On March 21, 2003, Avianca Airlines filed a petition for relief under Chapter 11 of the U.S. Bankruptcy Code in bankruptcy court in New York City. Avianca emerged from Chapter 11 on December 10, 2004, as a reorganized company, adequately capitalized and with a cost structure that the Company projected could be sustained well into the future. Thus began and ended the story of one of the most remarkable bankruptcy cases in United States history.

Avianca Airlines, whose official name is Aerovias Nacionales de Colombia S.A. Avianca and is known as the “Airline of Colombia,” is the oldest airline in the Western Hemisphere, having begun operations in 1920. Small by U.S. standards, Avianca, together with its subsidiary domestic airline, Sociedad Aeronautica de Medellin, Consolidada S.A. (SAM), in 2003 had a major presence in Colombia with a fleet of over 40 aircraft, and employed more than 6,000 individuals, either as employees or through third party contractors. Avianca was then serving 30 destinations, including 14 in Colombia and 16 outside Colombia, including three in the United States. Close to a quarter of its international service was between Colombia and the United States.

Avianca Airlines, the “Airline of Colombia,” is the oldest airline in the Western Hemisphere.

Avianca, like the rest of the worldwide airline industry, took on its fair share of the general difficulties suffered by the industry toward the end of the 20th century, and the terrorist attacks in the United States had a devastating effect on Avianca’s business and prospects, just as it did on that of airlines in this country. Like many of this country’s airlines, Avianca embarked on an ambitious program of cost-cutting and revenue-enhancement measures. The Company also undertook to renegotiate its aircraft leases, which it felt were in many cases substantially above market.

In the end, despite some success in its various programs to enhance and conserve its cash reserves, Avianca recognized (by early 2003) that its survival could not be expected without taking advantage of debtor relief laws, and could not be assured even with the help of such laws. Although the Company was aware that various airlines in the United States had employed the U.S. bankruptcy laws as a “management tool,” Colombian airlines had not before successfully reorganized under Colombian insolvency laws, and Avianca was concerned that a single “management tool” would be insufficient to resolve its financial predicament in a satisfactory manner. What the Company needed was an entire array of power tools.

Enter Smith, Gambrell & Russell

SGR had been advising Avianca for 15 years in connection with its aircraft and engine leasing program. But Avianca’s foremost concern in early 2003 was not the terms of its leases but rather whether Avianca would, for very much longer, have any need for airplanes or engines at all–or legal advice for that matter. For that reason Avianca at that time turned to SGR to help it explore
the possibility of the Company’s restructuring under a relatively new Colombian statute, known as “Law 550,” and seeking the aid of the U.S. courts where necessary to carry out in the United States the intentions of the Colombian process by means of an “ancillary proceeding” under the U.S. Bankruptcy Code. Originating a “main” insolvency proceeding in the home jurisdiction of the debtor and an “ancillary” proceeding in a foreign country was, after all, the expected and most common approach to a case involving a company with assets and liabilities in multiple jurisdictions.

The word “common,” however, was not a term that could be accurately applied to much of anything concerning Avianca. Though a Colombian-based airline, Avianca’s aircraft and engine lessors were either located or had offices in the United States. Its primary secured indebtedness was evidenced by notes held by insurance companies or retirement funds in the States, issued under a trust indenture with The Bank of New York, as trustee, and secured by credit card receivables settled in U.S. dollars. And while the Company owed substantial debts to creditors in Colombia, in early 2003 it was its U.S. creditors who were demanding performance that Avianca could not satisfy. Specifically, Avianca was in default under virtually all of its aircraft leases, and the holders of its secured notes were unwilling to release to the Company for its use in operations the dollars being collected through its U.S. credit card sales.

With the assistance of Colombian counsel, SGR learned the benefits and limitations of a proceeding under Law 550 and, together with Avianca’s internal restructuring team, considered the impact on the Company of a Colombian Law 550 proceeding in combination with an ancillary proceeding in the United States. With the understanding that the narrow function of an ancillary proceeding would be, at best, to assist the Company in implementing a restructuring solely under Colombian law and that, at worst, a U.S. court could find that substantive and procedural differences between Colombian and U.S. law mandated that an ancillary proceeding was unavailable (thereby creating a “free for all” in the United States), SGR decided that the customary approach to a cross-border insolvency would not be the most effective approach in this case.

