December 11, 2020 – The Debtors’ filed an Amended Plan of Reorganization and related Disclosure Statement showing changes to the versions filed on October 15, 2020 [Docket Nos. 787 and 788, respectively].
The amended Plan revises the proposed treatment of Existing Equity Interests in Valaris to read, "if Holders of Existing Interests in Valaris vote as a Class to support the Plan, they will receive the New Warrants. If Holders of Existing Interests in Valaris do not, as a Class, vote to support the Plan, they will not receive the New Warrants and will not be entitled to receive any other form of recovery under the Plan."
In connection with the revised treatment of equity, the Amended Plan eliminates language related to implementation of a U.K. Implementation Agreement. The Amended Disclosure Statement indicates that this change was made because "Following discussions, the Required Consenting Noteholders have provided consent to the Debtors to proceed to implement the Plan in England and Wales by way of an Administration, rather than the other Implementation Mechanisms under the RSA."
In addition, a footnote in the Amended Plan touches on the issue of valuation. The Amended Plan was filed one day after Citibank, N.A., in its capacity as administrative agent (the “RCF Agent”) objected to the Debtors’ Disclosure Statement for their Plan of Reorganization [Docket No. 782]. In that objection, Citibank did not hold back on its displeasure regarding the Debtors' valuation. The RCF agent also offered up an exit financing counterproposal (More on Citibank objection and proposal below).
According to the Amended Disclosure Statement, "The projected recoveries for Classes 3, 4, 5, 6, 7 and 8 correspond to the mid-point of the valuation range in the analysis performed by Lazard Frères & Co. LLC, which is attached hereto as Exhibit F. Subscription Rights are assumed to have value equal to the value of the equity underlying the rights offering."
The Amended Disclosure Statement [Docket No. 788] provides, “Since the Petition Date, in addition to obtaining approval of the DIP Facility, the Debtors have continued to build consensus for the deal reflected in the RSA. Following the Petition Date, additional holders of senior notes signed joinders to the RSA, resulting in holders of approximately $1.5 billion of additional bond debt signing the RSA. In total, 72 percent in aggregate principal amount of Senior Notes signed the RSA.
The Debtors also developed the RSA into the Plan, which provides as follows:
- all priority and administrative Claims will be rendered Unimpaired;
- Holders of Credit Facility Claims will share in a recovery of 32.5 percent of New Valaris Equity;
- Holders of Senior Notes Claims will receive Subscription Rights and share in an equity pool comprised of 34.8 percent of the New Valaris Equity;
- in addition to the treatment provided to the Senior Notes, Holders of Pride Notes and Legacy Rowan Notes will receive an aggregate $1.25 million and $23.75 million payment in Cash, respectively;
- the subscribers of the New Secured Notes pursuant to the Rights Offering will receive 30 percent of the New Valaris Equity, with additional backstop fees discussed further below;
- Holders of General Unsecured Claims will either have their Claims Reinstated or receive payment in full in Cash within a specified period post-emergence;
- the Newbuild Contracts will be rejected and Holders of Newbuild Claims will receive their liquidation recovery, unless otherwise agreed between such Holders and the Debtors and with the consent of the Required Consenting Noteholders; and
- if Holders of Existing Interests in Valaris vote as a Class to support the Plan, they will receive the New Warrants. If Holders of Existing Interests in Valaris do not, as a Class, vote to support the Plan, they will not receive the New Warrants and will not be entitled to receive any other form of recovery under the Plan.
The formulation of the RSA and Plan is a significant achievement for the Debtors in the face of historic commodity price declines and a depressed operating environment. The Debtors strongly believe that the Plan is in the best interests of the Debtors’ estates and represents the best available alternative at this time. Given the Debtors’ core strengths, including their modern fleet, highly skilled workforce, global reach and successful operating and safety track record, the Debtors are confident they can efficiently implement the restructuring set forth in the RSA and Plan to ensure their long-term viability and success. For these reasons, the Debtors strongly recommend that Holders of Claims and Interests entitled to vote to accept or reject the Plan vote to accept the Plan.”
