IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 NEBRASKA BOOK COMPANY, INC., et al., ) ) Case No (PJW) Debtors. ) ) Jointly Administered SUPPLEMENTAL DECLARATION OF TODD R. SNYDER IN SUPPORT OF THE JOINT RESPONSE OF THE DEBTORS AND ROTHSCHILD INC. TO THE LIMITED OBJECTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO THE APPLICATION OF THE DEBTORS FOR ENTRY OF AN ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF ROTHSCHILD INC. AS INVESTMENT BANKER AND FINANCIAL ADVISOR TO THE DEBTORS AND DEBTORS-IN-POSSESSION Pursuant to Rule 2014(a) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), Todd R. Snyder, under penalty of perjury, declares as follows: 1. I am a Senior Managing Director and Co-Head of the Restructuring and Reorganization Group at the financial advisory and investment banking firm, Rothschild Inc. ("Rothschild"), which has its principal office at 1251 Avenue of the Americas, 51St Floor, New York, New York I have advised companies regarding restructurings and reorganizations for approximately 22 years. I have worked with companies in a wide range of industries providing advice regarding restructurings, reorganizations, workouts, and a wide variety of other transactions, including exchange offers, mergers, divestitures, and management buyouts. The debtors in these chapter 11 cases, along with the last four digits of each debtor s federal tax identification number include: Nebraska Book Company, Inc. (9819); Campus Authentic LLC (9156); College Bookstores of America, Inc. (9518); NBC Acquisition Corp. (3347); NBC Holdings Corp. (7477); NBC Textbooks LLC (1425); Net Textstore LLC (6469); and Specialty Books, Inc. (4807). The location of the debtors service address is: 4700 South 19th Street, Lincoln, Nebraska K&E

2 2. On July 20, 2011, the above-captioned debtors and debtors in possession (collectively, the "Debtors") and Rothschild filed the Joint Response of Debtors and Rothschild Inc. to the Limited Objection of the Official Committee of Unsecured Creditors to the Application of the Debtors for Entry of an Order Authorizing the Employment and Retention of Rothschild Inc. as Investment Banker and Financial Advisor to the Debtors and Debtors in Possession (the "Joint Response") [Docket No. 162]. Attached as Exhibit B to the Joint Response was my initial declaration in support thereof (the "Initial Declaration"). 3. The Court originally scheduled the hearing on the Debtors "second day" motions, including the Application of the Debtors for Entry of an Order Authorizing the Employment and Retention of Rothschild Inc. As Investment Banker and Financial Advisor to the Debtors and Debtors-In-Possession Effective Nunc Pro Tunc to the Petition Date (the "Retention Application") [Docket No. 98], for July 21, Minutes before the hearing was scheduled to commence, proposed counsel for the official committee of unsecured creditors appointed in these chapter 11 cases (the "Committee") presented the Debtors, Rothschild, and each of their respective counsel with charts that the Committee s proposed counsel planned to use at the hearing. In order to give Rothschild and the Debtors the opportunity to review and analyze the Committee s charts, the Debtors and the Committee agreed to adjourn the hearing on the Retention Application until August 3, On July 27, 2011, the Committee s proposed financial advisor, Mesirow Financial ("Mesirow"), filed the Declaration of Monty Kehl in Opposition to Debtors Application for Entry of an Order Authorizing the Employment and Retention of Rothschild, Inc. As Investment Banker and Financial Advisor to the Debtors and Debtors-In-Possession (the 2 The Debtors attached the engagement letter, dated as of January 24, 2011 (the "Engagement Letter"), by and between the Debtors and Rothschild, as Exhibit 1 to Exhibit A of the Retention Application. K&E