Next, SGR looked into the possibility of initiating “parallel” proceedings in Colombia and the United States, i.e., a Law 550 proceeding in Colombia and a Chapter 11 case in the U.S. Conceivably, Avianca could take advantage of the most beneficial aspects of both Colombian and U.S. law by seeking to reorganize under both laws, with the expectation that the two proceedings could be coordinated in a manner acceptable to both the Superintendency of Ports and Transportation, the governmental authority responsible for supervising a Law 550 proceeding concerning an airline in Colombia, and the United States Bankruptcy Court in which the Chapter 11 case in the United States would be commenced. While cumbersome to be sure, there were at least a few instances in which two “main” insolvency cases had proceeded with some success simultaneously in two different jurisdictions.

Avianca emerged from Chapter 11 on December 10, 2004, as a reorganized company.

A New Idea

In the midst of preparing for what was becoming ever more likely to be dual insolvency filings, SGR received from the Avianca CEO a fascinating inquiry as to why Avianca could not reorganize under Chapter 11 of the Bankruptcy Code without commencing any proceeding whatsoever in its country of domicile. Struggling against the inclination to suggest (irrelevantly, so it turned out) that no one had ever tried such a thing, we instead requested permission to give some thought to how such a thing might be achieved. Struggling against a common client inclination to desire an instantaneous answer to the most novel of questions, the CEO granted permission.

Whether a non-U.S. based multinational enterprise can reorganize solely under Chapter 11 of the Bankruptcy Code, without the benefit or burden of any legal proceeding in its “home” country, was THE BIG QUESTION that was asked over and over, beginning the day we were first asked the question in early 2003 and continuing throughout Avianca’s Chapter 11 case, by Avianca’s management, stockholders, creditors, vendors, lessors, employees, the press and the bankruptcy bar.

After much research and deliberation, we believed we had the answer to THE BIG QUESTION–we thought it could be done. But there was only one way to find out for sure.

The Preparation

We began by compiling a Guide to the Filing by Avianca of a Petition under Chapter 11 of the United States Bankruptcy Code. The Guide presented:

The Company was indeed able to convince its Colombian creditors to stand back and await the outcome of its reorganization efforts in the United States.

[A] comprehensive roadmap to the filing of petitions under Chapter 11 for both Avianca and [its wholly owned U.S. subsidiary] Avianca, Inc., including discussions of their eligibility to file such petitions, the resistance to their filings that they may confront, the papers that are required to be prepared both before and during the pendency of the cases, the commercial considerations that should be addressed in preparation for the filings, the relief that is available under Chapter 11, the objections to the relief that may be anticipated, and, in general, the potential risks and rewards of such an undertaking.

There was much information that needed to be gathered and many decisions that needed to be made. Of utmost strategic importance was the determination of which bankruptcy court in the United States should have the honor of hosting Avianca’s historic Chapter 11 case. We quickly determined that Miami, where the U.S. subsidiary was located, and New York, where the U.S. subsidiary was organized and where Avianca’s principal place of business in the United States was located, were the two most likely candidates.

After consideration of many factors, the decision was made that the case would have the highest likelihood of success if brought in the Southern District of New York (in Manhattan), the jurisdiction in which more cases involving foreign debtors are filed than any other and in which the judges had the most experience in dealing with the complexities raised by cross-border issues in multinational cases. In addition to other considerations tending to support the choice of New York City, the realization that Avianca’s principal creditors in the United States had offices or counsel in New York, had insisted on the choice of New York law as the law governing their contracts with Avianca, and would therefore have difficulty arguing that New York was an inconvenient forum, was compelling. This decision proved to be pivotal in the case.

Finally, we had to reach a consensus on the approach that Avianca would take in making its case before the bankruptcy court that its Chapter 11 case in the United States should proceed without the assistance of a similar or ancillary proceeding in Colombia. Of particular concern was the practical limitation on the ability of a U.S. bankruptcy court to enforce the automatic stay imposed by the Bankruptcy Code on creditors outside the jurisdiction of the United States, particularly those located in Colombia. The filing by a company of a voluntary Chapter 11 petition operates as a stay, without further action by the bankruptcy court, of all actions, including the commencement of lawsuits, by creditors to collect money from, to obtain property from, or to enforce liens against the property of, the debtor on account of a prepetition debt.