The following is an updated summary of classes, claims, voting rights and expected recoveries (defined terms are as defined in the Plan and/or Disclosure Statement):
- Class 1 (“Other Secured Claims”) is unimpaired, deemed to accept and not entitled to vote on the Plan. The aggregate amount of claims is N/A and expected recovery is N/A.
- Class 2 (“Other Priority Claims”) is unimpaired, deemed to accept and not entitled to vote on the Plan. The aggregate amount of claims is N/A and expected recovery is N/A.
- Class 3 (“Credit Facility Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $582.1mn and expected recovery is at least 100%. Holders shall receive a Pro Rata share (as determined as a percentage of all Allowed Credit Facility Claims) of the Credit Facility Distributable Pool.
- Class 4 (“Pride Bond Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $439.2mn and expected recovery is 25.7%. Holders shall receive a Pro Rata share of (i) 8.807 percent of (x) the Senior Notes Distributable Pool and (y) the Subscription Rights and (ii) an aggregate $1.25 million payment in Cash.
- Class 5 (“Ensco International Bond Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $114.2mn and expected recovery is 17.2%. Holders shall receive a Pro Rata share of 1.549 percent of (x) the Senior Notes Distributable Pool and (y) the Subscription Rights.
- Class 6 (“Jersey Bond Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $863.5mn and expected recovery is 29.6%. Holders shall receive a Pro Rata share of 20.209 percent of (x) the Senior Notes Distributable Pool and (y) the Subscription Rights.
- Class 7 (“Valaris Bond Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $3.1bn and expected recovery is 14.9%. Holders shall receive a Pro Rata share of 36.835 percent of (x) the Senior Notes Distributable Pool and (y) the Subscription Rights.
- Class 8 (“Legacy Rowan Bond Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $2.2bn and expected recovery is 20%. Holders shall receive a Pro Rata share of (i) 32.600 percent of (x) the Senior Notes Distributable Pool and (y) the Subscription Rights and (ii) an aggregate $23.75 million payment in Cash.
- Class 9 (“General Unsecured Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $255.5mn and expected recovery is 100%. Holders shall receive payment in full in cash within ninety days after the later of (i) the Effective Date and (ii) the date such General Unsecured Claim comes due under applicable law or in the ordinary course of business in accordance with the terms and conditions of the particular transaction or agreement giving rise to such General Unsecured Claim.
- Class 10 (“Newbuild Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $358.8mn and expected recovery is 0.2%. Holders shall receive a Liquidation Recovery promptly after the date such Newbuild Claim is Allowed, but in any event no later than ten days after such date.
- Class 11 (“Intercompany Claims”) is impaired/unimpaired, deemed to accept/reject and not entitled to vote on the Plan. The aggregate amount of claims is N/A and expected recovery is N/A.
- Class 12 (“Intercompany Interests”) is impaired/unimpaired, deemed to accept/reject and not entitled to vote on the Plan. The aggregate amount of interests is N/A and expected recovery is N/A.
- Class 13 (“Existing Interests in Valaris”) is impaired and entitled to vote on the Plan. The aggregate amount of interests is N/A and expected recovery is $11.0mn. Treatment: (i) If Holders as a class vote in favor of the Plan each Holder of an Existing Interest in Valaris shall receive its Pro Rata share of the New Warrants; or (ii) If Holders as a class do not vote in favor of the Plan, no New Warrants shall be issued to any Holder of Existing Interests in Valaris.
- Class 14 (“Section 510(b) Claims”) is impaired, deemed to reject and not entitled to vote on the Plan. The aggregate amount of claims is $0 and expected recovery is 0%.