3 "Kehl Declaration") [Docket No. 242]. The Kehl Declaration asserts that Rothschild s proposed fee structure is "above-market when compared to similar engagements of investment bankers in other bankruptcy cases." Kehl Declaration, 7. As set forth below and in the attached exhibits, comparable engagements do not support this conclusion. 5. Rothschild s analyses, as filed with the Initial Declaration and as subsequently revised, set forth fee structures of investment bankers retained from 2007 to present, in which prepetition debt was between $300 million and $650 million and the fee structure included a percentage-based new capital fee. Rothschild has attached its revised analyses hereto as follows: (i) (ii) (iii) Exhibit A, which summarizes restructuring fees approved by courts in similar engagements; Exhibit B, which summarizes new capital fees approved by courts in similar engagements; and Exhibit C, which summarizes instances in which investment bankers have agreed to caps and/or carveouts with regard to new capital fee arrangements in similar engagements. Rothschild is providing this supplemental declaration and Exhibits A, B, and C to (a) clarify certain differences in the data presented by Rothschild and by the Committee and (b) correct certain errors within Exhibit B to the Initial Declaration, including relating to the number of comparable engagements with fee caps and the identification of specific carveouts. Exhibit B to the Initial Declaration inadvertently included two cases that did not include new capital fees: (a) In re BHM Technologies, LLC, No (SWD) (Bank. W.D. Mich. May 19, 2008); and (b) In re Leiner Health Products, Inc., No (KJC) (Bank. D. Del. Mar. 20, 2008). Rothschild has excluded these cases from our updated analysis, as we have done with other engagements that lack percent-based new capital fees as part of the investment bankers fee structures. As noted in Exhibit B to the Initial Declaration, Rothschild excluded two other non-comparable cases from its analyses. In addition, as noted in the Initial Declaration, in some cases, typically where at the time the engagement letter is negotiated there is reasonable clarity about the need for new capital and the amount likely to be raised, a flat new capital fee is negotiated. Because such fees are not readily comparable, they have not been included in the analysis. K&E

4 6. These revised analyses confirm that the Debtors and Rothschild s conclusions remain accurate and true: Rothschild s proposed fee structure in these chapter 11 cases is fair and reasonable when compared with other investment banker engagements in comparable chapter 11 cases. 7. Specifically, Rothschild s analyses support the following regarding Rothschild s proposed fee structure and comparable engagements: (i) (ii) (iii) (iv) (v) Rothschild s Completion Fee (as such term is defined in the Engagement Letter), as a percentage of the Debtors prepetition debt, is just below the median for similar engagements. See Exhibit A. Rothschild s New Capital Fee (as such term is defined in the Engagement Letter) is even with or near the median for similar engagements. See Exhibit B. A minority of comparable engagements incorporated carveouts with respect to the new capital fee, see Exhibit C, including seven of 24 comparable cases that excluded new capital raised from the debtor s existing creditors. Several of these carveouts were limited to specific identified parties or to specific types of financing (such as debtor-in-possession financing). See id. Caps on the aggregate amount of completion fees and new capital fees are relatively rare (included in only six of 24 comparable cases). See id. Nonetheless, the Debtors negotiated a meaningful cap (the "") with Rothschild in the Engagement Letter and, as a result, Rothschild will receive less compensation upon consummation of the Debtors proposed plan of reorganization (the "Plan") [Docket No. 134] than Rothschild would earn absent the Cap. Only one of the comparable cases provided for both a carveout for existing creditors as well as a cap on the aggregate amount of fees. See id. Rothschild s proposed fee structure is well within the range of reasonableness in light of market comparables. 8. For clarification, Rothschild s proposed fee structure includes one of the so-called "carve outs" described in the Kehl Declaration. Contrary to Exhibit A to the Kehl Declaration, Rothschild will not earn a new capital fee for the $110 million new senior unsecured notes that K&E ru

