Raniero D'Aversa

Partner

New York


Read full biography at www.orrick.com

Raniero (Ron) D’Aversa is chair of Orrick’s Restructuring group. He is a market-leading practitioner in bankruptcies, out-of-court restructurings and creditors’ rights controversies and brings years of experience representing DIP lenders, secured lenders, bank groups and hedge funds in those capacities.

Ron is the designated restructuring counsel to many leading financial institutions such as The Royal Bank of Scotland, Bank of America, Citibank, Commerzbank, Wells Fargo, Toronto-Dominion Bank and The Bank of Nova Scotia. He has represented clients in loan bankruptcies, workouts, DIP loans, distressed debt trading, bankruptcy litigation, derivatives and distressed acquisitions. Ron has represented creditor interests of financial institutions and investors in such restructuring and bankruptcy cases as Indiana Toll Road, Pocahontas Parkway, Eagle Bulk, Spyglass Films, American Airlines, Chemtura Corporation, AbitibiBowater and Mesa Airlines.

Ron’s clients praise his “clear and direct advice.” He is regarded by his clients and peers as a leader in financial restructurings. Because of his experience, Ron understands every phase of a bankruptcy and restructuring matter and knows how to effectively position a client to control opposition and maximize results.

  • Recent Restructurings: represented agents in restructurings of: film slates deals; toll roads; leveraged to premium-financed life settlement portfolios; leveraged charged-off receivables portfolios; a $350 million syndicated loan to a Mexican telecommunications provider; a $100 million syndicated loan to a medical equipment supplier; loans to charged-off receivables portfolios; and syndicated loans to a domestic wireless provider, metals refinery and airline catering business. Represented lenders in peaceful possession and surrender of a diamond wholesaler. Represented significant lenders and derivative counterparties in recent restructurings of Xerox, Huntsman, Foster-Wheeler, NRG Energy and Dynegy.
  • Recent Syndicated Loan Workouts: represented ABN Amro Bank NV, Banco Santander, The Bank of Nova Scotia, Bank of America, Bank of Montreal, Crédit Agricole, Commerzbank, Depfa Bank, LaSalle Bank, Royal Bank of Scotland, Toronto-Dominion Bank, Wells Fargo and West LB as agents or lenders in workouts and bankruptcies involving syndicated senior loan facilities.
  • Recent Bankruptcy Cases: represented prepetition Agent and/or D-I-P Agent in the bankruptcy cases of: Cengage Learning, Genco Shipping, Wilmington Trust, AbitibiBowater, Lehman Brothers, Quebecor, VICORP, Ritchie Risk-Linked Strategies, Sea Containers, New Century Financial, Desert Power, M. Fabrikant & Sons, Star Diamond Group, W.B. David, L.I.D. Group, Boyds Collection, Enesco Group, Inc., Malden Mills, Tokheim Corporation, The Loewen Group, Singer Sewing Company, Prime Succession I and Prime Succession II, AlphaStar Television Network, Global Information Technologies, Great Lakes, Inc., International Wireless Communications Holding and Enron.
  • Aviation and Shipping Restructurings and Bankruptcies: represented agents, lenders and other financing parties in domestic leveraged leases, cross-border leases, EETCs, liquidity facilities and mortgage indentures in the US Air I, US Air II, United Airlines, Northwest Airlines, Delta Airlines, Atlas Air and Genco Shipping bankruptcies, Citigroup in the purchase, sale and restructuring of claims, loans and/or leases relating to over 100 aircraft for American Airlines, Inc., and in the out-of-court restructurings of Eagle Bulk Shipping, a major U.S. commercial airline and the nation’s largest domestic cargo carrier.
  • Infrastructure and Project Finance Restructurings: represented the steering committee in the restructuring of $6 billion debt of the operator of the Indiana Toll Road and the borrowers in the restructuring of $400 million debt obligation to various lenders and the TIFIA of Pocahontas Parkway. Represented agents in restructuring of project facility with Permaclear and Wellman, Inc. Represented project lenders in bankruptcies of Desert Power, Gen Holdings (PG&E National Energy group) and Ponderosa Pine Energy Partners. Represented swap issuers in restructurings of the Granite Ridge Energy, LLC, project facility and the Marianas Energy project facility.
  • Structured Investment Restructurings: represented noteholders, liquidity providers and/or swap counterparties in restructurings and enforcement proceedings in complex structured investment vehicles, commercial paper conduits and other structured products, including student loan asset backed trusts and CDOs, life settlement portfolios, charged-off receivables and film slates.
  • Diamond and Precious Metal Bankruptcies: represented secured lenders in domestic and cross-border diamond and jewelry bankruptcy cases, including M. Fabrikant & Sons, L.I.D. Group, Star Diamond Group and W.B. David.
  • Synthetic Lease Bankruptcies: represented synthetic lessors in Mariner Post-Acute Network and The Washington Group International bankruptcy cases.
  • Creditors’ Committees: represented the Official Committees of Unsecured Creditors in the Chapter 11 cases of Spectrum Information Technologies, Inc., Arbor Computers, Fulton Computer Products and Programming Ltd., Advanced Interlink and Alexander Doll Company, Inc.

