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Falência e Restruturações
Cleary Gottlieb presta assessoria no mundo todo em falências e restruturações que ultrapassam as fronteiras legais e geográficas. Os estreitos laços que formamos em todas as regiões nas quais atuamos permitem que nossos advogados compreendam os diversos aspectos legais e culturais que envolvem restruturações internacionais altamente complexas. A satisfação dos nossos clientes decorre do nosso estilo de atuação, com o emprego por nossos advogados de análises precisas e criativas na estruturação de soluções inovadoras.
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Mar 19, 2010
Cleary Gottlieb represented Nortel in closing the sale of the optical networking solutions and carrier ethernet switching segments of Nortel’s Metro Ethernet Networks business to Ciena Corporation. The sale includes units in North America, the Caribbean, Latin America, Asia, Europe, the Middle East and Africa and is the third major Nortel sale to close of five major sales approved in Nortel’s insolvency proceedings. The closing took place on March 19.
In November, Ciena emerged as the winning bidder for these assets following a three-day bankruptcy auction held at Cleary Gottlieb, ultimately paying cash consideration of approximately $774 million, subject to working capital adjustments—significantly higher than its stalking horse bid, which included equity consideration.
Nortel has been a client of Cleary Gottlieb for more than 20 years. Cleary Gottlieb is currently acting as U.S. bankruptcy counsel to Nortel and its affiliates in their U.S. Chapter 11 proceedings, which are closely coordinated with proceedings in Canada, the United Kingdom and France. Cleary Gottlieb has represented Nortel in a number of recent transactions, including the sale of its CDMA business and LTE Access assets to Telefonaktiebolaget LM Ericsson, which closed in November 2009, and the sale of the Enterprise Solutions business to Avaya, which closed in December 2009. Cleary Gottlieb is also representing Nortel in connection with the sale of its GSM business to Telefonaktiebolaget LM Ericsson and Kapsch Carriercom, which closed on March 31, and the sale of its CVAS Business to GENBAND, which has not yet closed.
Aug 14, 2009
Cleary Gottlieb is advising the creditors steering committee (composed of Banco Bilbao Vizcaya Argentaria, S.A., Banco Santander, S.A., Citigroup Global Markets Limited, HSBC Bank plc, The Royal Bank of Scotland plc and BNP Paribas) of CEMEX, S.A.B. de C.V., in connection with its restructuring of approximately $15 billion of indebtedness. The restructured debt includes over $14 billion of syndicated, bilateral and derivative bank debt (for a total of more than 70 participating banks) and over $850 million of U.S. private placement debt. The restructuring process started in March 2009, the agreements were signed and the transaction closed on August 14.
As of December 31, 2008, the Mexican company CEMEX is the third largest cement company in the world, based on an installed capacity of approximately 95.6 million tons and the largest ready-mix concrete company worldwide, with annual sales volumes of approximately 77.3 million cubic meters. CEMEX primarily engages in the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates and clinker.
May 13, 2009
Cleary Gottlieb is advising the ad hoc creditors committee of Aracruz Celulose S.A. in connection with its restructuring of more than $3 billion of derivative and bilateral bank debt—the largest restructuring of derivative obligations in Latin America since the onset of the financial crisis. The creditors represent the first of the largest Latin American companies’ creditor groups to reach an agreement to restructure losses experienced as a result of the financial crisis. The agreement was signed on May 13.
Based in Brazil and one of the world’s largest pulp and paper companies, Aracruz is among the many corporations in Latin America that experienced significant losses as a result of the sharp devaluation of the local currency against the U.S. dollar in the wake of the global financial crisis.
Cleary Gottlieb is advising on many other significant restructurings in Latin America, including, among others, the creditors of CEMEX, GRUMA, Comercial Mexicana (Comerci), Metrofinanciera and Vitro in Mexico, the creditors of Intelig and Independencia in Brazil, and the creditors of Transportadora de Gas del Norte in Argentina. The firm has been counsel in the restructuring of over $35 billion of private sector debt in on-going or recently closed matters.
