From boom to bust: Bringing clients through the liquidity freeze

January 21, 2009 11:24 AM

A rapid freezing of international credit is placing a sudden and significant pressure not only on the region’s companies, but also on its insolvency laws. Can the frameworks cope, LatinLawyer asked a group of leading lawyers at a round table in New York.

PARTICIPANTS

Carlos Albarracín, Chadbourne & Parke LLP

Judith Elkin,
Haynes & Boone LLP

Lawrence Larose,
Dewey & LeBoeuf LLP

Otto Lobo,
Motta, Fernandes Rocha – Advogados

Alexis Rovzar,
White & Case LLP 

James Sprayregen, Goldman Sachs

David Walker, PricewaterhouseCoopers

Lloyd Winans,
Winans & Associates LLP (former general counsel of Lehman Brothers)
 
 
LL: How has the credit crisis affected companies in Latin America?

Albarracín: Latin America has seen significant growth, fuelled to an extent by access to cheap credit. Companies from one country have entered other markets in the region and elsewhere that they see as a strategic fit to their business by significantly relying on credit. They are now adjusting to the new environment. Growth plans are being revisited and revised because access to and the cost of capital and growth prospects have changed. In the retail sector, for example, companies have announced plans to downsize operations and scale back their planned investments. Those that have been acquiring businesses with short-term bank financing are suffering from the lack of long-term financing sources available to refinance debt. This trend affects all the countries in the region but it is more pronounced in countries which have seen a lot of activity, like Colombia and Peru. These countries have strong fundamentals and have also seen significant growth fuelled by cross-border financing. Chile has been hit to a lesser extent because in recent years it has relied less on cross-border financing and has a strong local financing market. Argentina has been affected even less because it never really recovered full access to credit after the 2002 crisis.

Rovzar: We've had a great ride and growth has been very structured this time around. Large companies in the region - multilatinas - have become very focused and professional. It is true they have grown with cheap capital, but they have been better capitalised than ever. Companies become dominant in their own countries first, and then have sought growth elsewhere in the region and even in the US and Canada, successfully competing with multinationals. The region has companies with world-class management, such as that at Banco Itaú, Odebrecht, Vale and Votorantim: they all rationalise access to markets in the same way international peers do. Femsa, Grupo Bimbo and Cemex are other examples. On the question of how the crisis has affected Latin American companies, access to credit and equity markets, from international and domestic sources, has dried up. For years liquidity was under-priced, hence the cheap credit market that fuelled a lot of the growth we have seen. But today it's over-expensive so companies in the region are hurting. They are nevertheless better equipped than they were for prior crises, and that is thanks to the new generation of entrepreneurs and professional managers leading these companies who have been educated abroad and many have MBAs from world-leading universities. This generation is also marked by a series of crises in Latin America. Today's managers of multilatinas have learnt a number of lessons from previous crises and some were prepared for a crisis, even if they did not see this one coming, which leaves them stronger than they might have been in other circumstances. Debt is generally manageable, reserves are higher than ever, and inflation is under control in countries like Brazil, Chile, Colombia, Peru and Mexico. Other countries may have a different story.

Lobo: Most people are aware that Brazil was growing fast. There was a lot of foreign investment pouring into the country and last year was a formidable year for Brazil in terms of IPOs. A month-and-a-half ago, the crisis parked itself in Brazil, but our fundamentals are stronger than five or 10 years ago. We had very strong momentum, with the IPOs, the investment grade and the pre-salt discoveries by Petrobras. The several companies Alexis mentioned and others have become multinationals and acquired assets abroad, their administrations are more sophisticated, they are prepared for crises and have taken measures accordingly. But other companies, such as Aracruz and Sadia, were hit really hard by the devaluation of the Brazilian real against the US dollar. Brazil has worked to stabilise the real against the dollar for the last five years, but in a month-and-a-half the exchange rate has fluctuated by 50 per cent. Export-heavy companies betting on the real continuing to rise have been hit very hard as a result and are now taking measures to deal with the offset. We are certainly in difficult times, but we have had good news in the last two weeks: Brazilian banks are strong. Very few were involved in sophisticated derivatives and such operations. Banco Itaú has just announced a merger with Unibanco that will create the ninth-largest bank in the Americas. Bradesco's president said in a recent interview that the rule at Bradesco is not to enter deals they don't understand, and that has paid off. Now we need to see what will happen in terms of investment and how liquidity will come back.