We were sorely aware of the difficulties and claims of unfairness that would result from Colombian creditors taking actions against Avianca or its property in Colombia to collect prepetition debts, while U.S. creditors were prohibited from doing the same thing anywhere by virtue of the automatic stay. We were likewise aware that U.S. creditors would have ample remedies, including obtaining the dismissal of the Chapter 11 case, to protect themselves in the event that they could show that the Chapter 11 case was prejudicing U.S. creditors by reason of the liberty of Colombian creditors to ignore the automatic stay.

The Court granted the relief necessary for Avianca to continue its operations in the ordinary course of business.

As the Guide we prepared set forth straightforwardly:

[T]he bankruptcy court is not going to permit to exist a situation where Avianca’s U.S. creditors are stayed from collecting prepetition debts while Avianca pays its Colombian creditors at will. The concept that Avianca may be able to reorganize under Chapter 11 is based in large part on the expectation that it will be able to manage its relationships with its Colombian creditors in a manner consistent with Avianca’s duties under the [Bankruptcy] Code. Only by making arrangements with its major Colombian creditors in advance of a Chapter 11 filing can Avianca hope to succeed under Chapter 11 alone.

It was Avianca’s response to this challenge that was the key to the “Avianca Miracle.” The Company was indeed able to convince its Colombian creditors, with only exceptions that were acceptable to its general creditors (including U.S. creditors), to stand back and await the outcome of its reorganization efforts in the United States before taking action against Avianca or
its property.

The Case Begins

Avianca and its U.S. subsidiary filed petitions for relief under Chapter 11 of the Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York in the early hours of March 21, 2003. The case was assigned randomly, in accordance with court procedures, to Bankruptcy Judge Allan L. Gropper. Before noon on the 21st, Judge Gropper held a hearing at Avianca’s request to consider what has become customary first-day relief in airline bankruptcy cases, including requests for authority to honor outstanding airline tickets, to pay pre-petition wage and employee benefit claims and to pay certain foreign vendors and governmental units.

In keeping with the philosophy Avianca announced at the hearing and in its initial filings with the Court, except in special instances, Avianca would not include Colombian creditors in the Company’s requests for relief respecting “foreign vendors,” but rather intended as far as possible to treat Colombian and U.S. creditors in the same fashion, notwithstanding any limitation on the bankruptcy court’s power outside the United States. The Court granted the relief necessary for Avianca to continue its operations in the ordinary course of business, on an interim basis at the first-day hearing, and on a final basis at hearings over the following several weeks.

Only after the first-day hearing, but before night fell on the first day, did we learn that Bankruptcy Judge Allan L. Gropper was an editor of International Insolvency, a two-volume treatise on the law of international insolvency. While the possibility of drawing as a bankruptcy judge an expert on cross-border insolvency was not necessarily foremost in our minds at the time of the decision to commence the case in New York, the wisdom of the decision from the inception of the case, and continuing throughout the case, was validated. Judge Gropper demonstrated at defining moments of the case a sensitivity to the international issues involved and a particular propensity for making only statements from the bench that were translatable into Spanish by the Colombian press in a manner that had a calming influence on the Colombian public, which was previously only vaguely, if at all, aware of the meaning of a U.S. Chapter 11 case.

In the early stages of the case Avianca was able to arrange for the extension of a debtor-in-possession financing facility.

The Reorganization Process

The Company got its Chapter 11 case off to a running start. First, the Company was successful in obtaining from the Court a temporary restraining order prohibiting The Bank of New York, as trustee, and the holders of the notes issued under its trust indenture with Avianca, from applying toward payment of the notes any of the cash previously or which was continuing to be collected on the Company’s U.S. credit card receivables. The Company was then able to negotiate a consensual interim arrangement by which Avianca could use 90 percent of all cash collected on the credit card receivables pending a final settlement or trial. Second, Avianca was particularly adept at complying strictly with a provision of the Bankruptcy Code requiring that a debtor pay when due rent for all leased equipment, including aircraft, first coming due 60 days after the petition date. In other words, Avianca carefully made no lease payments during the first 60 days of the case. As a result, Avianca confronted a high-class problem with which it was unfamiliar–how to invest excess cash. The Company quickly learned that there were several vehicles available for safe, short-term liquid investments.