5 the Debtors will issue to holders of the Debtors 8.625% senior subordinated notes under the Plan. 9. In addition, the Initial Declaration did not identify instances in comparable cases where investment bankers agreed to fee structures that carved out capital provided by existing equity holders from the types of capital raises triggering a new capital fee (each such carveout, an "Equity Carveout"). Exhibit B to the Initial Declaration included the column entitled "Carveout for Existing Creditors" to indicate carveouts Rothschild believes are relevant. Rothschild did not purport to include Equity Carveouts in the Initial Declaration because the Plan does not contemplate such a contribution and no party in these cases expects the Debtors prepetition equity holders to contribute any capital. The Kehl Declaration emphasizes that Rothschild excluded Equity Carveouts from the Initial Declaration notwithstanding the Plan and these well-known circumstances of the Debtors restructuring. Although we continue to believe they are not relevant here, Rothschild has identified Equity Carveouts (which appear in only 11 of 24 comparable cases) in this supplemental declaration. 10. In summary, I respectfully submit that a market comparison of similar chapter 11 cases supports the reasonableness of Rothschild s proposed fee structure. K&E

6 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. New York, New York Date: July 29, 2011 /s/ Todd R. Snyder Todd R. Snyder K&E

7 Exhibit A Summary of Restructuring Fees K&E

8 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Restructuring Fees Summary Strictly private and confidential - Printed 7/29/2011 9:52 PM Total Pre- Restructuring Fees Bankruptcy Petition Monthly Restr. Pre-Pet. No. Client Advisor Filing Date Debt Fees Fees Debt I Movie Gallery Moelis & Company 2/2/2010 $641,531 $150 $3, % % of 2 Hayes Lemrnerz International - Lazard Freres & Co. 5/11/2009 $623,500 $150 $6,000 -$7, % 3 Xerium Technologies Rothschild Inc. 3/30/2010 $611,700 $175 $4, % 4 Mervyn s, LLC Miller Buckfire & Co. 7/29/2008 $600,000 $150 $2, % 5 Neff Corporation Miller Buckfire & Co. 5/16/2010 $598,500 $200 $5, % 6 Greatwide Logistics Services Miller Buckfire & Co. 10/20/2008 $594,000 $175 $5, % 7 Bear Island Paper (White Birch) Lazard Freres & Co. 2/24/2010 $591,800 $100 $2, % 8 Twin River Lazard Freres & Co. 6/23/2009 $589,000 $125 $3, % 9 Apex Silver Mines Limited Jefferies & Co. 1/12/2009 $585,721 $150 $2, % Sources: Bankruptcy court documents 1 of 4

9 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Restructuring Fees Summary Strictly private and confidential - Printed 7/29/2011 9:52 PM Total Pre- Restructuring Fees Bankruptcy Petition Monthly Restr. Pre-Pet. No. Client Advisor Filing Date Debt Fees Fees Debt 10 Tronox, Inc Rothschild Inc. 1/12/2009 $562,800 $200 $6, % % of 11 U.S. Shipping Partners Greenhill & Co. 4/29/2009 $558,881 $50- $4, % $ Merisant Worldwide, Inc. Blackstone 1/9/2009 $553,640 $175 $4, % 13 Plastech Engineered Products Lazard Freres & Co. 2/1/2008 $515,000 $150 $3, % 14 American Safety Razor Company Lazard Middle Market 7/28/2010 $482,000 $150 $3, % 15 Energy Partners, Ltd. Parkman Whaling LLC 5/1/2009 $454,501 $75 $2, % 16 Foamex International, Inc. Houlihan Lokey Howard 2/18/2009 $386,250 $175 $3, % &Zukin 17 Neenah Enterprises Inc. Rothschild Inc. 2/3/2010 $382,000 $175 $2, % 18 Pope and Talbot Rothschild Inc. 11/19/2007 $360,570 $150 $3, % Sources: Bankruptcy court documents 2 of 4

10 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Restructuring Fees Summary Strictly private and confidential - Printed 7/29/2011 9:52 PM Restructuring Fees Total Pre- % of Bankruptcy Petition Monthly Restr. Pre-Pet. No. Client Advisor Filing Date Debt Fees Fees Debt 19 Sbarro, Inc. Rothschild Inc. 4/4/2011 $358,192 $150 $2, % 20 BI-LO William Blair & Company 3/23/2009 $325,624 $200 $4, % 21 NV Broadcasting, LLC Moelis & Company 7/13/2009 $322,562 $100- $2, % - 1.0% $150 (1) 22 Building Materials Holding Corporation Peter J. Solomon 6/16/2009 $317,348 $200 $2, % Company 23 Barzel Industries, Inc. Houlihan Lokey Howard 9/15/2009 $315,000 $165 $2, % &Zukin 24 U.S. Concrete Lazard Freres & Co. 4/29/2010 $312,000 $125 $3,250 -$3, % Sources: Bankruptcy court documents 3 of 4

