Why you should attend
The unprecedented scope and continuation of the credit crisis, recession, and weak recovery requires business people and professionals to react quickly and deal with distressed companies and defaults. This includes problems in the financial services, automotive, airlines, manufacturing, retail, sports and entertainment and real estate industries. The program will cover current issues relating to structuring, drafting and enforcing the rights of creditors, and parties to intercreditor agreements and executory contracts, principally in out-of-court restructurings, exchange offers and pre-managed Chapter 11 bankruptcy filings. It will cover issues in structured finance, and sales of distressed assets in diverse industries. The program will provide tactics to be utilized to better protect creditors, including banks, bondholders, hedge funds, and many parties in interest, and to maximize values and recoveries.
What you will learn
- Current marketplace developments
- Potential impact of Stern v. Marshall and Bellingham on restructurings
- Understanding relevant documentation in exchange offers, workouts and restructurings
- Corporate governance and D&O issues in or near the zone of insolvency
- Enforcement of rights under financial products, including swaps, derivatives, and repurchase agreements- Lehman, Dante, Metavante; Swedbank; SemCrude
- Structured and complex finance - current issues, including ramifications of General Growth, Extended Stay, and Lehman
- Intercreditor agreements and subordination - Stuy Town, Euro Directories, Westpoint Stevens, Ion Media; Boston Generating
- Negotiating restructuring agreements and exchange offers; important due diligence and relevant Bankruptcy Code and case analysis; Lockups
- Sales of distressed assets, bid procedures, “free and clear,” credit bidding, “loan to own,” confidentiality; GM; Clear Channel and progeny; River Road; Innkeepers
- Negotiating, drafting, and litigating over pre-managed but not prepackaged Chapter 11 plans and disclosure statements
Who should attend
This program is designed for inside and outside counsel, turnaround and Chapter 11 professionals and business people with at least some experience with defaults, structured finance, distressed debt, restructurings and workouts, mainstream Chapter 11 cases and affected transactions and litigation. It will include current cases and practice, drafting for success and strategies.
PLI Group Discounts
Groups of 4-14 from the same organization, all registering at the same time, for a PLI program scheduled for presentation at the same site, are entitled to receive a group discount. For further discount information, please contact membership@pli.edu or call (800) 260-4PLI.
PLI Can Arrange Group Viewing to Your Firm
Contact the Groupcasts Department via email at groupcasts@pli.edu for more details.
Cancellations
All cancellations received 3 business days prior to the program will be refunded 100%. If you do not cancel within the allotted time period, payment is due in full. You may substitute another individual to attend the program at any time.
All times are E.S.T.
Morning Session: 9:00 a.m. - 12:30 p.m. (E.S.T.)
9:00 Introduction
9:15 Documentation and Market Update
- Introduction, program survey and state of the restructuring markets
- The potential impact of Stern v. Marshall and Bellingham on restructurings
- Legislative changes including: Bankruptcy Rule 2019 amendment
- Drafting transaction documents to minimize risk and maximize recovery
- Range of covenants and defaults
- The distressed debt players
- Turnaround and distressed debt opportunities
- Issues for intercreditor and subordination agreements, SPVs, etc.
- Potential closeouts of swaps, forward contracts, and repurchase agreements
Alice Belisle Eaton, James Lukenda, Joseph Samet, J. Scott Victor
10:15 Preliminary Restructuring Documentation and the Role of Financial Advisors
Preliminary Restructuring Documentation
- Forbearance agreements
- Confidentiality and common interest agreements
- Information requests
Alice Belisle Eaton
The Role of the Investment Banker, Financial Advisor and Chief Restructuring Officer
- For Borrowers and Lenders
- Due diligence
- Valuation Issues
James Lukenda, J. Scott Victor
11:15 Networking Break
11:30 Role of Financial Advisors and Corporate Governance
The Role of the Investment Banker, et al (cont’d)
- Business plans, valuations, sales and exit strategies
- Negotiations and problem-solving
James M. Lukenda, J. Scott Victor
Corporate Governance and Officer and Director Risks and Claims in the Zone of Insolvency
- Advising the Board generally and on sales issues
- Consideration of diverse state and foreign laws, and current decisions
- Scope of duties; prosecuting and defending claims
- Status of deepening insolvency theory of liability and/or damages
- Defenses; exculpation clauses; indemnification
Kathryn A. Coleman, Joseph Samet
12:30 Lunch
Afternoon Session: 1:45 p.m. - 5:00 p.m. (E.S.T.)
