Oil and Gas

Second Circuit Affirms Sabine: New Focus on Horizontal Privity Requirement May Affect Oil and Gas Gathering Agreement Terms

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The Sabine Oil & Gas Corp. chapter 11 bankruptcy has been closely watched by many for guidance on how to structure midstream gathering agreements between upstream producers and midstream gatherers (who gather, transport and process oil and gas after it has been extracted from the land). On May 25, 2018, the U.S. Court of Appeals for the Second Circuit held that the debtor, Sabine, had the right to reject gathering agreements with two midstream companies. In re Sabine, 2018 WL 2386902 (2d. Cir. May 25, 2018). In the Sabine agreements, Sabine had agreed to dedicate all of the gas produced from a designated area for processing by one of the midstream gatherers.

Looking to Texas law, the Second Circuit ruled that for the agreements to be treated as covenants “running with the land” immune from such rejection by the debtor, there would have to be horizontal privity relating to the land. For horizontal privity to exist, there must be a common interest in the land in addition to the applicable covenant at the time of the agreement. For example, horizontal privity exists where Party A conveys a fee interest in real property in fee to Party B, if as part of the same transaction Party B grants Party A a leasehold interest over the conveyed real property. Because, in the view of the Second Circuit, there was no such privity in the Sabine case, the agreements were subject to rejection.

The Second Circuit’s rationale surprised some because the district court had relied on a different theory in allowing the rejection of the agreement. Because the Second Circuit’s ruling was made by summary order and was not intended to have precedential effect, and because it speaks to Texas law, the decision will have limited, if any, precedential value. Nonetheless, this Second Circuit ruling will be looked at by other courts facing similar issues, and may have some persuasive value. As a result, practitioners may want to examine their approach to midstream gathering and services agreements and whether their agreements should be structured to ensure that horizontal privity exists between the parties.

Case History and Differing Grounds for Decisions READ MORE →

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

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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).

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Burst Pipeline? Bankruptcy Court Rules Sabine Can Reject Midstream Contracts

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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.

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

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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

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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

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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

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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

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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.

The Restructuring Mid-Summer Review: Europe and the Emerging Markets

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For those focused on the debt restructuring market, the Greek sovereign crisis (covered extensively in our recent updates1) has drowned out news of other debt restructuring matters this year. Our Alert below addresses key trends in Europe and the Emerging Markets this year which may have gone unnoticed given the understandable emphasis on Greece.

Opportunities for Distressed Debt Funds to buy attractively priced distressed corporate assets and work them out have been few and far between in recent terms. Prices of distressed assets have been high, and often par lenders have decided to extend and amend loans (rather than engage in loan sales to funds or effect fundamental work outs of problem loans). Risk has not been fairly reflected in the price of either primary or secondary market debt. The risk/reward dynamic has been skewed in favour of high risk and low yields; not an attractive combination. The main driver of the activities of Distressed Debt Funds is the default rate. In the 2015 Deutsche Bank Annual Default Survey, Deutsche Bank commented, ‘We can’t overstate how low defaults are…the 2010-2014 cohort [of High Yield Bonds] is the lowest 5 year period for HY defaults in modern history’. Hence, the low level of distressed debt activity.

Poor European growth rates, the difficult backdrop of the Greek debt restructuring talks, and major geopolitical risk, have yielded surprisingly few loan defaults and insolvencies in recent times. In Europe, restructuring activity has tended to be concentrated more in Southern than Northern Europe.

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2015 Oil & Gas Outlook Follow-Up Report

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oilgasfollowupOrrick’s Restructuring Practice Chair, Raniero D’Aversa, recently sat on The Deal Pipeline’s expert panel, a 60 minute round table which addressed the present issues in the oil and gas industry and provided viewers with an insight into the key factors for their success in 2015.

Please click here here for this follow-up report.