LL: How does this vary between countries with previously strong capital markets and those not so strong?

Sprayregen: From the perspective of lending from the US into these countries, we've seen credit and capital markets seize up, whether they are weak or strong. There is an irony that the scale of the sweep-up is probably larger in Brazil and Chile than Colombia or Peru because capital markets weren't as willing to lend into weak markets in the first place. When we talk about capital markets, we usually think of lending but in recent weeks we have seen the effect of a severe decline in commodity prices, causing huge mark-to-market calls on hedges and other derivatives, which has caused liquidity issues and capital calls on companies that were not prepared for that.

Larose: Otto mentioned that the Brazilian economy is in a position of some strength in the current crisis. From talking to the legal and banking communities in São Paulo, the level of panic is markedly different to that of finance sectors in London and New York. They believe their financial institutions are on sound capital footings with respect to the level of derivatives and structured products in their portfolios. But one has to be very careful when looking at these financial institutions' year-end reporting to see what shows up on their balance sheets, in particular the mark-to-market basis. Going forward, it's hard to see how all the economies can't be seriously affected by what's going on in the rest of the world. As Alexis pointed out, what's different from previous crises is that this is truly international. We all rely on each other but that reliance is becoming more and more tenuous as the international financial community grows weaker. While I come away with impression that Brazil is in position to weather the storm, one has to be cautious.

Rovzar: Certainly we have sufficient proof today that suggests there is no decoupling.

Elkin: I would agree. I do a lot of work in the energy sector and initially, when we were only looking at the subprime issue, because Latin American banks hadn't got into subprime to the extent US and European banks had, they weren't experiencing the same problems. When commodity prices were still high, there was still credit going into project financing of power plants, for example, because there was still a perceived need for power. But now commodities have come down and there has been this chilling effect on the economy generally. You are not seeing the willingness to lend money to what would usually be seen as very viable projects.

Albarracín: Access to finance has become challenging even in very healthy markets. In terms of trade financing, central banks in Chile and Brazil have taken numerous measures to make central bank guarantees and other lines of credit available to banks to enable companies to continue exporting. Local markets had formerly financed trade transactions because companies were having a difficult time accessing those lines but in recent years that had changed, as companies were able to access lower cost credit lines from international banks. Countries with alternative sources of capital such as Chile and Peru, with strong pension fund systems and developed local capital markets, have been affected to a lesser extent. Such cushions to the market are very useful in this situation, but there are still challenges in local financing systems. It's a function of what's happening in the world and how that's affecting not just credit markets but also exporting companies, commodity prices and energy resources.

Elkin: The currency shift, where for some reason the US dollar has gotten a little stronger, is making it tough for those Latin American companies that viewed the US as a good market. That, and the fact that the US is spending less, creates a bad cycle for everybody.

Rovzar: While I don't disagree with what has been said, I'd like to draw your attention to the news that InBev has just closed its transaction to buy Anheuser-Busch with a syndicated line of credit of US$45 billion. Let's make no mistake, InBev is not a Belgian company, it's Brazilian.

Sprayregen: I think, in this case, the exception proves the rule. It's virtually miraculous that it closed in this crisis and I don't think we can take that as an indication of any upcoming turn of events. There was some doubt that it was going to close and we are talking about two generally very healthy companies.

Rovzar: The positive lesson I take from InBev closing is there is a prize even in harsh times for execution and professional managers. This is more than anything a crisis in confidence.

Winans: I agree that the InBev deal is an extreme exception in the current market conditions. Capital market transactions are at a historic low. I see very few deals getting priced and those that are do so under the extreme scrutiny of rating agencies. When asking where the money is coming from, my question is: what local avenues are there to fund the deals? Governments in Peru and even Costa Rica have said they will pump money in if they have to and there is now a relief fund available in Mexico, but local money is, by and large, absent from the financial structure. In Argentina, the pension funds were some of the biggest institutional players. Take them out of the market and who is left? Where is the money coming from? While there is liquidity in the market, we don't see a lot of funding, not from local hedge funds or private equity funds, and the money is not flowing from transactions in the US. That's the confidence problem breeding. Whether deals like InBev's will be enough to bring back confidence is something we will have to see play out, but I think it could take a very long time.

