Why you should attend
The unprecedented scope and continuation of the credit crisis, recession, and a weak recovery requires business people and professionals to react quickly and deal with distressed companies and defaults. This includes problems in the automotive, financial services, airlines, 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 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, Texas Rangers; 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, practice and strategies.
Morning Session: 9:00 a.m. - 12:30 p.m.
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 on restructurings
- Legislative changes: Dodd-Frank - Too Big to Fail, “and Living Wills” - Bankruptcy Rule 2019 amendment
- The distressed debt players
- Turnaround and distressed debt opportunities
- Drafting transaction documents to minimize risk and maximize recovery
- Range of covenants and defaults
- Survey issues for intercreditor and subordination agreements, SPVs, etc.
- Potential closeouts of swaps, forward contracts, and repurchase agreements
Alice Belisle Eaton, James Lukenda, Joseph Samet, Robert C. Smith
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, Robert C. Smith
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, Robert C. Smith
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.
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- current developments
- Fraudulent transfers - Tousa, "Big Boy" provisions, LBOs, "Bad Boy" guaranty
- Equitable subordination and recharacterization of claims
- 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
Rick B. Antonoff, Joseph Samet
3:45
Networking Break
4:00
Industry Issues; Pre-negotiated Chapter 11 Plans
- Make-Whole and Prepayment Premiums in Bankruptcy
- 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 right entitled to “expectation damages” if their loans are paid before maturity under a chapter 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)
Rick B. Antonoff, 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
Kathryn A. Coleman, Joseph H. Smolinsky
5:00 Adjourn
Chairperson(s)
Speaker(s)
Program Attorney(s)
New York City Seminar Location
PLI New York Center, 810 Seventh Avenue at 53rd Street (21st floor), New York, New York 10019. Message Center, program days only: (212) 824-5733.
New York City Hotel Accommodations
The New York Hilton & Towers1335 Avenue of the Americas, New York, NY 10019. 1 block from PLI Center. Reservations 1-800-HILTONS or, 1-877-NYC-HILT. Please mention that you are booking a room under the Practising Law Institute Corporate rate and the Client File # is 0495741. You can also
make reservations online to access Practising Law Institute rates.
The Warwick New York Hotel, 65 West 54th Street New York, NY 10019. 1 block from PLI Center. Reservations 800-223-4099 or, hotel direct 212-247-2700. Please mention that you are booking a room under the Practising Law Institute Corporate rate. Reservations on line at www.warwickhotelny.com Click reservations in menu bar on left. Select desired dates. In 'Special Rates' drop down window select Corporate Rate. In 'Rate Code' enter PLIN. Click search and select desired room type and rate plan. Or, you may email reservation requests to: res.ny@warwickhotels.com
Sheraton New York Hotel & Towers, 811 7th Avenue, New York, NY 10019, 1-800-325-3535 or (212) 581-1000. When calling, please mention Practising Law Institute and mention SET#311155. You may also book
online.
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