Exhibits attached to the Disclosure Statement [Docket No. 788]:
- Exhibit A: Plan of Reorganization
- Exhibit B: RSA
- Exhibit C: Corporate Organization Chart
- Exhibit D: Liquidation Analysis
- Exhibit E: Financial Projections
- Exhibit F: Valuation Analysis
Proposed Key Dates:
- Voting Deadline: February 3, 2021
- Plan Objection Deadline: February 3, 2021
- Confirmation Hearing: Date February 11, 2021
Citibank Objection
On December 10, 2020, Citibank, N.A., in its capacity as administrative agent (the “RCF Agent”) objected to the Debtors’ Disclosure Statement for their Plan of Reorganization [Docket No. 782]. Citibank's scathing review of the Disclosure Statement, the Plan it describes, the Debtors' proposed exit facility and the valuation of the Debtors on which the Plan is based comes as the latest in a string of objections filed by the RCF Agent throughout the Debtors' Chapter 11 cases, including past objections to the Debtors' DIP Financing and Key Employee Incentive Plan motions [Docket Nos. 205 and 662, respectively].
In addition the concerns raised in the Disclosure Statement objection, Citibank said it delivered to the Debtors a competing proposal for exit financing that would be "provided by a group of RCF parties using the current Plan structure" and "on substantially the same terms as the Ad Hoc Group Exit Financing, but with 5% less 'stapled equity.'" The financing counterproposal is attached to the Disclosure Statement objection as Exhibit A. Citibank said it delivered the counterproposal following failed attempts to convince the Debtors to consider alternative financing structures (see more on counterproposal below).
The objection notes, “The Motion — which seeks approval of a Disclosure Statement and accompanying Solicitation and Voting Procedures (as defined in the Motion) with respect to the plans of reorganization for the Debtors (collectively, the ‘Proposed Plans’) — is another step in the Debtors’ unwavering pursuit of their fatally flawed prepetition deal with the ad hoc group of holders of the Debtors’ Senior Notes (the ‘Ad Hoc Group’). The general terms of the Proposed Plans and the exit financing on which it is premised (the ‘Ad Hoc Group Exit Financing’) date back to the Debtors’ prepetition entry into the Restructuring Support Agreement with the Ad Hoc Group (the ‘Restructuring Support Agreement’). As the evidence adduced at the hearing (the ‘DIP Hearing’) on the motion (the ‘DIP Motion’) seeking approval of the DIP Facility made clear, the plan structure in the Restructuring Support Agreement (as now embodied in the Proposed Plans) and the Ad Hoc Group Exit Financing on which it depends, were designed to achieve a capital structure that is untethered to the constraints of the Bankruptcy Code.
Notwithstanding the flaws in their plan structure and the Ad Hoc Group Exit Financing having been laid bare at the DIP Hearing, the Debtors, in a continued abdication of their fiduciary duties to all creditors, squandered nearly two months without engaging on alternative plan structures. In fact, despite the Court having directed that David Kurtz of Lazard Frères & Co. LLC act as a facilitator of negotiations between the Debtors and the RCF Agent on a settlement of plan-related issues at the end of September, that request was virtually ignored until late November. Mr. Kurtz had one round of discussions with members of the steering committee of RCF Parties (the ‘RCF Steering Committee’) prior to November and then went into virtual hibernation until submitting a first formal settlement proposal to the RCF Steering Committee on November 20, 2020. In recent days, the Debtors finally appear to be engaging in plan discussions in a more serious manner; however, they do so against the backdrop of a ticking clock of their own creation, which is winding down to the currently proposed confirmation hearing date. Thus, although it is difficult to discern with precision the Debtors’ motivation for their ponderous approach to plan discussions, from the perspective of the RCF Agent, the current discussions appear to be less of a real set of negotiations than an effort by the Debtors to ‘check the box’ while running out the clock on the confirmation timetable they set.
The limited time that the Debtors spent engaging with alternative plan structures, however, appears to exceed the virtually non-existent efforts that they expended on fulfilling their specific duty to obtain alternate exit financing. In fact, the RCF Agent is not aware of any efforts by the Debtors to seek exit financing from other parties since the Petition Date, even under the same flawed structure that underlies the Ad Hoc Group Exit Financing. Indeed, in the time since the DIP Hearing, the Debtors have not taken the minimal step of asking the RCF Parties whether they would be willing to provide exit financing under the same structure as the Ad Hoc Group Exit Financing.