Jun 26, 2009
Cleary Gottlieb is representing the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW") in its negotiations with GM and the U.S. Treasury relating to the Chapter 11 filing by GM. The firm's work has included advising the UAW with respect to the proposed ownership of 17.5 percent of a new GM by a union retiree healthcare trust, a structure Cleary Gottlieb helped put in place in 2005.
Cleary Gottlieb has a long relationship with the UAW dating back to the 1990s and the restructuring of Navistar Corporation. In recent years, the firm represented the union in connection with the novel agreements entered into in 2005, 2007 and 2008 with General Motors Corporation, Ford Motor Co. and Chrysler to establish the Voluntary Employees’ Beneficiary Association trusts to provide retiree health care benefits for hundreds of thousands of Americans.
Dec 10, 2009
Cleary Gottlieb represented a bank syndicate in connection with $1.5 billion in secured financing to Americas Mining Corporation (AMC), a subsidiary of Grupo México S.A.B. de C.V., to fund AMC’s plan of reorganization for its U.S. copper unit, ASARCO LLC. Banco Inbursa, BBVA Bancomer, Calyon and Credit Suisse led the bank syndicate.
ASARCO LLC commenced its chapter 11 cases in Corpus Christi, Texas over four years ago in the face of significant asbestos litigation, environmental liabilities and labor unrest. After considering several competing plans, including a plan proposed by ASARCO LLC that contemplated a sale of ASARCO LLC's assets to an affiliate of Vedanta Resources, the district court confirmed AMC's proposed plan. Under AMC's plan, creditors will receive full payment of their claims, including interest and AMC will retain its ownership of ASARCO LLC. In addition, the plan provides for the release and dismissal of a landmark multibillion dollar fraudulent conveyance judgment against AMC related to its spin-off of Southern Copper Corporation.
The financing was a integral component of AMC’s plan and was necessary to pay creditors in full. The initial commitment letter included limited conditionality, designed to support AMC's arguments, which were adopted by the court, that AMC's plan was feasible as required under the Bankruptcy Code. For example, there was no material adverse change condition and the banks agreed to fund even if the court order approving the AMC plan was appealed (as it has been). Another notable aspect of the financing is that the credit is supported primarily by a pledge of shares of AMC's publicly-traded subsidiary Southern Copper.
Cleary Gottlieb's work on this innovative form of exit financing exemplifies the firm’s expertise in complex corporate financings and bankruptcy matters.
Apr 30, 2009
Cleary Gottlieb is representing the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW") in its negotiations with Chrysler, Fiat and the U.S. Treasury relating to the Chapter 11 filing by Chrysler. The firm's work has included advising the UAW with respect to the proposed ownership of 55 percent of a new Chrysler by a union retiree healthcare trust, a structure Cleary Gottlieb helped put in place in 2005.
Cleary Gottlieb has a long relationship with the UAW dating back to the 1990s and the restructuring of Navistar Corporation. In recent years, the firm represented the union in connection with the novel agreements entered into in 2005, 2007 and 2008 with General Motors Corporation, Ford Motor Co. and Chrysler to establish the Voluntary Employees’ Beneficiary Association trusts to provide retiree health care benefits for hundreds of thousands of Americans.
Jul 28, 2009
Cleary Gottlieb is representing Nortel Networks on the sale of its wireless infrastructure assets through a bankruptcy auction to Telefonaktiebolaget LM Ericsson for $1.13 billion, an increase of almost $500 million from Nokia Siemens’ original stalking horse bid for these assets. The sale followed a twelve-hour auction that took place in Cleary Gottlieb’s New York office on July 24. It was approved on July 28 after a joint hearing held simultaneously before courts in the United States and Canada.