Elkin: Alexis's comments about confidence are interesting. Nobody trusts anybody's balance sheet. We have companies with great assets, great management and operations that are totally undervalued now because they are caught up in this panic mode where people are selling everything. What is happening to Citibank's stock is unbelievable.

Walker: A similar thing is happening with hedge funds: those that are actually liquid are facing massive redemptions because people want to get money out, which is adding to the sell-off in market.

LL: What options to raise cash are still available for companies?

Lobo: In terms of Brazil and other Latin American countries, there is money coming from private equity. There are funds out shopping for stock in several companies. It will be interesting to see whether receivable funds, relatively new to Brazil, will really start coming into play in the next few months.

Walker: There are still some funds with cash, and some are being creative to take advantage of what a lot of people see as a one-in-20 opportunity to buy, but you need pretty good fundamentals. You can still borrow money, but the expected return is 300 to 600 basis points above what was being asked for three to six months ago. There are a lot more rights issues, but the problem there is that when a company says it needs more capital, the market thinks it's in trouble so the share price gets hammered.

Albarracín: Credit as a source of capital has pretty much dried up, apart from a few exceptions such as those transactions that were already underway. Some sources are becoming more prominent now, particularly private equity and hedge funds with capital to deploy, but the cost of capital is significantly higher now. We are also seeing some multilateral agencies stepping into the shoes of commercial banks that are not able to syndicate or refinance transactions. M&A transactions are also affected by the crisis because M&A valuations are up in the air and no one knows what the values of assets currently are. Companies aren't making decisions to proceed with acquisitions or are terminating negotiations given these uncertainties. Although financing may be available from limited sources, they are reluctant to fund deals.

Larose: Uncertainty is killing the market worldwide. People aren't lending, even those hedge funds or private equity groups with access to liquidity, because they don't know where the bottom is. The US government's reaction has not helped. It's been flailing around for the last six weeks. The market doesn't know where it is going to go next and has no confidence that the government itself knows where it's going next. Until we get more certainty about where the bottom is and what new financial structure the world will adopt, we are in for a very hard road.

Rovzar: In terms of Latin America, valuation has always been a problem. Perhaps it is time for shareholders to step up to the table and contribute capital. In the region, certainly in Mexico, there is a longstanding tradition of poor companies and rich owners, with the exception of those that have excelled, such as the multilatinas.

LL: In the last 15 years, a number of reforms have been made to insolvency laws across Latin America. Will they hold up now it's crunch time?

Lobo: In the case of Brazil, we have a new insolvency law that is akin to the US system of chapters 11 and 7 and pre-packaged chapter 11s. We don't have cross-border insolvency rules, but we have new tools to deal with the crisis. This week we filed a pre- packaged chapter 11 for an oil refinery in Rio, which is something new. Brazilian law previously forbade out of court settlements.

Rovzar: Mexico has had an upgraded system for several years now that has been tested. Evidence that the law is up to the challenge lies in the fact that debtors are much more careful about going to court these days than in prior crises. The old system was extremely debtor-protective and could be used and abused by debtors of ill repute. If we still used that system today, we would have tens of companies undergoing insolvency procedures. I think the greatest challenge in Mexico is training specialised courts, judges and other stakeholders in the procedures. Controladora Comercial Mexicana, which got badly burnt with derivatives, had to file for insolvency three times because different judges rejected the filing.

Albarracín: The situation seems to be different in Argentina, where the institutions have not been as strong and reliable in recent years and the policies not as consistent. Argentina hasn't adopted UNCITRAL or cross-border insolvency rules. However, after the 2002 crisis, the bankruptcy rules were overhauled to provide for certain expedited ways of dealing with restructuring that have proved somewhat successful, especially for restructuring complex cross-border transactions involving US and European debt holders. Argentine companies and international investors learnt important lessons from that. Some interesting cross-border insolvency cases have come out of Argentina's collapse that will be the basis for a lot of the cross-border insolvency activity we are likely to see in the US coming out of Latin America and other emerging markets. For example, hedge funds trying to seek chapter 15 protection in the US are having a hard time getting courts to agree that such protection should be afforded.