In the early stages of the case Avianca also was able to arrange for the extension of a debtor-in-possession financing facility by the Federación Nacional de Cafeteros de Colombia, an organization of Colombian coffee growers known to the public by their spokesman Juan Valdez, and Valorem S.A., a Colombian holding company (which together beneficially owned substantially all of the outstanding stock of Avianca), to provide financing that the Company projected would be required before the end of calendar year 2003 (after the resumption of aircraft lease payments). In addition, the Company was able, with the assistance of SGR and the Company’s financial advisor, The Seabury Group, known for its work in the airline industry, to renegotiate the leases of virtually all aircraft that Avianca determined would be necessary to its continuing operations, originally on an interim basis during the pendency of the Chapter 11 case, and ultimately through their entire lease terms.

With a reasonable idea of its equipment costs for the next few years, Avianca was then able to begin work with Seabury to develop a business plan on which its Chapter 11 plan of reorganization would be based. Unfortunately, but not surprisingly, management’s attention was soon to be diverted.

The Expected Attack

The Guide included an important segment respecting how Avianca could address an objecting creditor’s effort to have the case dismissed. This preparation was indeed put into service, as in the middle of April 2003 two dissatisfied aircraft lessors brought motions to dismiss the case, and a handful of general unsecured creditors was initially convinced to join the motions as movants. The motions were based generally on the argument that a U.S. bankruptcy court should not hear a case involving a non-U.S. company that has not filed a case in its “home court,” whose business is headquartered outside the United States, and which has more non-U.S. creditors than domestic U.S. creditors.

Fortunately, Congress had made it clear in the pertinent provisions of the Bankruptcy Code that a foreign company was eligible in the first instance to commence a case under Chapter 11 as long as it had property or an office in the United States. Avianca had both: property, including aircraft parts and other equipment in Miami, and an office in New York City. But the objecting creditors could still prevail on their motions to dismiss by convincing the Court that “the interests of creditors and the debtor would be better served by such dismissal,” or that “there is pending a foreign [insolvency] proceeding” and certain factors specified in the Bankruptcy Code “warrant such dismissal,” or that Avianca would be unable “to effectuate a plan [of] reorganization.”

Avianca had scrupulously adhered to its commitment to treat Colombian creditors in the same manner as U.S. creditors.

By the time of the hearing on the motions to dismiss, in late May 2003, several circumstances were working together in favor of the continuation of Avianca’s case. Of particular importance was the fact that the Official Committee of Unsecured Creditors appointed in the case, composed of both Colombian and U.S. creditors, had engaged counsel and financial advisors and had become quite active in the case. The Committee (and perhaps its professionals as well), not wishing to see their role come to an end with the dismissal of the case, appeared in vigorous support of the continuation of the Chapter 11 case. Moreover, by that time it was apparent that Avianca’s largest creditors were participating in the case or were otherwise subject to jurisdiction in the United States, but some were unlikely to submit to jurisdiction in a proceeding in Colombia. And of uppermost significance to the Court, Avianca had scrupulously adhered to its commitment to treat Colombian creditors, except as expressly permitted by Court order, in the same manner as U.S. creditors.

It was also fortuitous that, following the hearing on the motions but before the Court rendered its decision, Avianca reached settlements with each of the original moving parties, incorporating the restructuring of their aircraft leases with the Company and providing for the withdrawal of their motions to dismiss. Nevertheless, because not all creditors who had joined the motions as movants affirmatively withdrew their joinders, the motions still required a decision by the Court. By the time the decision was issued on December 23, 2003, the Bankruptcy Court was convinced that Avianca should prevail on all issues: dismissal would not be in either the debtor’s or the creditors’ best interests, there was pending no foreign proceeding and the factors enumerated in the Bankruptcy Code would not in any event warrant dismissal, and, lastly, it appeared that Avianca was on the road to achieving a plan of reorganization. Accordingly, Avianca received from Judge Gropper an early Christmas present–the motions were denied. THE BIG QUESTION was not yet definitively answered “Yes,” but it was most definitely not answered “No.”