Nortel has been a client of Cleary Gottlieb for more than 20 years. The firm is currently acting as U.S. bankruptcy counsel to Nortel and affiliates in their U.S. Chapter 11 proceedings, which are closely coordinated with proceedings in Canada, the United Kingdom and France. The firm is also representing Nortel on a stalking horse sale agreement with Avaya for the purchase of Nortel’s global Enterprise Solutions business, including units in North America, the Caribbean, Latin America, Asia, Europe, the Middle East and Africa. This sale is also subject to an auction process and court approval.
In recent years, the firm has represented Nortel in a number of financing and M&A transactions, including the sale of assets related to Nortel’s UMTS access business to Alcatel-Lucent. The firm also advised Nortel on European aspects of its sale to Flextronics of manufacturing operations and related activities in Canada, Brazil, France and Northern Ireland.
Nov 21, 2008
Cleary Gottlieb is representing the German Savings Bank Association (“DSGV”) with respect to back guarantees granted by DSGV and other major German banking associations and financial institutions to the Federal Republic of Germany in connection with a €50 billion rescue package arranged by the German Federal Government and various significant financial institutions for the Hypo Real Estate Group.
In 2007, Cleary Gottlieb advised DSGV on the acquisition of Landesbank Berlin Holding AG (formerly “Bankgesellschaft Berlin”).
Apr 22, 2009
Cleary Gottlieb advised the Vita group and its controlling shareholder TPG Capital in a financial restructuring as a result of which debt in excess of €600 million was written down to approximately €100 million in exchange for a 40% equity stake in the restructured group and €95 million of new secured debt was provided by new money lenders including TPG Capital which remains the largest shareholder with control of the board.
Vita was taken private by TPG Capital in a leveraged buyout in 2005. Its main business lines are petro-chemical based products used in the home furnishing and auto sectors.
The restructuring was implemented using a "scheme of arrangement" under the Companies Act 2006. This is a court process which binds consenting and non-consenting creditors if the proposed restructuring is approved at a specially convened meeting by at least 75% by value and more than 50% in number of each relevant class of those creditors. In certain circumstances, a UK scheme can be used for non-UK companies. In the Vita restructuring the scheme related to a company incorporated in Luxembourg. The court must also approve the restructuring at a "fairness hearing". The Vita scheme was completed very quickly with the initial hearing on March 27, 2009 and the sanctioning of the scheme on April 22, 2009.
The restructuring and new financing required the negotiation of complex debt, shareholder and warrant documentation and the release and re-taking of a full security package in 18 jurisdictions. Cleary Gottlieb took the lead in advising Vita and TPG Capital on the negotiation of the standstills, the term sheets and final documentation for and negotiation of the restructuring, the new financing, the new shareholder arrangements and the management incentive scheme as well as the tax structuring. Cleary Gottlieb also advised throughout on negotiations with trade credit insurers and the lender under a borrowing base revolving credit facility.
May 20, 2008
Cleary Gottlieb has represented an interested party in the appeal from a first instance judgement relating to the manner in which the receiver of the troubled Whistlejacket SIV should distribute its assets, which have a reported face value of approximately $7 billion. Cleary Gottlieb is also advising interested parties in the receivership, liquidation or restructuring of other SIVs and CDOs, including Cheyne, Rhineland, Rhinebridge and Coltrane. Cleary Gottlieb advised potential liquidity facility providers in the proposed "Super-SIV" known as M-LEC.
Oct 01, 2008
Cleary Gottlieb is representing Dexia on all aspects of its recapitalization plan. After three days of intense negotiations between Dexia, its shareholders and the Belgian, French and Luxembourg governments, and on the back of heightened crisis in the European banking sector, a €6.4 billion recapitalization plan was put together in record time. Under the plan, the Belgian state and regions as well as the existing core Belgian shareholders of Dexia, on the one hand, and the French government and the CDC on the other, will each inject €3 billion into Dexia SA. In parallel, the Luxembourg government will be subscribing for €376 million in convertible bonds issued by Dexia BIL.