Rather than continuing to wait in vain for the Debtors to fulfill their duties, the RCF Agent delivered to the Debtors a proposal for exit financing provided by a group of RCF Parties using the current plan structure, a copy of which is annexed hereto as Exhibit ‘A’ (the ‘Exit Financing Counterproposal’). The RCF Agent continues to maintain that there are capital structures that are far superior to the capital structure contained in the Proposed Plans with their reliance on the Ad Hoc Group Exit Financing and that the valuation on which the recoveries in the Proposed Plans are based is massively overstated. Nevertheless, having tried unsuccessfully to get the Debtors to consider more appropriate capital structures and better exit financing, certain RCF Parties delivered the Exit Financing Counterproposal, which is on substantially identical terms as the Ad Hoc Group Exit Financing, but with 5% less ‘stapled equity.’ With an identical structure to the Ad Hoc Group Exit Financing, but with a lower amount of ‘stapled equity,’ the Exit Financing Counterproposal indisputably is a better deal for the Debtors and their estates than the Ad Hoc Group Exit Financing.
On the merits, the Motion should be denied because the Proposed Plans are patently unconfirmable and proceeding to solicit votes on them would be futile. Even if the Court were to determine that the Proposed Plans were not patently unconfirmable, the Motion should be denied because the Disclosure Statement does not to meet the requirements of section 1125 of the Bankruptcy Code, as it not only fails to contain adequate information, but also is replete with misleading information.
There are two key deficiencies with the Proposed Plans that not only permeate the disclosure in the Disclosure Statement, but also render the Proposed Plans patently unconfirmable. First, the Proposed Plans proclaim that they are separate plans of reorganization for each Debtor, yet, beyond that window dressing, it is readily apparent that the Proposed Plans actually improperly ignore the separateness of the Debtors. Second, the Proposed Plans are premised upon an Ad Hoc Group Exit Financing that is outrageously priced and, so far as the RCF Agent is aware, was never adequately shopped by the Debtors.
The Proposed Plans explicitly self-identify as being separate and distinct plans of reorganization for each Debtor and clearly indicate that the Debtors are not seeking the substantive consolidation of their estates. Yet, despite the unambiguous language to the contrary in both the Disclosure Statement and the Proposed Plans, the reality is that the Proposed Plans function as a single plan in a manner that completely ignores the guarantee claims that the RCF Parties have against the various Debtors that guaranteed the RCF Credit Agreement (collectively, the ‘RCF Guarantor Debtors’). That the Proposed Plans really are a single unified plan is most evident from the fact that the Proposed Plans seek to provide a single source of recovery — in the form of common equity of Valaris plc (the ‘Post-Emergence Parent Equity’) — for all of the claims of the RCF Parties (collectively, the ‘Credit Facility Claims’). Such a single source of recovery completely ignores the Credit Facility Claims against the RCF Guarantor Debtors arising from the guarantees of the obligations under the RCF Credit Agreement from the RCF Guarantor Debtors (the ‘RCF Guarantees’).
The fact is, there is no valid business justification for the Ad Hoc Group Exit Financing embodied in the Rights Offering. As set forth in greater detail herein, if the Rights Offering were to be consummated, the Backstop Parties would receive an incredible $1.38 billion (at the Debtors’ purported plan value) worth of consideration in exchange for the $500 million in new money that is to be raised by the Rights Offering. That the Ad Hoc Group Exit Financing is nothing more than a blatant transfer of value to a select group of creditors at the expense of all of the Debtors’ other creditors is even more evident today than when the Debtors first agreed to the Ad Hoc Group Exit Financing when they entered into the Restructuring Support Agreement in August.
As the evidence adduced at the DIP Hearing made clear, under the business plan under which the Debtors were operating when they entered into Restructuring Support Agreement, the $500 million Ad Hoc Group Exit Financing provided an excessive amount of borrowed money. Since that time, however, the Debtors have adjusted their business plan to include an expected tax refund of more than $100 million, plus other positive adjustments, that greatly increase their projected cash over the term of the Ad Hoc Group Exit Financing, making $500 million in term financing all the more excessive.