11 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Restructuring Fees Summary Strictly private and confidential - Printed 7/29/2011 9:52 PM Total Pre- Restructuring Fees % of Bankruptcy Petition Monthly Restr. Pre-Pet. No. Client Advisor Filing Date Debt Fees Fees Debt Non-Comparable Engagements BHM Technologies Rothschild Inc. 5/19/2008 $326,600 $150 $2, % Leiner Health Products Houlihan Lokey Howard 3/10/2008 $417,760 $150 $.2.5m + 2.5% - $.2.5m + 2.5% - & Zukin 5.0% of incr. AGC (2) 5.0% of incremental AGC OTC Holdings Jefferies & Co. 8/25/2010 $709,600 $125 $4, % Constar International Greenhill & Co. 1/11/2011 $249,500 $140 $3, % Notes: (1) Restructuring fee of 0.9%. An additional 0.10% bonus payable at Debtors discretion (ultimately paid) (2) Transaction Fee is based on range of Plan value or AGC ($2.5m + 2.5% - 5.0% of incremental AGC or Plan Value) Sources: Bankruptcy court documents 4 of 4

12 Exhibit B Summary of New Capital Fees K&E

13 Strictly private and confidential - Printed 7129/2011 9:52 PM Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Summary Financing Fees No. Client I Movie Gallery Advisor Moelis & Company Bankruptcy Senior Junior Unsec. Pref. Common Filing Date DIP secured secured debt stock Equity 2/2/ % 1.5% 1.5% 3.0% 5.5% 5.5% 2 Hayes Lemmerz International Lazard Freres & Co 5/11/ % 1.5% 1.5% 1.5% 5.0% 5.0% 3 Xerium Technologies Rothschild Inc. 3/30/ % 1.0% 2.5% 3.0% 5.0% 5.0% 4 Melvyn s, LLC Miller Buckfire & Co. 7/29/2008 $500K 0.5% 2.0% 2.0% 3.0% 3.0% 5 Neff Corporation Miller Buckfire & Co. 5/16/ % 1.0% 2.0% 3.0% 3.201% 3.201% 6 Greatwide Logistics Services Miller Buckfire & Co. 10/20/2008 $500K/ (1) 1.0% 2.0% 3.0% 4.0% 4.0% 1.0% 7 Bear Island Paper (White Birch) Lazard Freres & Co. 2/24/ % 1.5% 3.0% 3.0% - 5.0% 6.0% 3.75% 8 Twin River Lazard Freres & Co. 6/23/ % 2.0% 2.0% 2.0% 4.0% 4.0% 9 Apex Silver Mines Limited Jefferies & Co. 1/12/ % 1.0%- 1.0%- 3.0%- 4.5%- 5.5%- 3.0% 3.0% 4.5% 6.0% 6.0% 10 Tronox, Inc Rothschild Inc. 1/12/ % 1.5% 2.5% 3.0%- 5.5% 5.5% 5.5% Sources: Bankruptcy court documents 1 of 4