Larose: Going back to Brazil's insolvency law, from an outsider's perspective I have heard many times that this law is based loosely on the US chapter 11. If you are looking from a distance, that may be true, but there are significant fundamental differences, both on paper and in how it is being implemented, that make the process in Brazil very different from the US - and I think that presents challenges for the law to meet its potential. On the creditors' side, for example, while there is a provision for a creditor representative and creditor committee, there is no provision for them to be paid. It's also very unclear what level of liability one takes on as a creditor representative. This creates a severe disincentive for anyone to step up and take on a very important function in a case, the balance against trustee and debtor. Finally, there is still a high level of uncertainty about how many parts of the law will be applied by the judiciary. There is a high level of expertise in the Bars of São Paulo and Rio and outside-the-box thinking will fill in the blanks but it is very early days. This makes it very difficult to advise both creditors and debtors on how a case will come out, so I'll be interested to hear how the pre-packaged file in Rio works its way through the system.

Lobo: Indeed, the law has only been in place since 2005. Since then we have had two or three major cases. I was involved in the Varig Airlines recovery procedure and only now have the first rulings of the Superior Court of Justice been rendered. One of those rulings provides that there is no tax or labour succession in the case of the sale of assets in recovery, if the asset is an independent productive unit. We did not have a developed culture in out-of-court recovery, but we will see more and more of what I think is a very efficient procedure. The Varig case was important for laying down rules, but several other points have to go through the court system and we need to see how they will play out.

LL: Should Latin American countries implement ad hoc procedures or amendments to insolvency laws during this crisis?

Lobo: There is a general rule not to legislate during a crisis.

Elkin: The new insolvency laws that have come out across the world are an attempt to move towards the US chapter 11 system that allows a debtor to continue to operate, to restructure and emerge as a revitalised company and reap the associated benefits. This includes maintaining some employment, which is important globally. For a long time in the US, we took the importance and benefits of debtor-in-possession (DIP) financing for granted. DIP financing was the best, most secure financing. It allows companies to keep operating and keep employees working. Now DIP financing is drying up, even in the US. Traditional sources are either in trouble themselves or pulling out. GE was one of the main DIP financers but it has announced it won't be doing any more. Debtors are in trouble. My main concern is that all this new legislation is still in its infancy and has only just been tested. In this unique situation where credit is dry, it may not work. Judges and professionals who are receiving training on how to deal with it might decide the benefits aren't there and conclude the legislation doesn't work at all. You not only shouldn't legislate in a crisis, but you also shouldn't change legislation that is a policy matter and legislated for all the right reasons. I hope the legislation isn't disregarded on the basis that it doesn't work because there is no money right now.

Winans: One of the questions will be whether these new bankruptcy laws in Brazil or Argentina are going to have a negative impact on opening up credit markets or not. With the changes in the pre-package bankruptcy in cram-down in Argentina, now foreign creditors get hit 30 cents to the dollar out of bankruptcy if they are lucky. Does that have a chilling effect on bringing credit back? I agree it shouldn't take a crisis to change things, but we don't know how long this process will last, and countries may have to be flexible in terms of trying to open up credit markets. It may be that flexibility is one tool that will encourage credit markets to pick up, if people know the effects aren't going to be as big as they seem right now.

Albarracín: Governments and legislators need to strike the balance between providing relief to companies and certainty to creditors that their contracts will be recognised and honoured. For example, the new Argentine pre-packaged bankruptcy, which was widely used to restructure debt in the 2002 Argentine crisis, requires less court supervision than traditional Argentine bankruptcy proceedings. This was an important factor when US bankruptcy courts assessed if chapter 15 ancillary proceedings had to be instituted as courts were concerned that creditors would not have the same protections as in a more supervised in-court reorganisation.

Rovzar: I don't think the world will ever be the same as before the meltdown. The crisis may accelerate a number of changes. There will be a reaction by governments, there will be a reaction by legislators and unfortunately there will be an overreaction to many issues. But as we face this brave new world, at least for commercial law, Latin America would be well served by an open and determined effort to converge local laws with international standards - not exclusively with US law but with UNCITRAL and other such efforts. The better-managed countries in the region should make an effort to review laws and upgrade them. The issuance of a letter of credit in Chile, Argentina or Mexico should not be different to that in the US or Canada. There is no reason for variation in today's market. While the general recipe of not legislating in a crisis may have been wise in others, this crisis will change the world so fundamentally that the private sector should lead the effort and participate in a debate with the executive and legislative powers in Latin America.