Dexia's recapitalization is the second instance of urgent, large scale support by European governments to Belgian financial institutions in the last few days, after the rescue, over the course of last weekend, of Fortis. A Cleary Gottlieb team is representing BNP Paribas in its announced acquisition of Fortis' operations in Belgium and Luxembourg, as well as the international banking franchises, for a total consideration of €14.5 billion.
Sep 22, 2008
Cleary Gottlieb represented Barclays in its agreement to acquire Lehman Brothers' North American investment banking and capital markets businesses.
Sep 08, 2008
Cleary Gottlieb acted for Morgan Stanley, which was in turn the advisor to the United States Treasury, in connection with the conservatorship of Fannie Mae and Freddie Mac described in the press as “the most dramatic market intervention in years.”
As detailed in an announcement by Treasury Secretary Henry Paulson on September 7, the two companies have been placed into conservatorship. As a result, the Federal Housing Finance Agency, Fannie Mae’s and Freddie Mac’s regulator, has gained management control of the companies. Treasury has also established preferred stock purchase agreements with Fannie Mae and Freddie Mac under which Treasury could be required to provide as much as $100 billion to each of the companies, established a new secured lending credit facility for the companies, and initiated a temporary program to purchase Fannie Mae and Freddie Mac's mortgage backed securities in the open market.
Dec 10, 2007
Cleary Gottlieb represented Goldman Sachs in its successful acquisition of Litton Loan Servicing, LP (“Litton”), a wholly owned subsidiary of Credit Based Asset Servicing and Securitization LLC (“C-BASS”), and in an option to purchase a 45 percent stake in C-BASS. C-BASS is a joint venture between Mortgage Guaranty Insurance Corporation and Radian Group Inc., two of the United States’ largest mortgage insurers, and a leading issuer, servicer and investor in credit-sensitive mortgage assets. Litton is a mortgage servicing company specializing in loss mitigation and default management for residential loans, servicing more than 400,000 customers nationwide. The transaction was driven by liquidity difficulties experienced by C-BASS and the current downturn in the subprime market, which caused C-BASS to be in default on many of its debt obligations.
Following an intense auction process, Goldman Sachs was selected as the winning bidder and a purchase agreement was executed in September 2007. C-BASS, Goldman and creditors of C-BASS then negotiated and executed an out-of-court restructuring agreement in November 2007 to give C-BASS additional liquidity and to limit the ability of creditors from exercising enforcement remedies until January 15, 2010. Proceeds from the Litton sale were used to pay a portion of C-BASS’s secured debt. The Litton transaction closed on December 10, 2007.
Jan 23, 2006
Cleary Gottlieb represented the Republic of Iraq in a series of transactions during 2005 aimed at restructuring approximately $22 billion in commercial claims against Iraq and Iraqi public sector entities, dating from the Saddam Hussein regime. The most recent transaction in this ongoing effort was a debt-for-debt exchange offer made to Iraq’s larger commercial creditors. All of the creditors, holding reconciled claims totaling approximately $14 billion, agreed to exchange their claims for $2.7 billion in new U.S. dollar-denominated bonds and a $177 million multicurrency loan. The resulting net reduction of Iraq’s debt was equal to approximately $11 billion.
Cleary has advised Iraq since July 2004, when the firm was selected to aid in the restructuring of Iraq’s approximately $130 billion in external debt.
Cleary assisted Iraq in negotiations with the Paris Club group of bilateral creditors that led to an agreement in principle in November 2004 to cancel 80% of the roughly $40 billion of Iraq’s sovereign debt owed to Paris Club members. The remaining 20% is to be repaid over 23 years. The Paris Club is an informal group of creditor governments from major industrialized countries that meets on a monthly basis in Paris in order to agree with debtor countries on restructuring their governmental debts.