Posts by: Raniero D'Aversa

Third Circuit Departs from Momentive and Reinstates EFIH Noteholder Make-Whole Claims Causing Uncertainty over EFH’s Ability to Exit Bankruptcy

Recently, the Third Circuit reversed decisions issued by the Delaware Bankruptcy and District Courts and permitted first and second lien noteholders of Energy Future Intermediate Holding Company LLC and EFIH Finance Inc. to receive payment of a make-whole premium. In re Energy Future Holdings Corp., No. 16-1351 (3d Cir. Nov. 17, 2016).  The decision, which is largely grounded in New York law, departs from recent controversial decisions issued by the Bankruptcy Court and District Court for the Southern District of New York in the Momentive bankruptcy, which we have previously discussed here and here.  In Momentive, the courts reached the opposite conclusion on substantially similar facts.  In Momentive, the courts reached the opposite conclusion on substantially similar facts.  In addition to creating a split between the Third Circuit and the Southern District of New York, the ruling creates uncertainty regarding the ability for the debtors in the long-running EFH bankruptcy to confirm their proposed chapter 11 plan. READ MORE

New LSTA Par Confirm Penalizes Buyers for Settlement Delays

 

In an effort to reduce settlement times, the Loan Syndications and Trading Association (the “LSTA”) recently revised its standard par loan trading documents to penalize buyers who take too long to settle. Beginning September 1, 2016, buyers who fail to fulfill their obligations to timely settle par loan trades will forfeit the right to receive interest that accrues prior to the settlement date. The changes do not apply to loans trading on distressed documents.

The LSTA’s revisions represent the trade group’s most aggressive step to combat settlement delays. The revisions are also the most consequential changes to the LSTA’s standard par trading documents in years.

Under the current version of the LSTA’s Standard Terms and Conditions for Par/Near Par Trade Confirmations (the “Standard Terms”), buyers are automatically compensated for interest that accrues on a loan during the period beginning on the seventh business day after the trade date up through the settlement date (“Delayed Compensation”). Starting on September 1, 2016, this provision will no longer be automatic. Instead, par loan buyers will only be entitled to Delayed Compensation if they satisfy several new requirements, including paying the purchase price to the Seller in accordance with specific timing requirements (the “Delayed Compensation Prerequisites”). The LSTA believes that the Delayed Compensation Prerequisites will create a new sense of urgency for buyers to close trades and discourage buyers from tying up sellers’ balance sheets. READ MORE

Not So Fast – Supreme Court Holds Prepetition Fraudulent Transfer Precludes Post-Petition Discharge in Husky International

One of the goals of the Bankruptcy Code is to provide a debtor with a fresh start. The discharge of prepetition debts at the conclusion of a bankruptcy case is one of the most important ways to attain this fresh start.  On May 16, 2016, the Supreme Court made it harder for debtors to obtain a fresh start by broadening an exception to discharge.

Section 523(a)(2)(A) of the Bankruptcy Code provides that an individual debtor is not discharged from any debt “for money, property [or] services … to the extent obtained by false pretenses, a false representation, or actual fraud[.]” Circuits split as to whether actual fraud under Section 523(a)(2)(A) requires an affirmative misrepresentation; the Fifth Circuit had held that this was a necessary element to prevent discharge, but the Seventh Circuit had held that “actual fraud” encompassed a broader range of behaviors.

The Supreme Court resolved this split, rejecting the Fifth Circuit’s narrow interpretation and finding that the term “actual fraud” does not need to include an affirmative misrepresentation by the debtor. With this broader reading, debtors will be unable to discharge prepetition debts where there is evidence that they inappropriately siphoned of their assets prior to filing for bankruptcy. Husky Int’l Elecs., Inc. v. Ritz, No. 15-145, 2016 WL 2842452 (U.S. May 16, 2016). READ MORE

Burst Again: Sabine Bankruptcy Court Issues Binding Ruling Finding No Covenants Running with Land

Earlier this year, we covered Judge Shelley Chapman’s ruling in the Sabine bankruptcy, permitting the Debtors to reject a handful of gathering and other midstream agreements. Previously, Judge Chapman permitted rejection on the grounds that the Debtors exercised their reasonable business judgement in doing so.  At that time, the Court issued a “non-binding” ruling on whether the agreements were (or contained) “covenants running with the land” that would have rendered rejection impossible or useless.

On May 3, 2016, approximately six weeks later, Judge Chapman reached a final “binding” ruling on this open issue – holding that the contracts do not constitute (or include) covenants running with the land, and can be rejected in full. The Court largely reiterated its prior analysis – and even attached the prior opinion to the new opinion.  The Court also noted for the first time that, if the contracts had contained covenants affecting the value and use of the real property, they likely would have defaulted the Debtors’ credit facility.  Mem. Decision on Motions of Nordheim Eagle Ford Gathering, LLC et al. at 11, In re Sabine Oil & Gas Corp., No. 15-11835 (Bankr. S.D.N.Y., May 3, 2016).

