution in relation to the existing notes, which strips out much
of their value. The meetings at which such resolutions are approved
are typically held almost contemporaneously with the acceptance of
the tender by the noteholders of their notes.
Any noteholders who do not exercise the opportunity to exchange
are therefore potentially left with notes which are greatly
devalued or, in the worst case, almost worthless.
In a landmark decision, the High Court held in Anglo
Irish that an exit consent approved by an extraordinary
resolution of noteholders was oppressive on and unfair to minority
noteholders.
The Facts in the Anglo
Irish Case. In 2008, faced with a
liquidity crisis and rapidly declining commercial property values,
Anglo Irish Bank was rescued by the Irish Government and was
nationalised in January 2009. In 2010, the Minister of Finance
announced a voluntary restructuring of the bank's debt, which
would be completed by legislative intervention if necessary. The
statement made clear that the subordinated debt holders were
expected to meet a substantial share of the costs involved.
Subsequently, the bank offered to exchange €0.20 of new
notes for each €1 of its existing 2017 subordinated notes.
Noteholders wishing to tender their holdings were also required to
vote in favour of the bank's proposed extraordinary resolution.
Upon being passed, this extraordinary resolution would give the
bank a call right to redeem the notes at a later date at a
redemption amount of €0.01 per €1000 of
notes—significantly less than the €0.20 offered
pursuant to the exchange offer.
The exchange offer was structured so that each noteholder, in
offering notes for exchange, was deemed to have instructed the
relevant agent to proxy vote in favour of the proposed resolution.
In this matter, 92 percent of investors offered their notes for
exchange, and the extraordinary resolution was passed.
The Claims Made in the Anglo
Irish Case. The claimant did not
attend the noteholder meeting, nor did it vote by proxy in respect
of the exit consent. A week after the exchange offer was completed
and the resolution passed, the bank exercised its right of
redemption. The claimant received €170 in payment for a
face value holding of €17 million of notes.
The claimant sought a declaration that the noteholder resolution
was invalid on a number of grounds:
- First, it was argued that the resolution was ultra vires, as under the terms and conditions of the notes, noteholders could not legally sanction what amounted to a complete abandonment of their rights.
- Second, that at the time of the noteholder meeting, the notes were beneficially held by the bank (or for its account) and under the terms of the notes, the corresponding votes should have been disregarded.
- Third, the claimant stated that the resolution was an abuse of power by the voting majority, because it conferred no benefit on the noteholders as a class and that it was oppressive and unfair on the minority as by that point, it could only affect that minority that had chosen not to participate in the exchange offer.
The High Court Judgment in the Anglo
Irish Case. In relation to the first
claim, the Court considered whether the resolution constituted a
complete abrogation of noteholders' rights. While lawyers
representing both sides agreed that it was within the powers of the
meeting to sanction any "abrogation of the rights of
noteholders against the issuer", the claimants argued that the
exit consent went beyond this and constituted a complete
abandonment of noteholders' rights. The Court found (although
"by a narrow margin") that because the noteholder meeting
schedule specifically contemplated that a noteholder meeting might
approve a reduction of principal and interest payable on the notes,
the sanction of the proposed amendments to the notes could not in
themselves be described as a complete abandonment of their
rights.
In relation to the second argument, the Court held that at the
time of the resolution, the tendered notes were in fact
beneficially held by the bank. Under the terms of the trust deed,
the bank was prohibited from voting in respect of such notes. The
noteholder resolution was therefore invalid. In reaching this
judgment, the Court carefully considered the timing of the exchange
offer and consent solicitation. Noteholder offers for exchange were
accepted by the bank a day before the noteholder meeting. At that
point in time, the investors and the bank became bound by a
contract for sale. It followed that, at the time of the meeting,
the notes were beneficially held for the benefit of the bank. The
judge rejected the argument that, on a purposive interpretation,
the ownership should be tested on the date that noteholders decided
to offer their notes for exchange. Accordingly only those
noteholders who had not tendered their notes for exchange would
have been eligible to vote and the votes of the exchanging
noteholders should have been disregarded.
Although the judge's conclusion in favour of the claimants was
based on the exclusion of exchanging noteholders from the voting
process, in recognition of the impact of the Anglo Irish
caseon the wider note market, the Court went on to consider the
arguments relating to the alleged abuse of majority voting power.
The Court took the view that the exit consent was a "coercive
threat", wielded by the issuer and exercised by majority
investors. As such, the Court held that it was unlawful for the
majority to vote in favour of a resolution which effectively
expropriated the minority's rights for nominal consideration.
Despite the wider context of government intervention and
possibility of further losses for noteholders, it could not be said
that the majority voters were acting in the best interests of the
noteholders as a class.
The Impact of the Decision in Anglo
Irish
Because the Court held in favour of claimants in relation to the
second and third claims, it is sufficient to note in relation to
the first ultra vires claim that the judgment indicates
that where an express power is given to noteholders to abrogate
some of their rights, only complete abandonment of those rights is
potentially outside of the powers of such meetings.