The Exceptions

While Avianca did in fact strictly observe its announced intention of treating Colombian creditors in the same fashion as U.S. creditors, its intention was always qualified by the recognition that there might be circumstances where it would be compelled to ask the Bankruptcy Court for permission to make exceptions. During the course of the case Avianca asked for, and received, permission from the Court to make special arrangements to pay over time, and in some cases to secure, its obligations to the Colombian National Tax and Customs Agency, known as the “DIAN,” the Colombian agency which regulates air travel and administers the major airports in Colombia, known as “Aerocivil,” and the private pension administrator managing a pension fund established for certain members and former members of the union representing Avianca’s pilots, known as “CAXDAC.”

Avianca determined that its ability to achieve an effective reorganization would be significantly enhanced by attracting a considerable cash investment.

In each case Avianca was able, before bringing its request to court, to make its case to the Creditors Committee. The Company argued that, while making payments to such creditors before confirmation of a plan or reorganization may be unusual, as a practical matter the particular creditors, either governmental or quasi-governmental units, could not be persuaded, like Avianca’s generally agreeable private Colombian creditors, to await the confirmation of a plan, and Avianca’s inability to restrain such creditors made it imperative that they be accommodated, both before confirmation and in accordance with the terms of Avianca’s eventual plan of reorganization. The Committee ultimately in each case recognized that denying Avianca permission to make such arrangements with these particular creditors would not in the end prevent the creditors from obtaining treatment more favorable than the treatment of general creditors, whether that treatment was or was not strictly in accordance with the priorities established by the Bankruptcy Code, but rather would jeopardize the Company’s ability to comply with both U.S. and Colombian law and its opportunity to proceed with its reorganization efforts. As a consequence, Avianca was able to present each such request to the Bankruptcy Court with either the support, or without the opposition, of the Creditors Committee, and the Court was able to approve each request without argument.

The Investment

By October 2003, Avianca had determined that its ability to achieve an effective reorganization would be significantly enhanced by attracting a considerable cash investment. Once again, its two principal indirect stockholders, the Federación and Valorem, which had previously furnished a needed debtor-in-possession financing facility, came forward and offered to assume primary responsibility for the solicitation of an investment in a reorganized Avianca. They engaged financial advisors to solicit and evaluate investment alternatives. Ultimately the indirect stockholders, Avianca and their financial advisors participated in efforts that included a canvas of the airline industry and investment markets worldwide for potential strategic and financial investors. In addition, both Avianca’s Chapter 11 case and Avianca’s interest in attracting an infusion of capital received a great deal of media attention, especially in Colombia.

In March 2004, the Federación and Synergy Group Corp., a company controlled by Brazilian businessman German Efromovich, publicly announced their interest in together making a substantial investment in a reorganized Avianca pursuant to a plan of reorganization. Although the Creditors Committee did not initially embrace the proposed investment, Avianca determined that an investment along the lines proposed, or a higher and better offer that might be obtained from those parties or others, could form the basis for a viable plan of reorganization. Accordingly, Avianca established a procedure and timetable for the submission of definitive offers of investment in a reorganized Avianca Airlines.

In accordance with the procedure established by Avianca, the Company received two definitive offers, an offer from the Federación and Oceanair Linhas Aéreas Ltda., a Brazilian subsidiary of Synergy, and an offer from Copa Airlines, acting in concert with its parent corporation, Continental Airlines. Following broad negotiations among Avianca, each of the interested parties who had submitted offers, and the Creditors Committee, Avianca entered into an investment agreement with the Federación and Oceanair, subject to confirmation of a plan of reorganization encompassing the terms of the investment agreement. As a result of further wide-ranging negotiations among Avianca, the Federación and Oceanair, and the Creditors Committee, the parties were ultimately successful in reaching agreement on a plan of reorganization, based upon an investment agreement amended to provide for an investment in the reorganized Company and a treatment of creditors in each case more generous than originally proposed.

THE BIG QUESTION: Could Avianca reorganize solely under Chapter 11?