Larose: The only thing we can be sure of today is that insolvency laws are tested by cases and we are certainly going to see cases arise from this. All the laws are going to be tested as never before.

Sprayregen: Bad facts make bad law and we have a lot of that going on, considering the extraordinary facts we are dealing with. The US is in the midst of a debate about whether to bail out the automobile industry. One way or another, governments are going to be very involved in unlocking credit markets for bankruptcy cases. The lack of DIP financing is making it difficult for companies to avoid liquidations. Latin American companies came to the US to access our bankruptcy systems. There would not be much benefit in doing that now.

Albarracín: In recent years, more Latin American companies have been looking at chapter 11 as an alternative for restructuring, but I don't think there is a culture in Latin America of seeking DIP financing in connection with a bankruptcy filing. I think Latin American companies going into bankruptcy do so because they have no access to credit apart from equity sources or trade credit and need to restructure their debt or prevent liquidation. I'm not sure the lack of DIP financing will be a major deterrent to Latin companies seeking to restructure using the US Bankruptcy Code. However, given recent rulings, there seems to be the perception in Latin America that the US system has changed in ways that would make it more challenging for companies from the region to seek bankruptcy protection in the US.

Larose: You are onto something. There is a perception that it is either difficult to gain jurisdiction in the US or the more hurdles one places in front of debtors, the less likely it is that they will take advantage of a system. Equally, if the benefits are perceived as diminished, why go through with the brain damage? We are going back to the matter of uncertainty, this time in the law and the legal system. Until we have certainty in the systems and outcomes, practitioners aren't going to advise clients to take certain steps. I don't expect a big move of foreign debtors trying to use the US system until that uncertainty diminishes, at least in the near future. Where there is a choice, the current environment in the US may be less attractive.

Lobo: In certain cases, foreign debtors don't have an alternative. Take an airline company with contracts with US companies that need a decision rendered in their own courts to be extended to the US. In these cases, they have to file chapter 15 to have the decision of their recovery or liquidation procedures extended to the US. In the Varig case, we had to file a section 304 (currently chapter 15) because we needed the aircrafts.

LL: Should Latin American companies be able to initiate insolvency proceedings without the need of a real insolvency status?

Elkin: In the US, you don't have to be insolvent to file for bankruptcy. It is sufficient to be illiquid even if you are not balance-sheet insolvent. In most other countries you are required to be insolvent.

Larose: Insolvency can be in the eye of the beholder. For example Cayman doesn't require insolvency to file and Bermuda does. In my experience, it has never been an impediment to whether you can get the case started in another jurisdiction. As I understand it, the definition in other jurisdictions is quite flexible. So one wonders what the use of requiring insolvency is to start proceedings.

Albarracín: In the current environment, we have a lot of companies in distress as a result of having obtaining short-term financing to fund specific acquisitions or growth plans that they now cannot refinance. Some of these companies are facing difficulties because they can't pay what they owe and can't refinance it, given the unavailability of credit sources. Resorting to bankruptcy protection to override contract terms that prohibit those companies from restructuring debt would be key in this environment. This may also prove that out-of-court debt restructuring is a very effective tool for refinancing and convincing creditors that refinancing is the only sound alternative in this market. For example, a few years ago one of our clients, a Colombian power company that had a syndicated loan agreement it needed to refinance, was unable to convince one of the banks in the syndicate to agree to the refinancing terms. This company ended up filing a pre-package bankruptcy plan in the US to successfully restructure its loan agreement. So for companies in distress, not in insolvency, bankruptcy protection can prove affective in this environment.

Rovzar: Today's environment is interesting because companies are going to mark-to-market some assets at a time when the market is being affected by issues that have little to do with the quality of assets on the market. These assets will have to absorb valuation hits and that may create a temporary situation that requires protection from other stakeholders. But convincing a judge that's what you need when the law is not that specific may be a tremendous challenge. That's on the asset side. On the liability side, this same company may have sophisticated derivatives, some of which may have matured, but others have not yet. If the current circumstances prevail, in order to prevent further deteriorations something may have to be negotiated, and not necessarily out of court because you have different stakeholders.