1:45 The Restructuring Agreement and Sales of Distressed Assets
- Negotiating a restructuring agreement;
- Lockup agreements - negotiation and enforceability
- Exchange offers
- Disclosures
- Sales of distressed assets-process, auctions, breakup fees, “free and clear,” “loan to own,” and credit bid issues – River Road; Clear Channel and progeny; Innkeepers
Alice Belisle Eaton, Joseph Samet
2:45 Preparing for Bankruptcy Risks and Industry Issues
Dealing with the Lender's Potential Risks
- Preferences – fraudulent transfers and section 546(e) defenses
- Fraudulent transfers – Tousa, “Big Boy” provisions, LBOs, “Bad Boy” guaranty
- Equitable subordination and recharacterization of claims
- Make-Whole Premiums
- Valuation issues
- Defenses by lenders and the pushback
David M. Hillman
Industry Issues in Structured Finance, Lending and Derivatives
- Intercreditor Issues
- Types of intercreditor agreements: Multiple tranche, senior/junior, mezzanine, shared collateral; Unitranche
- Law and cases governing enforceability of intercreditor agreements; Westpoint Stevens, Ion Media, Boston Generating
- Collective Action
- Are members of lending syndicates bound by the actions of the agent?
- Can agents “drag along” unwilling syndicate members to credit bid on collateral?
- The ability of individual syndicate members to exercise rights outside the group
Alice Belisle Eaton, Joseph Samet
3:45 Networking Break
4:00 Industry Issues; Pre-negotiated Chapter 11 Plans
- Make-Whole and Prepayment Premiums in Bankruptcy - American Airlines, School Specialty
- Are they unenforceable as disguised claims for “unmatured interest” disallowed in bankruptcy?
- Are they recoverable as part of a secured claim?
- Does acceleration upon bankruptcy mean they’re not prepayments?
- Are lenders with prepayment rights entitled to “expectation damages” if their loans are paid before maturity under a chapter 11 bankruptcy plan?
- Cross-affiliate Setoff and Netting
- Proper documentation and contractual language: Making sure the right parties sign the right documents
- Application of the automatic stay and exceptions for financial contracts - SemCrude, Metavante (Lehman), Swedbank, and SIPA v. UBS (Lehman)
Joseph Samet
Not So Perfect Plans of Reorganization – Select Issues
- Negotiations and documentation of deals
- Strategy for parties in interest; key objections
- Officer/Director issues
- Claims trading
- Disclosure laws; securities laws and §1145 of the Bankruptcy Code
- Binding the dissenters; releases and channeling injunctions; contribution bars
- Exit financing
Ronit Berkovich
5:00 Adjourn
PLI makes every effort to accredit its Live Webcasts. Please check the CLE Calculator above for CLE information specific to your state.
PLI's Live Webcasts are approved for MCLE credit (
unless otherwise noted in the product description) in the following states/territories: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho*, Illinois, Indiana
1, Iowa*, Kansas*, Kentucky*, Louisiana, Maine*, Minnesota, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, New Hampshire*, New Jersey, New Mexico, Nevada, New York
2, Ohio
3, Oklahoma, Oregon*, Pennsylvania
4, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia
5, Virgin Islands, Washington, West Virginia, Wisconsin, and Wyoming*.
*PLI will apply for credit upon request.
Arizona: The State Bar of Arizona does not approve or accredit CLE activities for the Mandatory Continuing Legal Education requirement.
Arkansas and Oklahoma: Audio-only live webcasts are not approved for credit.
1Indiana: Considered a distance education course. There is a 6 credit limit per year.
2New York: Newly admitted attorneys may not take non-transitional course formats such as on-demand audio or video programs or live webcasts for CLE credit. Newly admitted attorneys not practicing law in the United States, however, may earn 12 transitional credits in non-traditional formats.
3Ohio: To confirm that the live webcast has been approved, please refer to the list of Ohio’s Approved Self Study Activities at http://www.sconet.state.oh.us. Online programs are considered self-study. Ohio attorneys have a 6 credit self-study limit per biennial compliance period. The Ohio CLE Board states that attorneys must have a 100% success rate in clicking on timestamps to receive ANY CLE credit for an online program.
4 Pennsylvania: A live webcast may be viewed individually or in a group setting. Credit may be granted to an attorney who views a live webcast individually. There is a 4.0 credit limit per year for this type of viewing. A live webcast viewed in a group setting receives live participatory credit if the program is open to the public and advertised at least 30 days prior to the program. Live webcasts viewed in a group setting that do not advertise at least 30 days prior the program will be considered "in-house", and therefore denied credit.
5Virginia: All distance learning courses are to be done in an educational setting, free from distractions.
Running time and CLE credit hours are not necessarily the same. Please be aware that many states do not permit credit for luncheon and keynote speakers.
Note that some states limit the number of credit hours attorneys may claim for online CLE activities, and state rules vary with regard to whether online CLE activities qualify for participatory or self-study credits. For more information, refer to your state CLE website or call Customer Service at (800) 260-4PLI (4754) or email: info@pli.edu.
If you have already received credit for attending some or the entire program, please be aware that state administrators do not permit you to accrue additional credit for repeat viewing even if an additional credit certificate is subsequently issued.