IN RE HAWAIIAN TELCOM COMMUNICATIONS, INC., No. 08-02005.
Decision Date | 30 December 2009 |
Docket Number | No. 08-02005. |
Citation | 430 B.R. 564 |
Parties | In re HAWAIIAN TELCOM COMMUNICATIONS, INC., et al. Debtors and Debtors-in-Possession. |
Court | U.S. Bankruptcy Court — District of Hawaii |
430 B.R. 564
In re HAWAIIAN TELCOM COMMUNICATIONS, INC., et al.1 Debtors and Debtors-in-Possession.
No. 08-02005.
United States Bankruptcy Court, D.Hawai'i.
December 30, 2009.
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF CONFIRMATION OF JOINT CHAPTER 11 PLAN OF REORGANIZATION OF HAWAIIAN TELCOM COMMUNICATIONS, INC., AND ITS DEBTOR AFFILIATES
LLOYD KING, Bankruptcy Judge.
INTRODUCTION ......................................................................... 569 FINDING OF FACT ...................................................................... 570 I. HAWAIIAN TELCOM BACKGROUND ....................................................... 570 A. History And Background ........................................................ 570 B. Events Leading To The Chapter 11 Cases ........................................ 570 C. Hawaiian Telcom's Restructuring Efforts ....................................... 571 1. Hawaiian Telcom's Strategic Business Plan and Next Generation Television ............................................................... 571 2. Out-Of-Court Efforts To Delever The Capital Structure ...................... 573 D. The Chapter 11 Cases .......................................................... 573 1. The Cash Collateral Order ............................................. 573 2. Operations During Chapter 11 .......................................... 574 3. Development Of The Plan ............................................... 574 II. THE PRIMARY CONTESTED ISSUES AT CONFIRMATION ..................................... 576 A. The Debtors' Enterprise Value ................................................. 576 1. The Debtors' Range of Enterprise Value Is Reasonable ....................... 577 (a) The Debtors' Range Of Enterprise Value Is Between $350 And $425 Million........................................................... 577 (b) The Lazard Enterprise Value Range Is Consistent With Houlinhan's Analysis .................................................. 577 (c) The Enterprise Value Range Is Consistent With The Market's Vies of Hawaiian Telcom ............................................... 577 2. All Valuation Experts Utilized Common Enterprise Valuation Methodologies ............................................................. 578 3. Lazard Exercised Appropriate Judgment In Evaluating The Debtors' Enterprise Value .......................................................... 578 (a) Lazard Properly Accounted For Hawaiian Telcom's Performance Relative To Peer Companies ............................................ 578 (b) Lazard's Valuation Is Supported By Hawaiian Telcom's Free Cash Flow Performance Metric .......................................... 579 (c) Lazard's DCF Analysis Accounted For Hawaiian Telcom's Management's Projections Without Ignoring Market Risks ................ 580 B. The Debtors Properly Valued The Unencumbered Assets ........................... 580 1. The Debtor's Value For The Motor Vehicles Is Appropriate And Unchallenged .............................................................. 580 2. The Debtors' Range Or Value For Unencumbered Real Property Hold In Fee Is Reasonable ................................................. 581 (a) The Debtors Reasonably Valued The Unencumbered Real Property At $31.7 Million ............................................. 581 (b) The Debtors' And Secured Lenders Experts' Testimony On Easements Establish That They Have No Market Value .................... 581
(c) The Debtors Would Not Need To Move Off The Unencumbered Property .............................................................. 584 3. The Evidence Of The Value Of The Encumbered Assets Is Not Necessary To The Court's Analysis Of The Debtors' Plan .................... 584 C. Warrants Are An Appropriate Recovery Under The Plan ........................... 584 1. Warrants Are An Appropriate Form Of Recovery For The Class 5 Claimants ................................................................. 585 (a) The Bankruptcy Code Required Value, Warrants Have Value Here .................................................................. 585 (b) Warrants Are Frequently Used in Chapter 11 Proceedings ................. 585 2. The Debtors Preserve Substantial Tax Benefits From The Use Of Warrants Instead Of Common Stock ......................................... 