Elkin: When you do a restructuring for a fundamentally good company that has liquidity issues and needs to mark-to-market certain assets, you have to renegotiate. But at the table you have people who bought papers when the market was completely different and people who have never lived through a crisis. Those of us who have been practising for thirty-something years have lived through crises. True, this one is different - it's global and has greater scope - but when you have a situation such as Carlos mentioned, when you are negotiating with 11 banks and one is holding out, you wonder what this bank is holding out for. Do they want you to sell the business? Who do they think is going to buy it? Even if you went to auction to liquidate the company, no one is going to show up. That is the situation GM is in. We all know who the potential buyers are, but they aren't going to buy it. So what is a bankruptcy of GM going to do, short of turning out the lights, closing it down and throwing hundreds of thousands of people out of work around the world. I don't think any of us know the answer, but you have to come up with practical solutions and make decisions, right or wrong, because uncertainty is sending everything spiralling out of control.

Lobo: That is evident in some of the cases we have seen in Brazil. Is what the creditors want doable? At times, no, so instead of taking the company into liquidation and getting nothing, it's better to take it through a recovery procedure where at least you get something. It won't be much, and it will be in 10 to 15 years' time, but no one is going to buy the company if you liquidate it. There is no market for these assets right now.

Larose: You file if you think you can make something happen - it's not a matter of solvency or insolvency, it's whether filing will produce a result that's better than staying put.

LL: Are regulators equipped to cope?

Rovzar: If this is indeed a crisis of confidence and it is in the countries' best interest to recover confidence, banking regulators who have proven to be very effective ought to be concerned that insolvency regulation and regulators are professional and have sought to converge. If there has indeed been no decoupling, the only way for countries like Mexico, Brazil or Chile to differentiate is with up-to-speed insolvency laws and courts, in addition to strong banking sectors and strong financial markets. There can be no room for mediocrity or corruption.

Elkin: The markets are in crisis not because of lack of regulation but because no one has said, "you must do A, B and C". It's the same with bankruptcy legislation - it's beautiful on paper but it only works if judges enforce it as written and if courts know what they are doing. We need consistency, stability and predictability.
Sprayregen: The idea that regulation is going to solve the problem in the short term is ridiculous. This is going to be a long hard slog, no matter what.

LL: Is there now an increased opportunity for distressed debt markets in the region and who will take that opportunity?

Elkin: There are a lot of people putting distressed debt funds together. But until we know where the bottom is, no one is willing to buy - everyone is watching.

Lobo: Investors are waiting. Our firm has done a few deals since the crisis started; private equity players are taking advantage of the situation - it will be interesting to see what happens going forward.

Rovzar: There is plenty of liquidity and I think there are some top private equity firms and some very serious hedge funds who are liquid but even they are pricing their liquidity very high today. One type of transaction that the market is not yet totally aware of that will emerge in a few months is hedge funds buying commercial banks' and other financial intermediaries' loan portfolios.

Albarracín: Over the last three years, we have seen a record level of debt capital market offerings in Latin America - a phenomenon that is critical to determining how restructuring takes place. As we saw in Argentina's crisis, restructuring debt instruments sold through the capital markets requires a lot more engineering than other debt instruments like loan agreements. Distressed debt players and hedge funds that invest in these instruments are going to become very active once they know where the bottom is in terms of market prices. I'm starting to see a lot of activity in some countries where there was previously high capital market activity, like Brazil and Mexico, and where many debt instruments are trading at distress levels. That will be an extra element that was not present to the same extent in prior crises (except maybe the Argentine debt crisis). Before, most cross-border financing came in the form of commercial loans and multilateral financing. We are going to see numerous exchange offers and exit consents being used to try to restructure debt, possibly combined with local and cross-border insolvency filings if the consent levels are not high enough. This will make restructuring more challenging and creative for lawyers.

With thanks to Chadbourne & Parke LLP for hosting and Otto Lobo for coordinating the event.

(Source: magazine LatinLawyer)

19 January, 2009