Restructuring Italy’s New York Law Bonds
by | posted in: Bankruptcy Roundtable Updates, Cramdown and Priority, International and Comparative | 0

By Andrea E. Kropp (Duke University School of Law)

Little attention has been paid to Italy’s bonds issued under New York law in discussions of Italy’s debt stock and how it will be restructured should the need arise. Because these New York law bonds have no collective action clauses and had been presumed to contain very creditor-friendly pari passu language, they appeared to be too difficult to restructure. As a result, it has been assumed that they would remain untouched, with an Italian debt restructuring impacting only local law bonds. No proposals had previously addressed how to restructure the New York law bonds because of this assumption. This article fills that gap by creating an actionable strategy to restructure the bonds and by demonstrating how the long-held presumption about the creditor-friendly pari passu language is flawed.

The article advocates for the use a set of exit amendments in an exchange offer effectuating the restructuring of the New York law bonds. These exit amendments will be used to secure execution and attachment immunity and to extend the period before creditors holding the non-exchanged bonds can accelerate. This set of exit amendments act to make the bonds quite unattractive to would-be holdout creditors. In addition, these creditors’ motivation to hold out is decreased even further because of the pari passu language in the indentures for the issuances. While the pari passu language in the bonds appeared to pose an insurmountable challenge to a restructuring, this presumption is grounded in a reading of the sales documents rather than the underlying Fiscal Agency Agreements that actually control the issuances. In contrast to the sales documents, the Fiscal Agency Agreements contain language that is much less creditor-friendly. Consequently, a recalcitrant creditor’s calculus in determining whether to hold out in a restructuring has changed significantly, making the exit amendment strategy a truly viable option.

The full article is available here.

Solving the Pari Passu Puzzle: The Market Still Knows Best
by | posted in: International and Comparative | 0

By Sergio J. Galvis (Sullivan & Cromwell LLP)

As a result of the Argentine sovereign debt crisis and ensuing holdout litigation saga, the pari passu (or ranking) clause became a source of great consternation in the international sovereign bond market. Specifically, Judge Griesa’s holding that Argentina had violated the pari passu clause by refusing to pay creditors who had not participated in the nation’s earlier debt exchanges, and the accompanying requirement that Argentina had to pay those holdout bondholders, led to uncertainty in the market regarding the leverage holdouts could exercise in sovereign debt restructurings going forward. Concern was expressed over the ability of sovereigns to succeed with voluntary exchange offers premised on the threat that the restructuring sovereign would default on payments due to non-participating bondholders. This article evaluates the impact of the court’s decision in the Argentine litigation to date, including subsequent court decisions that have helped reinforce the view that the equitable holding in favor of the holdouts in the Argentine saga is a narrowly prescribed outcome that is unlikely to be repeated absent extraordinary circumstances. It then examines the adoption of improved ranking clauses and collective action voting clauses in recent issuances of sovereign debt in the effort to bring greater certainty to market participants and facilitate efficient restructurings in the future without the need for extra-contractual restructuring mechanisms and remedies.

The full article is available here.

For other recent Roundtable posts related to sovereign debt, see Lubben, “Sovereign Bankruptcy Hydraulics“; Gulati and Rasmussen, “Puerto Rico and the Netherworld of Sovereign Debt Restructuring“; and a Cleary Gottlieb update on Puerto Rico’s bankruptcy.

Pari Passu Undone: Game-Changing Decisions for Sovereigns in Distress
by | posted in: International and Comparative | 0

By James Michael Blakemore (Cleary Gottlieb Steen & Hamilton LLP)

In “Pari Passu Undone: Game-Changing Decisions for Sovereigns in Distress,” which appears in Issue No. 3 of the “Cleary Gottlieb Emerging Markets Restructuring Journal,” published by Cleary Gottlieb Steen & Hamilton LLP,[1] Michael Lockman and I examine a recent decision in White Hawthorne, LLC v. Republic of Argentina, No. 16 Civ. 1042 (TPG), 2016 WL 7441699 (S.D.N.Y. Dec. 22, 2016), regarding the hotly litigated pari passu clause.

Following an economic catastrophe in the early 2000s, the Republic of Argentina successfully restructured the vast majority of its more than $80 billion of debt, exchanging new bonds for those on which the crisis had forced default. In February 2012, Judge Thomas P. Griesa of the Southern District of New York, based on a boilerplate provision in the defaulted bonds known as the pari passu clause, enjoined Argentina from servicing its restructured debt without simultaneously making ratable payments to holdout creditors who had refused to participate in the exchange. This interpretation was unprecedented and, given the pari passu clause’s ubiquity in sovereign debt instruments, threatened to reverberate far beyond the specific facts of Argentina’s case. For nearly five years, anxious sovereigns and market participants were left to ponder the scope of these rulings. Most basically, would a sovereign debtor’s decision to pay some but not all of its creditors, taken alone, violate the pari passu clause?

Judge Griesa has now answered this crucial question. Following Argentina’s announcement, in February 2016, of a global proposal to settle its defaulted debt, a group of hedge funds brought suit, arguing in part that Argentina’s settlement with other creditors violated the pari passu clause. In White Hawthorne, Judge Griesa disagreed. The Court’s opinion confirmed that, absent aggravating circumstances—Judge Griesa mentioned specifically the “incendiary statements” and “harmful legislation” of Argentina’s former government—a sovereign debtor may pay some of its creditors and not others without running afoul of the pari passu clause. The decision does much to clarify the limits of the pari passu clause and deals a serious blow to creditors who would interpret the clause broadly to undermine future sovereign restructuring efforts.

The full article is available here.

[1] The firm represented the Republic of Argentina in the matters described in the article. The views expressed here are solely those of the authors and do not necessarily reflect those of the firm or its clients.