Bond restructurings Implementation mechanisms: schemes vs. exchange offers December 2015 ■ a principal haircut; ■ extended maturity; and / or ■ a change in coupon (rate and/or whether the coupon is cash-pay or PIK). Exchange offers are based entirely on voluntary participation. They can only succeed if a critical mass of bondholders agrees to participate. A “carrot and stick” approach is used to incentivise participation and penalise holdouts. For background on the use of schemes of arrangement as restructuring tools, see here.
A lot is written about structuring robust intellectual property licensing programs, whether from the perspective of licensors or licensees of intellectual property rights. This requires a careful consideration of legal, tax and regulatory issues that impact on the licensing arrangement.
The legal risks can’t always be managed adequately through the careful negotiation and drafting of a licence agreement. Some of these risks need to be managed independently of the drafting of any agreements.
On March 22, 2018, Sungdong Shipbuilding & Marine Engineering (“Sungdong”), a mid-sized shipyard in South Korea, filed a petition to commence a “rehabilitation proceeding” with the Changwon District Court. A rehabilitation proceeding is a court-administered reorganization proceeding comparable to a Chapter 11 proceeding in the United States. In a rehabilitation proceeding, the debtor continues to do business while restructuring its pre-existing debt.
The Changwon District Court in South Korea has this afternoon (23 March 2018) issued a comprehensive prohibition order (CPO) following the application of Sungdong Shipbuilding and Marine Engineering Co. Ltd (Sungdong) to enter Chapter 11 Rehabilitation filed earlier this month.
The effect of the CPO is to provisionally prohibit all creditors of the yard from taking legal action in South Korea to secure and enforce their claims by attachment, arrest or foreclosing of their security interests.
On September 9, 2016, Hanjin Shipping Co. won a ruling protecting its assets in the U.S. against creditors, while the shipping line proceeds with its reorganization in South Korea. Hanjin filed for relief under Chapter 15 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey (U.S. Bankruptcy Court Judge John K. Sherwood in Newark, N.J.).
News of the bankruptcy of one of the world’s largest ocean carriers, Hanjin Shipping Co., Ltd. (Hanjin), continues to have a ripple effect globally, creating legal entanglements and disrupting company supply chains. Some ports, terminals, stevedores, truckers and rail carriers have refused to service Hanjin vessels and containers for fear of not getting paid.
As Venable has previously reported, Hanjin Shipping Co. Ltd. (Hanjin) recently filed for court receivership in South Korea. Immediately thereafter, Hanjin sought protection by filing for recognition of the South Korean proceeding pursuant to Chapter 15 of the U.S. Bankruptcy Code.
Recent Events
The federal district court in New Jersey recently denied an appeal by maritime creditors of Hanjin to lift bankruptcy protections and allow arrest of Hanjin's vessels in and near U.S. ports. The federal district court judge agreed with the bankruptcy judge's grant of blanket protection to Hanjin and directed creditors of Hanjin to file claims in the Korean bankruptcy proceeding. Those claims are now due by October 25, 2016 in the Korean proceedings, according to an amended order issued by the Korean judge.
It has been just over two months since one of South Korea's largest shipowners and operators, Hanjin Shipping Co Ltd (“Hanjin”), applied for court rehabilitation. On 1 September 2016, the Bankruptcy Division 6 of the Seoul Central District Court (the “court”) issued a decision accepting that application and commencing rehabilitation proceedings.
This is the second instalment in a series on the US cross-border insolvency statute, Chapter 15 of the Bankruptcy Code, which took effect 11 years ago (for further details please see "Chapter 15 at 11: Bankruptcy Code's cross-border insolvency law approaches 11th anniversary").