distressed m&a: current trends · © 2020 haynes and boone, llp 2015-2019 cumulative e&p...
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© 2020 Haynes and Boone, LLP
Distressed M&A: Current Trends
Matt Ferris – Restructuring Michael A. Freeman – M&A; Energy214.651.5955 [email protected] [email protected]
© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
2015-2019 CUMULATIVE NORTH AMERICAN E&P BANKRUPTCY FILINGS
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HAYNES AND BOONE OIL PATCH BANKRUPTCY MONITOR
NU
MB
ER O
F FI
LIN
GS
717
1417
3410
97 7 2 8 6
124 6 5
13
15 9
0
50
100
150
200
250
2015Q1
2015Q2
2015Q3
2015Q4
2016Q1
2016Q2
2016Q3
2016Q4
2017Q1
2017Q2
2017Q3
2017Q4
2018Q1
2018Q2
2018Q3
2018Q4
2019Q1
2019Q2
2019Q3
2019Q4
Cumulative bankruptciesNew bankruptcies since the previous quarter
(As of December 31, 2019)
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2015-2019 CUMULATIVE E&P UNSECURED DEBT, SECURED DEBT AND AGGREGATE DEBT
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HAYNES AND BOONE OIL PATCH BANKRUPTCY MONITOR
$0
$20
$40
$60
$80
$100
$120
$140
2015Q1
2015Q2
2015Q3
2015Q4
2016Q1
2016Q2
2016Q3
2016Q4
2017Q1
2017Q2
2017Q3
2017Q4
2018Q1
2018Q2
2018Q3
2018Q4
2019Q1
2019Q2
2019Q3
2019Q4
BIL
LIO
NS
(As of December 31, 2019)
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2015-2019 E&P BANKRUPTCY FILINGS BY LOCATION
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TEXAS
94
DELAWARE32
COLORADO
11
LOUISIANA
ALASKA
MASSACHUSETTS1
OKLAHOMA
6
ALABAMA
VIRGINIA
NEW YORK
ARIZONA
1
UTAH2
MINNESOTA
MONTANA1
KENTUCKYCALIFORNIA 5
CANADA
18
WEST VIRGINIA
NEW MEXICO
1
311
10
2
1
111
PENNSYLVANIA
2NEVADA
1
MICHIGAN
1
NEW JERSEY1
WYOMING
1
(As of December 31, 2019)
© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
2015-2019 E&P SECURED AND UNSECURED DEBT BY FILING LOCATION
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NEW YORK$20,306,579,582
DELAWARE$23,793,425,757
(As of December 31, 2019)
TEXAS$57,451,081,928
ALABAMA$212,726
ALASKA$217,158,133
ARIZONA$3,699,213
CALIFORNIA$71,772,722
CANADA$1,710,380,228
COLORADO$472,109,287
KENTUCKY$15,381,247
LOUISIANA$592,922,110
MASSACHUSETTS$3,578,276
MICHIGAN$1,558,932
MINNESOTA$1,233,733
NEW YORK$20,308,779,582
DELAWARE$25,211,350,343
TEXAS$68,681,104,491
MONTANA$83,726,167
NEVADA$1,042,675
NEW JERSEY$1,024,566
NEW MEXICO$1,286,649
OKLAHOMA$553,310,479
PENNSYLVANIA$2,009,791,901
UTAH$274,640,449
VIRGINIA$1,250,928,395
WEST VIRGINIA$40,865,611
WYOMING$117,302,400
© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
Distressed Sales Options
Out of Court/Contractual Sales
Foreclosure Sales
Chapter 11 Plan Sale
Stand Alone Bankruptcy 363 Sale
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Advantages of 363 Sales
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►Speed of Process►Transfer of assets free and clear of liens, claims and encumbrances
(often without the lienholder’s or claimholder’s consent)►Transfer of otherwise non-assignable contracts and leases►**Rejection of burdensome contracts and leases**►Avoidance of exposure to claims under fraudulent transfer laws►Limited exposure for breach of representations and warranties;
limited buyer recourse
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Stalking Horse Protections
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Break Up Fee
Expense Reimbursement
Overbid Requirements
Topping Fee
Bid Increments
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Break-Up Fee & Expense Reimbursement–What Will a Court Approve?
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Almost always: Reimbursement of Reasonable and Necessary Expenses (sometimes capped)Sometimes: Percentage of Proceeds (break-up fee average is approximately 3.0%)Sometimes: A percentage fee, plus expense reimbursementAmount of fees and expenses cannot have a “chilling effect”
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Due Diligence Period
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§ In bankruptcy sale situations, due diligence period is often accelerated
§ A strategic consideration for a prospective Stalking Horse is to propose a very abbreviated due diligence period
§ Competing bidders and other constituents may argue for extending proposed due diligence time frames
§ Title and environmental due diligence in upstream transactions must be conducted prior to signing a definitive agreementv Limited period between signing and closing for topping biddersv No traditional adjustment mechanics
© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
Contract/Lease Provisions–Opportunity to Assume or Reject Contracts & Leases
§ Purchaser will have an opportunity and a time frame to decide which contracts or leases will be assumed and assigned
§ Assumption and assignment will require a cure of defaults – which will impact net sale proceeds
§ Bankruptcy allows for assignment of contracts and leases notwithstanding anti-assignment restrictions with limited exceptions
§ Purchaser must establish / provide adequate assurance of future performance
§ Burdensome contracts and leases can be rejected
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© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
Recent Trends - Midstream Services Agreements
§ In re Sabine Oil and Gas Corporation (2016)§ New York court interpreted Texas law§ Sabine was a Texas-based E&P company that had pre-petition gas
gathering agreements with two service providers§ Sabine wanted to reject the agreements because it was no longer
financially viable for it to deliver the minimum amounts under the agreements
§ General Rule: Agreements that “run with the land” are not executory contracts that can be rejected under the Bankruptcy Code
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© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
Recent Trends - Midstream Services Agreements (Sabine)
§ Sabine Court’s Conclusion:v The agreements concerned Sabine’s interest in personal property
(the extracted gas and condensate) and did not affect its real property interests
v The Court found that the agreements were executory and could be rejected in the bankruptcy proceeding
§ The Sabine decision was upheld by the Federal appellate court
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© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
Recent Trends - Midstream Services Agreements
§ Fast forward to December 20, 2019
§ In re Alta Mesa Resources, Inc. (2019)v Texas court this time, but interpreting Oklahoma law
§ Alta Mesa Court Conclusions:v (1) The dedications in the gathering agreement created covenants that “run with
the land” and cannot be rejected in bankruptcy
AND
v (2) The requirements to form a real property covenant in Texas mirror those in Oklahomaü the Alta Mesa court thereby suggesting its conclusion would have been the
same if the case had been decided under Texas law
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© 2020 Haynes and Boone, LLP© 2020 Haynes and Boone, LLP
Recent Trends - Midstream Services Agreements
§ Takeaways from Sabine and Alta Mesa:v There is uncertainty at this point regarding the standard in Bankruptcy
Courtsv Sabine interpreted Texas law (but by a New York bankruptcy court)v Alta Mesa interpreted Oklahoma law (but by a Texas bankruptcy court,
with a suggestion that Texas law was the same)
v The laws of a particular state will determine whether an agreement contains covenants that “run with the land”
v Agreements can be fixedü The courts have provided clues for necessary language in agreements
to ensure a real property interest is granted
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Questions?
Q/A Session to Follow
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Contact Us:
Matt FerrisRestructuring214.651.5955
Michael A. FreemanM&A; Energy214.651.5362
© 2020 Haynes and Boone, LLP
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