In relation to the second claim, the impact of the judgment is
limited in that it is possible to structure an exchange combined
with an exit consent so that the resolution is passed prior to
acceptance of the exchange offer taking place, thus allowing
exchanging holders to vote on the exit resolutions.
The most significant issue arising from the judgment lay in the
discussion of the third claim, that the exit consent constituted an
abuse of power by the majority. Although both sets of lawyers
agreed that the noteholders were under an obligation to act for the
benefit of the noteholders as a whole, they differed in how this
rule was applied to the facts. Counsel for Anglo Irish
focused upon the entirety of the bank's proposal, and primarily
upon the exchange offer to which the exit consent (in the form of
the commitment to vote for the resolution) was attached. In this
context, it was argued that the exchange offer represented
"real value" being offered to noteholders. By contrast,
the claimant's lawyers viewed the effects of the resolution in
isolation from the exchange offer and questioned whether it can be
lawful for the majority to level its aid to coerce the minority by
voting for a resolution which expropriates the minority's
rights under their bonds. It was this argument that the judge found
more persuasive, in forming his conclusion that "the exit
consent is, quite simply, a coercive threat which the issuer
invites the majority to levy against the minority, nothing more
nothing less". On this basis, the sole purpose of the
resolution was not to restructure the notes, but rather to destroy
their value, as a way of intimidating holders into accepting the
exchange offer.
Comment—Use the Carrot, Not the Stick
At first glance, it is difficult to reconcile the decisions in
Anglo Irish and Azevedo. In Anglo Irish,
the judge distinguished the cases on the basis that the incentive
fee offered in Azevedo constituted a financial inducement
to vote in favour of the resolution. By contrast, the exit consent
in Anglo Irish concerned a negative inducement for
noteholders not to reject the exchange offer.
In light of these cases, it seems that under English law, in order
to secure noteholder consent, the carrot is acceptable, but the
stick is not.
According to Azevedo, consent payments are not
necessarily to be construed as resulting in any differentiation of
treatment amongst noteholders, and so are acceptable. This is the
case even though the consenting majority receives a fee in return
for its consent and, in effect, is therefore less adversely
impacted than the nonconsenting minority which receives no payment.
By contrast, as stated in Anglo Irish, the exit consent
approach functions in practice by way of intimidation of a
potential minority to act in a certain way in order to protect
their rights. It is precisely this abuse of power which the law
aims to prevent. A further interesting aspect of the Anglo
Irish judgment was the judge's willingness to imply
equitable principles relating to the protection of shareholders
into the context of a debt security restructuring.
In both cases, it is obvious that emphasis must be placed on
noteholder equality when invoking collective action clauses. Such
equality must be maintained both in the consent solicitation
process and afterwards in the implementation of the ensuing
amendments. If the proposal in Anglo Irish had been
structured to bind the dissenting minority into the same exchange
as was accepted by the majority, then this would "deprive the
exit consent of its coercive effect". In practice, this would
have provided an incentive to noteholders to accept a payment of
€0.20 of new notes for each €1 of existing notes
held, or else face the risk of all the issuer's notes being
rendered substantially worthless as a result of any subsequent
legislative intervention or restructuring.
Furthermore, in order to avoid the necessity for an exit consent,
a specific provision can also be incorporated in the powers given
to meetings of noteholders, allowing noteholders the ability to
approve by extraordinary resolution a scheme for the exchange of
existing notes for new notes or other securities. In this way, all
of the noteholders receive new notes having the same terms,
regardless of whether or not they have voted for the scheme,
meaning that equality of treatment is ensured while there is no
need to impose punitive amendments on holders who retain their
notes.
Irish Bank Resolution Corporation Limitedhas been granted leave to
appeal the decision in Anglo Irish, so it may be that the
courts have yet to provide their final position on the exit consent
method. As such, these recent cases have by no means tested the
limitations of consent solicitations in practice. With binding
majority noteholder decisions now under scrutiny, issuers are
likely to face ever greater obstacles to implementing change.
Further Considerations
- For existing issuances, issuers should carefully consider the means by which noteholders are incentivised to co-operate with consent solicitations to ensure that these do not constitute a negative inducement falling within the scope of Anglo Irish.
- Issuers may continue to offer payments to consenting noteholders to vote in favour of proposed changes, even where such changes relate to interest payable under the notes.
- In structuring any exchange offer, issuers should consider the timing to ensure that the acceptance of the notes is conditional on the passing of the resolution. This way, notes are accepted for exchange only after the noteholders have voted in favour of any applicable resolution.
- When negotiating deal terms, issuers should be aware that these should explicitly include appropriate issuer call rights, as well as the power for noteholders to (i) vote on resolutions abrogating their rights and (ii) approve by extraordinary resolution a scheme for the exchange of existing notes for new notes or other securities.
- In practice, issuers may also wish to consider the use of New York law as governing law for new issuances, as the established practice of using exit consents has been upheld in the courts in the United States.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.