Rhode Island news
Not all creditors may get paid in bankruptcy
01:00 AM EDT on Wednesday, June 24, 2009
PROVIDENCE — The federal bankruptcy filing early Tuesday by the owners of Twin River is almost certain to leave some groups with less money than they expected to get from their dealings with the slot parlor –– and there is the possibility that the state could be among those disappointed.
“It’s truly an exception for all creditors to receive payment in full,” said Richard M. Meth, a lawyer with the New Jersey law firm Day Pitney LLP and a member of the board of the American Bankruptcy Institute. “In the vast majority of instances creditors either receive a few cents on the dollar or end up getting stock in the company.”
BLB Investors, the joint venture that runs Twin River through UTGR Inc., is trying to work its way out of debt with a request to reorganize its finances with the U.S. Bankruptcy Court.
The owners chose to file their request under Chapter 11 of the bankruptcy law –– the usual route for large businesses. The filing allows businesses to put off paying some bills, such as loan payments.
Most Chapter 11 filings are voluntary, though a small number are forced by people seeking money for goods or services provided to a company.
The debtor, in this case UTGR, usually remains in possession of its business and operates under court supervision, selling goods, paying day-to-day expenses and even borrowing more money.
Usually, the bankruptcy judge will appoint a trustee to run the business.
That’s what happened in the case of Newport Creamery, when a Providence lawyer spent months running the restaurant chain and three years handling its legal affairs. At one point, the lawyer sued the Creamery’s former owners alleging that they siphoned money out of the chain for personal use.
A creditors committee is usually appointed by the trustee — part of an arm of the U.S. Department of Justice that acts essentially as an administrator in dealings between the debtor and the creditors. The committee comprises representatives of the 20 largest, unsecured, creditors.
Unlike a secured creditor — say, a bank that’s lent money to a business that posts property as collateral — unsecured creditors have nothing on which they can lay claim to settle a bill, a building for instance.
“All it has is a promise” to be paid, said John Chung, a law professor at Roger Williams University.
The committee negotiates with the debtor over the reorganization plan.
“The creditors committee approval is not necessary for things to get done,” Chung said. “However, life for the debtor is difficult if the creditors committee objects.”
If UTGR can’t get the votes to confirm a plan, it can attempt to “cram down” a plan on creditors.
“I would regard cram-downs as certainly the exception rather than the rule,” Chung said. “When you’re in a cram-down situation … all the parties are taking their chances before the judge.”
The Twin River bankruptcy is not much different than other business bankruptcies, including the one made in 2008 by casino operator Tropicana Entertainment LLC. Earlier this month, a judge approved the sale of the Tropicana Casino and Resort to a group led by billionaire investor Carl Icahn. Icahn and his group canceled $200 million in debt from a $1.4 billion mortgage they hold on the Tropicana company in exchange for a casino in Atlantic City.
Merrill Lynch Capital (now an arm of Bank of America) and its lenders group could end up owning Twin River.
What is different is that the State of Rhode Island is involved, through the contract that gave BLB the right to own and run the Lincoln slot parlor.
“That’s the one thing that I see that might be different,” Chung said. “There are going to be public interest issues raised.”
Among the tactics a debtor can take in bankruptcy is rejecting, or ending, contracts that it has with landlords, suppliers and others. But the other parties to those contracts can object to those moves and a judge does not have to approve them as part of a reorganization plan.
It’s unclear at this point whether the arrangement between UTGR and the state, in which the state keeps 61 cents of every dollar lost by bettors at Twin River, will even be a matter brought before the court.
“The judge should know Rhode Island’s fiscal situation is going to be affected,” Chung said. “The state is going to make sure the judge knows that and it’s absolutely appropriate for the judge to know that.”
It’s unlikely a judge would force the state to take less money, said Meth, of the American Bankruptcy Institute.
“I doubt that the casino can say they don’t like the regulatory scheme,” Meth said. “I assume that’s a non-negotiable term.”
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