In addition to the lack of recognition of the separateness of the various Debtors and the absurdly one-sided Ad Hoc Group Exit Financing, the Disclosure Statement also falls well short of providing adequate information on a variety of issues that are of critical importance for creditors. One of the most notable deficiencies of the Disclosure Statement is that it contains false and misleading information about the size of the Credit Facility Claims. Throughout the Disclosure Statement, the size of the Credit Facility Claims is identified as being a fixed amount of $581 million. Such amount, however, ignores the $41.2 million of outstanding letters of credit issued under the RCF Credit Agreement, meaning that the Credit Facility Claims may be as high as $622 million.
Another glaring deficiency of the Disclosure Statement is the lack of meaningful information on valuation. Although the Debtors did file Exhibit F to the Disclosure Statement, which contains a valuation analysis (the ‘Valuation Analysis’), the Disclosure Statement remains woefully inadequate in the disclosure of relevant information regarding valuation. For example, the Disclosure Statement provides no discussion of the relevant indices of valuation such as the trading prices of the Debtors’ prepetition indebtedness. In addition, the Disclosure Statement fails to describe (i) how the recovery of the RCF Parties — which is based upon the fixed 32.5% of Post-Emergence Parent Equity in the Credit Facility Distributable Pool — would be less than 100% of the amount of the Credit Facility Claims in the event that the Debtors collectively were valued at less than $1.79 billion, prior to giving effect to the dilution by the Management Incentive Plan, and (ii) the impact on recoveries of the RCF Parties from the newly introduced dilution of the Management Incentive Plan on Credit Facility Claim recoveries. Finally, the Disclosure Statement omits any reference to the fact that the Debtors readily anticipate that the RCF Parties will be contesting valuation and that they believe it is significantly below even the plan value implied by the Restructuring Support Agreement.”
Exit Financing Counterproposal
In respect of the Exit Financing Counterproposal, the objection explains, "The Exit Financing Counterproposal, like the Ad Hoc Group Exit Financing, will raise $500 million of cash for the Debtors in return for first lien secured notes, with a seven-year maturity, bearing interest at 8.25% in cash, 10.25% (with 5.125% in cash and 5.125% PIK) or 12% PIK, at the Debtors’ election.
However, as a backstop fee, backstop parties to the Exit Financing Counterproposal will receive a 6.0% fee payable in kind (i.e., $20 million less than the $50 million Notes Premium contemplated by the Ad Hoc Group Exit Financing) after they re-advance $20 million in a cash commitment fee that would be paid into escrow (similar to the fee payment structure in the Restructuring Support Agreement), in addition to the same 2.7% of the reorganized equity.
The 'stapled equity' consideration in the Exit Financing Counterproposal is 25% — 500 basis points less than the 30% contemplated by the Proposed Plans and the Ad Hoc Group Exit Financing — a savings the Debtors should value at over $125 million based on the current midpoint enterprise value in the Debtors’ Valuation Analysis. The additional 5% of stapled equity freed up by the Exit Financing Counterproposal would then be available as additional recoveries for other stakeholders."
Liquidation Analysis (see Exhibit D of Disclosure Statement [Docket No. 788] for notes)
About the Debtors
According to the Debtors: “Valaris plc (NYSE: VAL) is the industry leader in offshore drilling services across all water depths and geographies. Operating a high-quality rig fleet of ultra-deepwater drillships, versatile semisubmersibles and modern shallow-water jackups, Valaris has experience operating in nearly every major offshore basin. With an unwavering commitment to safety and operational excellence, and a focus on technology and innovation, Valaris was rated first in total customer satisfaction in the latest independent survey by EnergyPoint Research – the ninth consecutive year that the Company has earned this distinction. Valaris plc is an English limited company (England No. 7023598) with its corporate headquarters located at 110 Cannon Street, London EC4N 6EU.”
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