586 3. The Debtors Properly Valued The Warrants ................................... 586 (a) The Black-Scholes Model Is The Proper Method To Value The Warrants .............................................................. 586 (b) Lazard Utilized A Reasonable Time Period To Determine The Value Of The Warrants ; ............................................... 586 D. The Debtors Properly Allocated Value To The Constituents ...................... 586 1. Under The Debtors' Allocation Of Value, The Senior Noteholders Receive A Greater Recovery Than Required By The Bankruptcy Code ...................................................................... 587 (a) The Declining Value Of The Collateral .................................. 587 2. Under The Alternative Methodology, The Senior Noteholders Receive A Greater Recovery Than Required By The Bankruptcy Code ................... 588 3. The General Unsecured Creditors' Recovery Is Appropriate ................... 588 E. The Compensation Programs Were Developed And Proposed In Good Faith ........................................................................ 589 1. The Reserve of New Common Stock for the Management Equity Incentive Program Is Appropriate .......................................... 589 2. The 2009 Incentive Program Is Appropriate .................................. 589 III. THE PLAN COMPLIES WITH ALL NECESSARY STATUTORY PROVISIONS .................................................................... 590 A. The Court Has Jurisdiction And The Debtors Are Eligible For Relief ............ 590 B. The debtors' Plan Complies With Section 1129(a)(1) of the Bankruptcy Code .............................................................. 590 1. Proper Classification (11 U.S.C. §§ 1122 And 1123(a)(1)).......... 590 2. Specified Unimpaired Classes (11 U.S.C. § 1123(a)(2)) ................. 591 3. Special Impaired Classes (11 U.S.C. § 1123(a)(3)) ..................... 592 4. No Discrimination (11 U.S.C. § 1123(a)(4) ............................. 592 5. Implementation Of The Plan (11 U.S.C. § 1123(a)(5)) ................... 592 6. Non-Voting Equity Securities (11 U.S.C. § 1123(a)(6)) ................. 592 7. Designation Of Directors And Officers (11 U.S.C. § 1123(a)(7))......... 593 8. Discretionary Contents Of The Plan (11 U.S.C. § 1123(b)) .............. 593 (a) The Plan's Release, Injunction And Exculpation Provisions Are Appropriate ........................................................... 593 (b) Section 1145 Waiver (11 U.S.C. § 1145) ............................ 594 C. The Debtors Are Proper Debtors (11 U.S.C. § 1129(a)(2)) .................. 594 D. The Debtors Proposed The Plan In Good Faith (11 U.S.C § 1129(a)(3)) ........................................................... 594 E. Payment For Services Or Costs And Expenses (11 U.S.C. § 1129(a)(4)........ 595 F. Directors, Officers And Insiders (11 U.S.C. § 1129(a)(5) ................. 595 G. No Rate Changes (11 U.S.C. § 1129(a)(6)) ................................. 596 H. Best Interests Of Creditors (11 U.S.C. § 1129(a)(7))...................... 596 I Acceptance By Certain Classes (11 U.S.C. § 1129(a)(8)) ................... 597 J. Treatment Of Claims Entitled To Priority Pursuant To Section 507(a) Of The Bankruptcy Code (11 U.S.C. § 1129(a)(9)) ......................... 597 K. Acceptance By At Least One Impaired Class(11 U.S.C. § 1129(a)(10))........ 597 L. The Plan Is Feasible (11 U.S.C. § 1129(a)(11)) ........................... 598
M. Payment Of Bankruptcy Fees (11 U.S.C. § 1129(a)(12)) ..................... 598 N. Retire Benefits (11 U.S.C. § 1129(a)(13)) ................................. 598 O. Non Applicability Of Certain Section (11 U.S.C. §§ 1129(a)(14),(15) and (16)) ..................................................................... 598 P. The Debtors Complied With Section 1129(b) of the Bankruptcy Code ............... 599 1. The Plan Is "Fair and Equitable." ........................................... 599 2. There Is No Unfair Discrimination Under The Plan ............................ 599 Q. Only One Plan (11 U.S.C. § 1129(c)) ....................................... 599 R. Principal Purpose Of The Plan (11 U.S.C. § 1129(d)) ....................... 600 S. The Debtors' Plan Complies With Section 1127 Of The Bankruptcy Code .......................................................................... 600 T. The Debtors' Plan Complies With section 1125 Of The Bankruptcy Code .......................................................................... 600 CONCLUSION OF LAW...
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