In re 4 W. Holdings, Inc.

593 B.R. 448
CourtUnited States Bankruptcy Court, N.D. Texas
DecidedNovember 27, 2018
DocketCase No. 18-30777 (HDH)
StatusPublished

This text of 593 B.R. 448 (In re 4 W. Holdings, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re 4 W. Holdings, Inc., 593 B.R. 448 (Tex. 2018).

Opinion

Harlin DeWayne Hale, United States Bankruptcy Judge

In this case, the Court is called on to consider whether the proposed modification of a plan prior to confirmation will materially and adversely change the treatment of a creditor's claim in order to determine whether the creditor's prior acceptance of the plan should be deemed an acceptance of the modified plan pursuant to Bankruptcy Rule 3019(a). The unique trajectory of this case, however, has greatly complicated what would normally be a straightforward inquiry.

I. Background

The above-captioned debtors (the "Debtors") were licensed operators of over forty skilled nursing facilities across seven states (the "Facilities").1 The Debtors occupied almost all of these facilities as lessees renting from certain affiliates and subsidiaries of Omega Healthcare Investors, Inc., a publicly traded real estate investment trust (collectively with its affiliates and subsidiaries, "Omega") pursuant to three master leases (the "Master Leases").2

As discussed in the Declaration of Louis E. Robichaux IV in Support of Chapter 11 Petitions and First Day Pleadings [Docket No. 19] (the "First Day Declaration"), the performance of the Facilities was negatively impacted by industry headwinds, regulatory actions at certain Facilities, and an inefficient geographic footprint in certain regions in the United States. Ultimately, the Debtors' rent obligations to Omega under the Master Leases were significantly higher than the Debtors' operating income could support. By the Debtors' estimates, as of the time they filed for *450bankruptcy, they owed approximately $14 million to Sterling National Bank ("Sterling") under a senior secured credit facility, $52 million to Omega as rent due under the Master Leases, $15 million to Omega under a working capital loan,3 and $67 million to unsecured trade creditors.

Pre-Bankruptcy Planning

Prior to filing for bankruptcy, the Debtors explored various strategic alternatives relating to their existing debt obligations and eventually struck a deal with Omega. The deal provided the Debtors with a path to a successful reorganization but did not guarantee that the Debtors would get there. The Debtors would file for bankruptcy, and Omega would provide with them with debtor-in-possession financing (the "DIP Facility"). During the bankruptcy, Omega would agree to the deemed severability of the Master Leases so that the Debtors could reject the leases for roughly half of the Facilities (the "Transfer Portfolio"), allowing Omega to lease those Facilities to new operators. Omega would also agree to the deemed recharacterization of the leases for the remaining Facilities as secured loans (the "Restructuring Portfolio") so that the Debtors could then own those Facilities and put them through a marketing and sale process. The proceeds from that sale process, along with the Debtors' cash on hand, would then be used to fund a plan of reorganization. The agreed-upon transactions were intended to "allow the Debtors to resolve their legacy and contingent liabilities in a comprehensive manner, remove the litigation overhang, transfer certain underperforming Facilities to new operators in an efficient and structured manner, and above all, provide certainty regarding the Debtors' future operations for all of the Debtors' stakeholders including, most importantly, the Debtors' residents, employees, and vendors." First Day Declaration at ¶ 59.

This plan was memorialized in the Restructuring Support Agreement (as subsequently amended, the "RSA")4 entered into by the Debtors, Omega, and SC-GA 2018 Partners, LLC (the "Plan Sponsor" or the "Purchaser") on March 6, 2018. Among other things, the RSA contained (i) a commitment from the parties to support, pursue, and consummate the contemplated transactions for the Transfer Portfolio and the Restructuring Portfolio, (ii) a commitment from the Debtors to adhere to numerous milestones in the bankruptcy cases, (iii) an outline for the marketing and bidding process to be pursued in the bankruptcy cases, (iv) an agreement by Omega to reduce the Debtors' rent obligations during the bankruptcy cases, (v) a commitment by Omega to provide the Debtors with the DIP Facility and the ability to use cash collateral, (vi) a commitment by the Plan Sponsor to essentially act as a stalking horse bidder for the Restructuring Portfolio, (vii) a commitment from the Debtors to support the approval of releases contemplated in the RSA, and (viii) a commitment by the parties to support a plan of reorganization. The RSA was extensive and included, among other form documents, a form plan of reorganization.

Implementing the Pre-Bankruptcy Plans

On March 6, 2018 (the "Petition Date"), the Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code, commencing these cases (the "Chapter 11 Cases"). Early in the Chapter 11 Cases, the Debtors obtained approval of a *451settlement agreement with Omega (as amended by the order approving it, the "9019 Settlement").5 Pursuant to the 9019 Settlement, the Master Leases were deemed severable, and the leases with respect to the Transfer Portfolio were deemed rejected. The leases and agreements with respect to the Restructuring Portfolio were, subject to confirmation of the Debtors' proposed plan of reorganization, deemed recharacterized as secured financings. Omega provided the DIP Facility, accepted reduced rent from the Debtors, and waived its right to receive any distribution on account of its unsecured deficiency claim. The Debtors also sought and obtained approval of the DIP Facility, which, among other things, provided working capital for the Debtors and paid off the entirety of the senior secured debt owed to Sterling.6 A few weeks after the 9019 Settlement was approved and the Final DIP Order was entered, the Court entered the Order Authorizing the Debtors' Assumption of the Restructuring Support Agreement [Docket No. 506].

On June 22, 2018, the Debtors filed the Debtors' Third Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code [Docket No. 615] (the "Original Plan"). Relevant to the matter currently before the Court, under the Original Plan, the Restructuring Portfolio was going to be sold to the Plan Sponsor in exchange for the Plan Sponsor Consideration7 pursuant to the Stock Purchase Agreement. Omega's DIP Facility Claims would be paid in full on or before the Effective Date in cash from the Accounts Receivable. Omega's Class 1 Claim (the "Omega Secured Claim") would receive (i) the Plan Sponsor Consideration and (ii) any remaining Distribution Trust Assets, other than the General Unsecured Claims Cash Amount, following payment in cash of, or adequate reserve for, Allowed Administrative Claims, Allowed Priority Tax Claims, Allowed Other Priority Claims, Allowed Secured Tax Claims, Allowed Other Secured Claims, and the Tort Claims Cash Amount. Omega's Class 4 Claim (the "Omega Unsecured Claim") was not entitled to receive any distribution because Omega waived its right to receive any such distribution in the Omega Compromise.

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Cite This Page — Counsel Stack

Bluebook (online)
593 B.R. 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-4-w-holdings-inc-txnb-2018.