U.S. Bank National Ass'n v. Wilmington Savings Fund Society (In re MPM Silicones, LLC)

531 B.R. 321
CourtUnited States Bankruptcy Court, S.D. New York
DecidedMay 4, 2015
DocketNos. 14 CV 7471(VB), 14 CV 7472(VB), 14 CV 7492(VB)
StatusPublished
Cited by13 cases

This text of 531 B.R. 321 (U.S. Bank National Ass'n v. Wilmington Savings Fund Society (In re MPM Silicones, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Bank National Ass'n v. Wilmington Savings Fund Society (In re MPM Silicones, LLC), 531 B.R. 321 (N.Y. 2015).

Opinion

MEMORANDUM DECISION

BRICCETTI, District Judge.

This case involves related appeals from proceedings in the United States Bankruptcy Court for the Southern District of New York (Robert D. Drain, Judge), during which the Joint Chapter 11 Plan (the “Plan”) of Reorganization for Momentive Performance Materials Inc. (“MPM”) and its affiliated debtors (collectively with MPM, the “Debtors”) was confirmed.

The Debtors filed a Chapter 11 petition on April 13, 2014. After several months of negotiations, Judge Drain held a multi-day confirmation hearing and issued a bench decision on August 26, 2014, which was later corrected and modified in a bench decision on September 9, 2014. On September 11, 2014, Judge Drain issued a written order to effectuate the bench decisions. These appeals stem from the September 9, 2014, bench decision and the September 11, 2014, written order (the “Orders”).

Appellant U.S. Bank National Association (“U.S. Bank”) contends the Bankruptcy Court erred in confirming the Plan despite the Plan’s failure to provide any distributions to holders of subordinated notes (the “Subordinated Notes”) issued pursuant to an indenture agreement dated December 4, 2006 (the “2006 Indenture”).

Appellants BOKF, N.A., and Wilmington Trust, National Association, contend the Bankruptcy Court chose the wrong cramdown interest rate and erred in confirming the Plan despite the Plan’s failure to provide a “make-whole” payment to holders of senior lien notes issued pursuant to indentures dated May 25 and October 25, 2012 (the “2012 Indentures”).

For the following reasons, the Bankruptcy Court’s Orders are AFFIRMED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 158(a).

BACKGROUND

MPM, together with its Debtor and non-Debtor subsidiaries (collectively, the “Company”), is one of the world’s largest producers of silicones and silicone derivatives, which are used in the manufacture of a myriad of industrial and household products. The Company began as the Advanced Materials business of General Electric Company (“GE”). In 2006, investment funds affiliated with Apollo Global Management, LLC (collectively, “Apollo”), acquired the Company from GE.

I. Facts Leading up to Bankruptcy

At the time Apollo acquired the Company, the Debtors issued substantial debt obligations, including the Subordinated Notes. The Subordinated Notes were issued pursuant to the 2006 Indenture,1 [325]*325which describes the relative ranking of the Subordinated Notes in comparison with other debt obligations issued by the Debtors. The 2006 Indenture provides that the Subordinated Notes are “subordinated in right of payment ... to the prior payment in full of all existing and future Senior Indebtedness of the Company.” (U.S. Bank Ex. D, § 10.01). Senior Indebtedness is defined, in relevant part, as:

all Indebtedness ... unless the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such obligations are subordinated in right of payment to any other Indebtedness of the Company[;] [the “Base Definition”] ... provided, however, that Senior Indebtedness shall not include, as applicable 4) any Indebtedness or obligation of the Company ... that by its terms is subordinate or junior in any respect to any other Indebtedness or obligation of the Company ... including any Pari Passu Indebtedness.

(Id., § 1.01).

In 2010, the Debtors issued springing second lien notes (the “Second Lien Notes”). The Second Lien Notes were unsecured when issued, but would become secured if all second lien notes issued in 2009 were redeemed. When the Second Lien Notes were issued, the Debtors stated that “[p]rior to and following the Springing Lien Trigger Date, the [Second Lien] Notes ... will be senior indebtedness” and rank “senior in right of payment to ... the Company’s existing subordinated notes.” (Debtors’ Subordinated Notes Ex. 3). In November 2012, the Second Lien Notes became secured by a junior lien — that is, the hen “sprung” — because all of the second hen notes issued in 2009 were redeemed.

In 2012, the Debtors issued two additional classes of senior secured notes — the 1.5 Lien Notes and the First Lien Notes (collectively, the “Senior Lien Notes”). The 1.5 Lien Notes were issued at an interest rate of 10% pursuant to an indenture dated May 25, 2012, and the First Lien Notes were issued at an interest rate of 8.875% pursuant to an indenture dated October 25, 2012.2 The Senior Lien Notes had a maturity date of October 15, 2020.

In addition, the Senior Lien Notes provide for the payment of a “make-whole” premium if the Senior Lien Notes are redeemed before October 15, 2015:

[P]rior to October 15, 2015, the Issuer may redeem the [Senior Lien] Notes at its option, in whole at any time or in part from time to time ... at a redemption price equal to 100% of the principal amount of the [Senior Lien] Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the applicable redemption date.

(Senior Lien Appellants Ex. C1(A), ¶ 5).3 The Applicable Premium is the make-whole payment.

However, the 2012 Indentures, which govern the Senior Lien Notes, contain an acceleration provision. The acceleration provision is triggered upon an “Event of Default,” which includes the voluntary commencement of a bankruptcy proceeding. (Senior Lien Appellants Ex. Cl, §§ 6.01(f), 6.02). If such an Event of Default is triggered, “the principal of, premi[326]*326um, if any, and interest on all the [Senior Lien] Notes shall ipso facto become and be immediately due and payable.” (Id., § 6.02).

The Senior Lien Notes, along with certain other debt (collectively, the “Senior Secured Loans”) are secured by the same collateral (the “Common Collateral”) as the Second Lien Notes. An intercreditor agreement (the “Intercreditor Agreement”) governs the relationship between the classes of notes. The Intercreditor Agreement provides that the Second Lien Notes are subordinated to the Senior Secured Loans with respect to their position in the Common Collateral. {See U.S. Bank Ex. F § 2). Moreover, the Intercreditor Agreement provides that it does not alter the Second Lien Noteholders’ rights as unsecured creditors. (Id. § 5.4).

II. The Plan

The Plan provides no distributions to the holders of the Subordinated Notes.

The Plan also provides that if the holders of the Senior Lien Notes vote in favor of the plan, all outstanding principal and accrued interest on the Senior Lien Notes would be paid in cash to the Senior Lien Noteholders on the effective date of the Plan. (U.S. Bank Ex. A §§ 5.4(a), (b)(i); 5.5(a), (b)(1)).4 However, no make-whole premium would be allowed. (Id. §§ 5.4(a); 5.5(a)). According to the Plan, if the holders of the Senior Lien Notes vote against the Plan, they would receive “Replacement ... Notes [the “Replacement Notes”] with a present value equal to the Allowed amount of such holder’s Claim,” which could&emdash;at the Bankruptcy Court’s discretion&emdash;include a make-whole premium. (Id.

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