14 Strictly private and confidential - Printed 7/29/2011 9:52 PM Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Summary Financing Fees No. Client Advisor 11 U.S. Shipping Partners Greenhill & Co. Bankruptcy Senior Junior Unsec. Pref. Common Filing Date DIP secured secured debt stock Equity 4/29/ % 1.0% 1.0% 3.0% 5.0% 5.0% 12 Merisant Worldwide, Inc. Blackstone 1/9/ % 1.0% 1.0% 1.0% 5.0% 5.0% 13 Plastech Engineered Products Lazard Freres & Co % American Safety Razor Company Lazard Middle Market 7/28/ % 1.5% 3.0% 3.0%- 3.75% 5.0% 6.0% 15 Energy Partners, Ltd. Parkman Whaling LLC 5/1/ % 2.0% 2.0% 4.0% 6.0% 6.0% 16 Foamex International, Inc. Houlihan Lokey Howard & Zukin 2/18/ % 1.0% 3.0% 3.0%- 5.0% 5.0% 5.0% 17 Neenah Enterprises Inc. Rothschild Inc. 2/3/ % 1.5% 2.5% 3.5% 5.0% 5.0% 18 Pope and Talbot Rothschild Inc. 11/19/ % 1.5% 3.0% 3.0% 4.0% 4.0% 19 Sbarro, Inc. Rothschild Inc. 4/4/ % 1.0% 1.0% 1.0% 1.0% 1.0% 20 BI-LO William Blair & Company 3/23/2009 $500K( 3) 1.0% 3.0% 3.0%- 5.0% 5.0% 5.0% Sources: Bankruptcy court documents 2 of 4

15 Strictly private and confidential - Printed 7/29/2011 9:52 PM Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Summary Financing Fees No. Client Advisor 21 NV Broadcasting, LLC Moelis & Company Bankruptcy Senior Junior Unsec. Pref. Common Filing Date DIP secured secured debt stock Equity 7/13/ % 3.5% 3.5% 3.5% 5.0% 5.0% 22 Building Materials Holding Corporation Peter J. Solomon Company 6/16/ % 1.0% 1.0%- 3.0% % 23 Barzel Industries, Inc. Houlihan Lokey Howard & Zukin 9/15/2009 $lm 2.0% 3.0% 3.0%- 6.0% 6.0% 6.0% 24 U.S. Concrete Lazard Freres & Co. 4/29/ % 1.5% 1.5% 1.5% - 5.0% 5.0% 5.0% High 3.50% 3.50% 3.50% 6.00% 6.00% 6.00% Median 1.00% 1.50% 2.00% 3.00% 5.00% 5.00% Mean /6 2.20% 3.04% 4.66% 417% Low 0.57% /" 1.00% 1.00% 1.00% 1.00% Sources: Bankruptcy court documents 3 of 4

16 Strictly private and confidential - Printed 7/29/2011 9:52 PM Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Summary Financing Fees No. Client Advisor Bankruptcy Senior Junior Unsec. Pref. Common Filing Date DIP secured secured debt stock Equity Non-Comparable Engagements BHM Technologies Rothschild Inc. 5/19/ Leiner Health Products Houlihan Lokey Howard & Zukin 3/10/ OTC Holdings Jefferies & Co. 8/25/ Constar International Greenhill & Co. 1/11/ Notes: (1) $500K if provided by existing lenders (2) 0.75% for any customer DIP financing; 1.0% from another source (3) DIP Fee is $500K per engagement letter Sources: Bankruptcy court documents 4 of 4

17 Exhibit C Summary of Fee Caps and Carveouts to New Capital Fees K&E

18 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Carveouls and Fee Caps Existing All Financing Fees Carveout Strictly private and confidential - Printed 7/29/2011 9:53 PM Bankruptcy Secured Existing Existing Fee No. Client Advisor Filing Date Creditors Creditors Equity Other Comments Cap I Movie Gallery Moelis & Company 2/2/2010 Carveout for lenders under the Company s outstanding credit None agreements" added in amended Engagement Letter 2 Hayes Lemmerz Lazard Freres & Co. 5/11/2009 $6.25m for all International fees 3 Xerium Technologies Rothschild Inc. 3/30/ Carveout relates only to new equity capital raised and not to new debt capital None 4 Mervyns, LLC Miller Buckfire & Co. 7/29/2008 Carveout for existing shareholders and vendors for junior lien program (other than DIP financing) None 5 Neff Corporation Miller Buckfire & Co. 5/16/2010 None 6 Greatwide Logistics Miller Buckfire & Co. 10/20/2008 Services V/ Secured lender carveout applies only as follows: If DIP is provided by existing secured lenders, fee is $500K, otherwise 1% of commitment None 7 Bear Island Paper Lazard Freres & Co. 2/24/2010 (White Birch) V/ V/ Other carveout relates to portion of DIP used to repay or refinance amounts outstanding under a prepetition lending facility None 8 Twin River Lazard Freres & Co. 6/23/2009 Carveouts are not applicable if financing is (a) provided in Chapter 11 and (b) is on terms more favorable to the Debtors V7 / 1 than the initial offer for the financing None Sources: Bankruptcy court documents 1 of 4