READ MORE

Burst Pipeline? Bankruptcy Court Rules Sabine Can Reject Midstream Contracts

Bankruptcy Judge Shelley Chapman held that Sabine Oil & Gas Corp. has satisfied the standards for rejection of several gathering and handling agreements between Sabine and its midstream counter-parties, Nordheim Eagle Ford Gathering, LLC and HPIP Gonzales Holdings, LLC. The ruling has limits.  The matter ultimately turns on whether certain covenants “run with the land” under Texas law.  While the Court held that Sabine exercised reasonable business judgment in rejecting the agreements, the Court declined to decide “in a binding way the underlying legal dispute with respect to whether the covenants at issue run with the land,” and instead offered a “non-binding” analysis to determine the reasonableness of Sabine’s rejection.  Thus, if the counter-parties can demonstrate that the covenants do run with the land in an adversary proceeding, Sabine may not be able to terminate those covenants. In re Sabine Oil & Gas Corp., No. 15011835 (SCC) (Bankr. S.D.N.Y. Mar. 8, 2016).

How did Judge Chapman come to this ruling and how will it affect agreements between upstream and midstream providers? See below for background on this case, the two main arguments and an analysis of potential implications this case may have, particularly on midstream counter-parties who may have thought they were protected from upstream credit risk.

READ MORE

Oil & Gas Bankruptcy Issues: Part 5 Bankruptcy Issues for Secured Creditors

Part 5: Bankruptcy Issues for Secured Creditors

In the final installment of this series on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz survey the bankruptcy landscape for the oil & gas industry in the current low-price climate, outlining strategic reasons for bankruptcies, how unencumbered assets make for an atypical bankruptcy case, and how valuation and new borrower options could ultimately lead to adversarial cases.

If you wish to skip ahead, select one of the below topics:

Where will the next bankruptcy filings occur?

How will financing play out in these bankruptcy cases and what are the important variables to consider?

What are some of the unique issues associated with sales in these cases?

What are the new options available to borrowers in these cases?

How will valuation, cramdowns and unencumbered collateral affect these cases?

For additional posts in this series, please click here: Part 1, Part 2, Part 3, Part 4.

Oil & Gas Bankruptcy Issues: Part 4 Liens in Bankruptcy Cases

Part 4: Liens in Bankruptcy Cases

In this fourth of five videos on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz go over the often complicated process of securing liens for oil & gas operations, explaining what RBL liens typically attach to and how the liens compete with others invested parties.

If you wish to skip ahead, select one of the below topics:

What assets do RBL liens cover?

In addition to oil, what do liens typically attach to?

Would the lien still attach to the oil once it has been extracted?

How do liens that an RBL lender holds compete with other liens?

For additional posts in this series, please click here: Part 1, Part 2, Part 3, Part 5.

Oil & Gas Bankruptcy Issues: Part 3 Unique Structuring Issues

Part 3: Unique Structuring Issues

In this third of five videos on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz explore the unique ways in which oil & gas interests are transferred, how these interests are treated in bankruptcy and offer clues as to what courts will look at when issues concerning carved-out interests arise.

If you wish to skip ahead, select one of the below topics:

How are oil & gas interests treated in bankruptcy cases?

How have courts weighed in on leases concerning oil & gas interests?

What are carved-out interests and how do they work?

How are carved-out interests treated in bankruptcy cases?

For additional posts in this series, please click here: Part 1, Part 2, Part 4, Part 5.

Oil & Gas Bankruptcy Issues: Part 2 Typical Deal Structures and Financings

Part 2 Typical Deal Structures and Financings

In this second of five videos on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz discuss oil & gas deal structures and oil & gas financings.

If you wish to skip ahead, select one of the below topics:

What are the typical kinds of deals operators employ?

What is the typical deal structure for a reserve-based loan (RBL)?

How does the borrowing base work?

What is the process for redetermining borrowing bases?

What role do hedges play in the borrowing base redeterminations?

What is your view on how the spring redetermination process effected companies and what should we expect for the fall?

What happens if there is a major spike or decrease in price in the middle of the redetermination process?

For additional posts in this series, please click here: Part 1, Part 3, Part 4, Part 5.

Oil & Gas Bankruptcy Issues: Part 1 Current Industry Situation and Background

Part 1: Current Industry Situation and Background

In this first of five videos on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz discuss changes the industry has seen in recent months and how these changes are affecting oil & gas companies.

If you wish to skip ahead, select one of the below topics:

What can oil & gas companies do to deal with these issues?

How are the capital markets responding to this situation?

How are these new deals going for lenders and investors?

What should lenders and investors be focused on right now?

For additional posts in this series, please click here: Part 2, Part 3, Part 4, Part 5.