During 2005, Cleary assisted Iraq in the negotiation of bilateral implementing agreements with most members of the Paris Club, and it is expected that the remaining Paris Club bilateral agreements will be concluded in early 2006. Cleary also assisted in the negotiation of agreements on similar terms with a number of non-Paris Club countries during 2005, and additional agreements with non-Paris Club members are expected during 2006.
On July 26, 2005, Iraq proposed a comprehensive settlement of its commercial claims on terms comparable to those agreed with the Paris Club (in a net present value sense) .
Apr 19, 2009
Cleary Gottlieb represented the Republic of Liberia in its negotiations with private creditors to eliminate approximately $1.2 billion in outstanding private sector debt, at a discount of nearly 97 percent of its face value, the steepest discount ever negotiated on developing country commercial debt. The deal closed on April 14 after over two years of negotiations, with a payment of $38 million to extinguish 25 outstanding commercial facilities representing 97.5% of Liberia’s foreign commercial debt, one of the highest rates of participation in a sovereign debt buyback in the last several decades. The World Bank contributed half the money for the buyback through the International Development Association Debt Reduction Facility, and the United States, Germany, Norway and the United Kingdom contributed the other half. The buyback was completed at no cost to the citizens of Liberia thanks to the financial support of the World Bank and other partners, including a Swiss foundation.
#1 in Global M&A Involving Insolvent Companies
FactSet Mergerstat, 2007-2009
(announced, value)
#1 in U.S. M&A Involving Insolvent Companies
FactSet Mergerstat, 2007-2009
(announced, value)
Telecom Deal of the Year
(Nortel's asset sales)
Investment Dealers' Digest (2010)
Americas M&A Deal of the Year
(Barclays' acquisition of Lehman Brothers' assets)
International Financial Law Review (2009)
Best Restructuring Transaction of the Year
(CEMEX)
LatinFinance (2010)
Restructuring Deal of the Year
(GRUMA)
Latin Lawyer (2010)
Sovereign Liability Management of the Year
(Uruguay)
LatinFinance (2009)
“Clients are drawn to the firm for its strong network, endorsing it as ‘a truly international operation with very professional and accessible lawyers.’”
“‘They are truly multidisciplinary, which is an important and useful trait.’”
Chambers Global (2010)
“This highly regarded team continues to rise in the estimation of the market, and it has played a key role in some of the largest bankruptcy matters. … ‘In addition to its talent for litigation, the group has a great blend of transactional and regulatory expertise and does an excellent job of communicating issues and maximizing its resources.’”
Chambers USA (2010)
“Clients are drawn to the firm for its strong network, endorsing it as “a truly international operation with very professional and accessible lawyers.”’
Chambers Europe (2010)
“Representing both debtors and creditors in bankruptcy and restructuring and buyers and sellers in distressed M&A, this high-quality group has been doing well in work arising out of the economic downturn. … Sources appreciate the ‘incredibly responsive, thorough and client-friendly lawyers’ for their ability to ‘anticipate issues and provide clear advice ahead of events.’”
Chambers USA (2009)
“Cleary Gottlieb’s ‘highly responsive’ corporate restructuring group is well positioned to advise debtor and creditor clients on both big-ticket domestic and cross-border mandates. ‘Their excellent, substantive knowledge is complemented by their good tactical judgement,’ comment clients.’”
The Legal 500 - US (2009)
“This high-quality, broad-based global bankruptcy and restructuring practice handles significant work on both the debtor and creditor side, as well as advising sellers and purchasers involved in distressed M&A. … [It is also] noted for its ‘extremely strong’ sovereign debt practice.”
Chambers USA (2008)
“‘Knowledgeable and responsive,’ say clients, Cleary Gottlieb Steen & Hamilton is instructed on complex bankruptcy issues that regularly require the input of the firm’s wider corporate, banking, capital markets and litigation departments.”
The US Legal 500 (2008)
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