Beyond City Limits: Restructuring a Municipality in Chapter 9

1. Beyond City Limits: Restructuring a Municipality in Chapter 9 Laura Day DelCotto, Esq. DelCotto Law Group PLLC ldelcotto@dlgfirm.com 859-231-5800 www.dlgfirm.com

2. Today’s Economic Climate

4. Why? • Despite media reports, it’s not over yet; slow economic recovery and weak job growth expected even as the recession ends • Protracted weakness of real estate projected—slow recovery expected along with “structural” changes • Housing market still in recovery; residential values will take many years to return to 2006 levels, with great geographic disparity • Changing consumer behavior—lower retail spending will significantly affect numerous businesses/industries

5. Why? (cont.) • Demographics • Kentucky Fried Pensions

6. Why? (cont.) • Show me the MONEY http://www.timeplots.com/

7. Why? (cont.) • Denial/Fear • Extend and Pretend

8. Effects on Municipalities • Squeezed between costs of providing basic services and flat or declining revenues • Squeezed by budgeted revenues not meeting budgeted expenditures, and insufficient reserves to cover shortfall • Payroll costs and employee benefits are often a key component of a municipality's fiscal stress • “Exotic” financial instruments behaving unpredictably, causing borrowing costs to increase • Municipal credit suffering an eroding tax base as a result of the stalled housing market and consumer distress • Unfunded Mandates

9. Cost/Benefit Analysis:Why Would a Municipality File a Chapter 9? • Burdensome contracts - labor, supplies, etc. • Pension and OPEB renegotiation • Health insurance costs for current workers • Restructuring debt • Other factors that apply in Chapter 11 (vs. Chapter 9) • Creates forum for all parties • Who will exhibit Leadership?

10. Cost/Benefit Analysis:Why Would a Municipality Avoid Chapter 9? • Stigma/Fear • Future access to debt markets • Unpredictability of court proceedings • Compounded by lack of Chapter 9 case law • Public nature of court proceedings • Greater scrutiny and influence of outside parties • Independent federal court judge • Creates forum for all parties

11. Cost/Benefit Analysis:More Assessment Factors • Better to resolve problems outside of bankruptcy if at all possible – yes and no • Transparency • ID in clear terms specific factors that are driving revenues down and/or expenses up • Communicate scope and nature of challenges to all potentially impacted stakeholders • May be necessary for the municipality's management to engage in extensive labor negotiations with assistance of labor attorneys • Restructure creditors’ long term debt - consensual vs. cram down • Make the hard decisions about ongoing programs and projects-- postponing, scaling back & cancelling to free up cash • Press/”Public Relations”

12. Recently Filed Cases

13. Detroit

14. “Zone of Insolvency” Duties

16. Preparing for Chapter 9 • “Good faith negotiations” with creditors and stakeholders legal prerequisite to filing a Chapter 9 case • Continued negotiations with key constituencies • Analyze all possible options: short term fixes and long term exit strategies

17. Eligibility – Who can File? • An entity that is eligible for chapter 11 is generally not eligible for chapter 9, and vice versa • Knox County Hospital • Adair County Hospital District • Seven Counties • Only a “municipality” may file for chapter 9, whereas only a “person” may file for chapter 11 • Absent certain narrow exceptions, 11 U.S.C. section 101(41) defining “person” excludes “governmental units” • Section 303 expressly limits chapter 9 to voluntary proceedings (no risk of involuntary filing)

18. Eligibility – Who can File? To be eligible, must satisfy all of the following [11 U.S.C.§109(c)]: • Must be a “municipality”: Means “political subdivision or public agency or instrumentality of a State” [11 U.S.C.§101(40)]; • Must be “specifically authorized” under state law to be a debtor under federal bankruptcy law; • Must be insolvent – unable to or not paying debts as they come due (cash flow test); • Must desire to “effect a plan to adjust” its debts; and • Must (A) have obtained the agreement of majority of each impaired class of creditors, or (B) have negotiated in good faith with its creditors and failed to obtain agreement of majority within each class, or (C) be unable to negotiate with creditors because such negotiation is impracticable, or (D) must ”reasonably believe” that a creditor may attempt to obtain an avoidable preferential transfer.

19. Eligibility – What is a Municipality? A “municipality” is a “political subdivision or public agency or instrumentality of a State.” Courts determine whether a petitioner is a municipality by evaluating whether the petitioner: • Was created with the sovereign powers of the state, such as the power to sue and be sued, issue bonds, levy and collect; • Is subject to control by a state or municipal authority; or • Would have fallen within the jurisdiction of the bankruptcy courts under prior bankruptcy statutes.

20. Eligibility – Is the Municipality Specifically Authorized? • Pursuant to section 109(c)(2), a municipality may only file a chapter 9 case if it has been specifically authorized to do so under state law • KRS Chapter 66 • A state may specifically authorize a municipality “in its capacity as a municipality or by name.” • A state statute authorizing its subdivisions to commence bankruptcy adequately satisfies requirement of specific authorization

21. Eligibility – Is the Municipality Insolvent? • Pursuant to sections 109(c) and 101(32)(C), a municipality must show, as of the date of filing, that it is either: • Generally not paying its debts as they become due unless such debts are the subject of a bona fide dispute; or • Unable to pay its debts as they become due

22. Eligibility – Is the Municipality Insolvent? (cont.) • Insolvency Test #1: generally not paying its debts as they become due • Courts view this as a flexible standard, requiring: • Consideration of the totality of the circumstances; and • A balancing of the interests of the debtor and its creditors/stakeholders