19 Strictly private and confidential - Printed 7/29/2011 9:53 PM Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Carveouts and Fee Caps Financing Fees Carveout Existing All Bankruptcy Secured Existing Existing Fee No. Client Advisor Filing Date Creditors Creditors Equity Other Comments Cap 9 Apex Silver Mines Jefferies & Co. 1/1 2/2009 None Limited 10 Tronox, Inc Rothschild Inc. 1/1 2/2009 None 11 U.S. Shipping Partners Greenhill & Co. 4/29/2009 $4.5m for sale / merger or Capital Raise / Restructuring 12 Merisant Worldwide, Blackstone 1/9/2009 None Inc. 13 Plastech Engineered Lazard Freres & Co. 2/1/2008 Products $5.5m for all fees (750K minimum) 14 American Safety Razor Lazard Middle 7/28/2010 Company Market None 15 Energy Partners, Ltd. Parkman Whaling 5/1/2009 LLC None 16 Foamex International, Houlihan Lokey 2/18/2009 Inc. Howard & Zukin $5.25m for all fees Sources: Bankruptcy court documents 2 of 4

20 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - Financing Fees Carveouts and Fee Caps Existing All $650 million Financing Fees Carveout Strictly private and confidential - Printed 7/29/2011 9:53 PM Bankruptcy Secured Existing Existing Fee No. Client Advisor Filing Date Creditors Creditors Equity Other Comments Cap 17 Neenah Enterprises Inc. Rothschild Inc. 2/3/2010 $3.85m for all fees 18 Pope and Talbot Rothschild Inc. 11/19/2007 Carveout for (i) any financing raised without advisors None assistance and (ii) any debt or equity provided by general unsecured creditors pursuant to an offering made available to all general unsecured creditors under a Plan 19 Sbarro, Inc. Rothschild Inc. 4/4/2011 None V7 20 BI-LO William Blair & 3123/2009 $6.Om for all Company fees 21 NV Broadcasting, LLC Moelis & Company 7113/2009 Carveout only for HBK, which is both a debt and equity holder None 1 22 Building Materials Peter J. Solomon 6/16/2009 Holding Corporation Company 7 No financing fees for revolving credit exit facility that is a rollover of the DIP financing None 23 Barzel Industries, Inc. Houlihan Lokey 9/15/2009 Howard & Zukin Other relates to carveout for founder, director or officer of the company None 7 / 24 U.S. Concrete Lazard Freres & Co. 4/29/2010 il Carveout for financing transactions involving any obligations None under the Company s senior credit facility" or any transactions involving Superior Materials Holdings, LLC. (JV between the Company and Edw. C. Levy Co., a construction materials company) - - Sources: Bankruptcy court documents 3 of 4

21 Debtor Fee Study: Current; Pre-Petition Debt of $300 million - $650 million Financing Fees Carveouls and Fee Caps Strictly private and confidential - Printed 7/29/2011 9:53 PM Financing Fees Carveout Existing All Bankruptcy Secured Existing Existing Fee No. Client Advisor Filing Date Creditors Creditors Equity Other Comments Cap Non-Comparable Engagements BHM Technologies Rothschild Inc. 5/19/2008 None Leiner Health Products Houlihan Lokey 3/10/2008 Howard & Zukin OTC Holdings Jefferies & Co. 8/25/2010 None Constar International Greenhill & Co. 1/11/2011 None Sources: Bankruptcy court documents 4 of 4