In re Acis Capital Mgmt., L.P.

597 B.R. 327
CourtUnited States Bankruptcy Court, N.D. Texas
DecidedFebruary 13, 2019
DocketCASE NO. 18-30264-SGJ-11; CASE NO. 18-30265-SGJ-11
StatusPublished

This text of 597 B.R. 327 (In re Acis Capital Mgmt., L.P.) 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 Acis Capital Mgmt., L.P., 597 B.R. 327 (Tex. 2019).

Opinion

B. The Confirmed Plan D.

After approximately one year of contentious Chapter 11 proceedings, the court recently confirmed a plan proposed by the Chapter 11 Trustee in this case (which the parties have sometimes referred to as "Plan D"). Plan D essentially divorces Acis from Highland. Under Plan D, the Reorganized Debtor will continue on in the CLO management business and will use revenues therefrom (as well as potential litigation proceeds) to pay the allowed claims of its creditors. The Reorganized Debtor has engaged a registered investment advisor known as Brigade Capital Management, L.P. ("Brigade") to perform the services previously provided by Highland under the former Sub-Advisory Agreement and a firm called Cortland Capital Marketing Services LLC ("Cortland") to perform the services previously provided by Highland under the former Shared Services Agreement. Plan D is currently subject to a Notice of Appeal by Highland and related entities.

C. The Failed Plan A.

However, earlier in this case, the Chapter 11 Trustee proposed an entirely different plan (which he sometimes referred to as "Plan A") that was extremely contested and eventually not approved by the court. Specifically, Plan A contemplated a sale of Acis's CLO business to Oaktree. This Oaktree transaction was valued at approximately $108 million (the "Oaktree Transaction"). The Oaktree Transaction was objected to by Highland, and ultimately was not approved by the court. However, the aborted effort with Oaktree began with a motion filed on June 8, 2018, entitled Emergency Motion to Approve Break-Up Fee, Expense Reimbursement, and Replacement Sub-Advisory and Shared Services Provider, Oaktree Capital Management, L.P. (as subsequently *330supplemented, the "Oaktree Motion ").3 It is this Oaktree Motion that is at the heart of the current contested matter.

D. The Three Forms of Relief Sought by the Oaktree Motion.

The Oaktree Motion can be broken down as seeking three forms of relief.

(i) Break-Up Fee Request.

First, after explaining in substantial detail the very complicated Oaktree Transaction and attaching a signed Commitment Letter that provided even more detail, the Chapter 11 Trustee sought approval to pay Oaktree a potential $1,750,000 "Initial Break-Up Fee" if the Oaktree Transaction did not occur in an initial time period, and then a potential $750,000 "Extended Break-Up Fee" if the Oaktree Transaction did not occur during an extended defined time period-and, together, these were referred to collectively as the "Break-Up Fee" (potentially a $2,500,000 Break-Up Fee).

(ii) Expense Reimbursement.

Second, the Chapter 11 Trustee sought approval to reimburse the reasonable expenses to Oaktree (the "Expense Reimbursement") if the Oaktree Transaction was not ultimately approved by the bankruptcy court. A Term Sheet was attached to the Commitment Letter ("Oaktree Term Sheet") and it elaborated that this included the "reasonable and documented out-of-pocket costs and expenses in connection with the Transaction (including costs and expenses incurred prior to the date hereof), including, without limitation, reasonable and documented out-of-pocket due diligence, legal (limited to one primary transaction counsel, together with any local, tax or regulatory counsel deemed reasonably necessary) and transportation fees and expenses (collectively, 'Oaktree Expenses')." There was no cap on the Expense Reimbursement except for a reasonableness standard.4

(iii) Interim Replacement of Sub-Advisory and Shared Services Provider.

Third, the Oaktree Motion also requested approval for the Chapter 11 Trustee to engage Oaktree within 30 days (sooner than the Oaktree Transaction might be approved in Plan A) to provide, at least on an interim basis, the services that Highland had previously been providing under the Sub-Advisory Agreement and the Shared Services Agreement. To be clear, the Chapter 11 Trustee wanted to engage Oaktree as soon as possible (regardless of what might happen with Plan A, or future plans) since Oaktree was willing to provide the services that Highland was providing under the Sub-Advisory and Shared Services Agreements, on an interim basis, at a much cheaper cost (approximately 20 basis points versus 35 basis points for the CLOs). A chart on page 7 of the Oaktree Motion , as well as a term sheet attached to the Oaktree Motion , at p. 12, if one studied them both carefully, indicated that there was a "12 month minimum term or equivalent revenue" associated with Oaktree's offer to provide interim services on four of the Acis CLOs5 at the 20 basis point rate. Note that Highland had already sought to terminate *331the Sub-Advisory Services and Shared Services Agreements with Acis early on in the case,6 and the Chapter 11 Trustee wanted to end arrangements with Highland sooner rather than later, no matter what happened ultimately with the Oaktree Transaction and Plan A.

The Chapter 11 Trustee subsequently filed a Supplemental Motion to Break-Up Fee Motion Seeking Court Approval of Procedures to Confirm Plan Funder , on June 26, 2018.7 This pleading is not material to the dispute at hand-it merely addressed procedures to entertain competing proposals to Oaktree's.

Then, Oaktree filed a Notice of Filing of Amended Commitment Letter, on July 7, 2018.8 Again, this is not material to the dispute at hand. However, the court notes certain language that appeared on the very last page (p. 14) of the Oaktree Term Sheet that was attached to the Commitment Letter (both as originally submitted on June 8, 2018 and in the amendment filed on July 7, 2018), in a section entitled "Please list conditions to any of the above," which this court will henceforth refer to as the "Equivalent Revenue Provision":

Break-up Fee paid will be credited against any unpaid 'equivalent revenue' under the sub-advisory and shared services agreements, such that Oaktree will receive the higher of the Break-up Fee or the remaining equivalent revenue under the sub-advisory and shared services agreements .

This same language was within a chart in the body of the Oaktree Motion on pages 7-8.

The court conducted a multi-hour hearing regarding the Oaktree Motion on July 6, 2018, with five witnesses. The court approved the Oaktree Motion , as supplemented and amended (i.e., all three requests for relief in the Oaktree Motion ), in an order dated July 10, 2018 (the "Oaktree Order ").9 The court notes that the Equivalent Revenue Provision (and the minimum 12-month term) was never mentioned at the hearing at all. It was also not mentioned in the Oaktree Order . However, to be clear, the concept of a 12-month minimum term and the Equivalent Revenue Provision were on pages 7-8 of the Oaktree Motion and the Oaktree Order approved the Oaktree Motion . Highland has appealed the Oaktree Order , but did not obtain a stay pending appeal.

E.

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Bluebook (online)
597 B.R. 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acis-capital-mgmt-lp-txnb-2019.