23. Eligibility – Is the Municipality Insolvent? (cont.) • Insolvency Test #2: unable to pay its debts as they become due. • Courts consider a cash-flow basis; i.e., the municipality must show that debt payments would cause a negative cash balance • This test further requires certainty that debts will not be met – a mere possibility that the municipality is cash-flow negative will not satisfy this test

24. Eligibility – The Intent Based Requirements • Chapter 9 eligibility also requires a municipality: • Act in good faith; and • Evidence a desire to effect a plan to adjust its debts • These intent based requirements generally impose a duty on a municipality to negotiate with creditors and propose a settlement if feasible both before and after its chapter 9 petition

25. Eligibility – The Intent Based Requirements (Cont.) • There are four independent statutory tests for good faith under section 109(c)(5). • A court will conclude a municipality filed in good faith if it: • Has obtained the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan; • Has negotiated in good faith with creditors and has failed to obtain the agreement of creditors holding at least a majority in amount of claims of each class that such entity intends to impair under a plan; • Is unable to negotiate with creditors because such negotiation is impracticable; or • Reasonably believes that a creditor may attempt to obtain a transfer that is avoidable under 11 U.S.C.§547

26. Eligibility – The Intent Based Requirements (Cont.) • There is no statutory language to determine whether a municipality desires to effect a plan to adjust its debts. Courts interpreting this requirement have considered the following questions: • Does the municipality have debts that could be adjusted in a plan? • Has the municipality proposed a reasonable settlement with its creditors? • Has the municipality administered its case in a reasonably timely manner?

27. Role of Bankruptcy Court • Role of a Chapter 11 Court • A debtor’s business in a chapter 11 case is generally subject to review of the bankruptcy court under a business judgment standard. • Additionally, a chapter 11 debtor must obtain the approval of the court to, among other things, use cash collateral outside of the ordinary course of business.

28. Role of Bankruptcy Court Role of a Chapter 9 Court • Bankruptcy Code provides that the Chief Judge of the Circuit in which the case is filed shall assign a judge to each Chapter 9 case • Sections 903 and 904 work in tandem to curtail a court’s ability to control a municipality’s governance and spending/constitutional –state sovereignty issues • Bankruptcy court has the discretion to approve or reject a plan, or dismiss the case for cause on its own initiative, after notice and a hearing under sections 930 and 943

29. Commencement of a Chapter 9 Case • In addition to filing the petition itself, the municipality must file a number of pleadings in order to initiate the bankruptcy case • Creditors list • List of Creditors Holding the 20 largest unsecured claims (“Top 20” List) • Pleadings establishing eligibility • Notice by publication – 11 U.S.C.§923 • 11 U.S.C. § 103(f) and 11 U.S.C. 901 – what else within the Bankruptcy Code applies?

30. Automatic Stay in Ch. 9 • In all chapter cases, once a petition is filed there is an automatic stay on all actions to collect against the debtor under 11 U.S.C.§362. • In a chapter 9 case, Section 922: • Incorporates all of the protections of the automatic stay of §362; and • Stays actions against an officer or inhabitant of the debtor and actions to enforce liens or assessments owed to the debtor. • Note: The §922 stay does not operate to stay the application of pledged special revenues to indebtedness secured by such revenues

31. Retention of Professionals In a chapter 11 case: • Applications for employment of professionals must be filed and require approval of the bankruptcy court • Interim and final payments to professionals during the course of a chapter 11 process require notice and court approval In a chapter 9 case: • No required approval process for employment or fees

32. Official Committees The United States Trustee for the relevant district may appoint a committee or committees to represent the interests of creditors holding similar classes of claims. Section 901(a) and Section 1102

33. Preparing the Chapter 9 Plan of Adjustment Plan Process • Exclusivity in Filing/Modifying a Plan • In a chapter 11 case: The debtor has the exclusive right, for a statutorily prescribed period, to file a plan; and after this period has expired, or a trustee has been appointed, any party in interest may file a plan. • In a chapter 9 case: only the debtor may file or modify a plan at any time. • Despite exclusivity, a chapter 9 debtor does operate under time constraints in filing a plan “as the court fixes.”

34. Plan of Adjustment Plan of Adjustment • Classifies claims according to their legal priority under state and federal law • As to each class of similar claims, the plan provides a “treatment” for how that class of claims is to be satisfied • Must be confirmed by vote of creditors and Court order The Disclosure Statement • Issued with the proposed Plan of Adjustment • Includes an overview of the plan, treatment of claims, financial projections • Ballots • Each class must vote in favor: requires ½ in number and 2/3 in $ value of each class • Cramdown

35. Plan Confirmation • As in chapter 11, plan confirmation in a chapter 9 case requires a proposed plan to be feasible and in the best interests of creditors per §943 • Feasible • “Best Interest of Creditors” – best of all reasonably possible alternatives. Chapter 9 test differs from “better than liquidation” test for chapter 11 debtors • Regulatory or electoral approval under non-bankruptcy law • Confirmation Requirements of§943(b)

36. Discharge • Under §944, upon confirmation, a chapter 9 plan is binding on all creditors who had actual notice or knowledge of the chapter 9 case, and the debtor is discharged from all debts except those debts that are excepted from discharge by the plan. • Chapter 9 creditors must have notice or actual knowledge of the case. Ensure that all entities get notice of chapter 9 case. • Emergence: the municipality emerges from chapter 9 with all of the rights and powers established under state law and under the terms of the plan • Perform confirmed plan – often years in to future

37. EMBRACE REALITY • EXHIBIT LEADERSHIP

39. “Out of clutter, find simplicity. From discord, find harmony. In the middle of difficulty, lies opportunity.” – Albert Einstein

40. “The beauty of the soul shines out when a man bears with composure one heavy mischance after another, not because he does not feel them, but because he is a man of high and heroic temper.” – Aristotle