The Plan

As a result of an investment in Avianca of approximately $63 million to be made over not more than two years by the Federación and Oceanair (in exchange for substantially all of the capital stock of the Company), Avianca projected that it would be adequately capitalized to continue its airline operations profitably, to perform its business plan and to propose and implement a plan of reorganization providing for the distribution to its general unsecured creditors of cash and notes having an estimated value of over 35 cents on the dollar. In addition, the Company determined that it would be able to provide for a sharing of profits over the first seven years following emergence from bankruptcy that could yield up to another seven cents on the dollar. Such a return far exceeded the return that had become customary in Chapter 11 reorganizations of domestic U.S. airlines.

But notwithstanding the promising financial picture that Avianca was able to demonstrate, the Company still had to meet important challenges in actually carrying out a Chapter 11 plan, considering that nothing had been, or could be, done in a U.S. court to require compliance with the plan by unwilling Colombian creditors without significant contacts to the United States. Whether or not Avianca could pass this test would in the end determine the answer to THE BIG QUESTION: Could Avianca reorganize solely under Chapter 11?

In order for a bankruptcy court to confirm a plan of reorganization, either every impaired class of creditors (i.e., creditors whose rights are being affected, usually by receiving less than 100 cents on the dollar) must accept the plan by the affirmative vote of more than half in number of creditors in the class holding at least two-thirds in amount of claims in the class (counting only those creditors voting), or the proponent of the plan must meet several technical requirements which permit the court to confirm a plan without universal acceptance (in a procedure commonly known as “cramdown”). Either way, a reorganization under a confirmed Chapter 11 plan works, in general, because dissenters are bound by the plan. In other words, regardless of how a particular creditor may have voted, he is bound to accept, in full and complete satisfaction of his claim, whatever payments are promised under the plan. That is the law. The law of the United States, that is.

We can now say with authority that a non-U.S. based multinational company can indeed reorganize solely under Chapter 11 of the U.S. Bankruptcy Code.

Conceding that Avianca could not rely on its ability to enforce U.S. law in the Republic of Colombia, we fashioned two tools which, in combination, permitted Avianca to bind almost all Colombian creditors without having to rely on U.S. law. First, in the solicitation package sent to Colombian creditors to solicit their votes on Avianca’s plan of reorganization, we included on the ballot not only a place for each creditor to vote for or against the plan but also a place for the creditor to agree, as a matter of contract, to be bound by the provisions of the plan. Colombian counsel had assured us that such a contract would be enforceable in Colombia just as in the United States. Second, Avianca included in its plan a provision making it a condition to confirmation that creditors holding not less than 80 percent in amount of claims in the class of Colombian general unsecured creditors must have accepted the agreement set out in the ballot to be bound by the provisions of the plan. Essentially, the plan worked, with respect to Colombian creditors, like an exchange offer. Colombian creditors could take it or leave it, but all creditors, including Colombian creditors, understood that unless Avianca attained an adequate acceptance rate among the class of Colombian general unsecured creditors, the plan would not be confirmed. Failure to achieve confirmation of the plan would of course have unpredictable consequences, but, Avianca calculated, a better outcome for general unsecured Colombian creditors than that promised by the plan would not be considered likely.

THE BIG QUESTION Answered

When the ballots were counted, and the amount of claims held by Colombian general unsecured creditors accepting the agreement to be bound by the plan was tabulated, Avianca had achieved acceptance of its plan of reorganization by all classes of creditors entitled to vote and, in the case of the class of general unsecured Colombian creditors, acceptance of the agreement to be bound by the plan by the holders of approximately 90 percent in amount of claims. The plan was in due course confirmed by Order of the U.S. Bankruptcy Court and became effective promptly upon the Order’s becoming final. All creditors subject to the jurisdiction of the United States courts are bound by bankruptcy law to comply with the provisions of the plan, and Colombian creditors, save those holding less than 10 percent in amount of Colombian general unsecured debt, are similarly bound to comply with the plan by contract law.

After 20 months of experience in the first case of its kind in this country, we can now say with authority that a non-U.S. based multinational company can indeed reorganize solely under Chapter 11 of the U.S. Bankruptcy Code. But the reader should be cautioned: Do not try this at home. Not every foreign company could “manage” the creditors in its home country without the force of law; not every company will have available debtor-in-possession financing from its stockholders or otherwise; not every foreign enterprise will find the investment required to become a viable ongoing concern. Still, THE BIG QUESTION has been answered, and we now know that, in a proper case, the U.S. Bankruptcy Code can be used as the sole legal means to restructure a foreign company.