transcript   Transcript

Preparing for Bankruptcy Risks and Industry Issues

Recorded on: Feb. 2, 2018
Running Time: 00:58:31

Full Transcript:

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Taken from the Web Program Recent Developments in Distressed Debt, Restructurings and Workouts 2018 Recorded 2018 in New York

Preparing for Bankruptcy Risks and Industry Issues [00:58:31]

Dealing with the Lender's Potential Risks and Claims

  • Fraudulent transfers and section 546(e) defenses; Ponzi schemes – Tousa, LBOs, Madoff, Tribune; Stanford (Golf Channel)
  • Recharacterization of claims
  • Valuation issues
  • Defenses by lenders and the pushback
  • Make-Whole and prepayment premiums in bankruptcy – Momentive Performance, 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?

David M. Hillman, Joseph Samet, Janet M. Weiss

Industry Issues in Structured Finance, Lending and Derivatives

  • Intercreditor Issues
    • Types of intercreditor agreements: Multiple tranche, senior/junior, mezzanine, shared collateral; Unitranche; Treatment of Unitranche loans in bankruptcy – Radio Shack
    • Challenges to out-of-court restructurings under section 316 (b) of the Trust Indenture Act – What are the “sacred rights” of creditors that cannot be modified without consent?What did the court decide in EDMC or Caesars?
  • Collective action
    • Are members of lending syndicates bound by the actions of the agent?
    • The ability of individual syndicate members to exercise rights outside the group
  • Bankruptcy remote structuring and drafting

(CFE Field of Study: Fraud)

David M. Hillman, Joseph Samet, Janet M. Weiss

The purchase price of this Web Program segment includes the following articles from the Course Handbook available online:

  • Releases and Jevic
    Keith H. Wofford
  • Mediation in Bankruptcy
    Joseph Samet
  • Fraudulent Transfers (January 2017)
    Michael L. Cook, David M. Hillman, Brian C. Tong
  • Preference Litigation (February 2017)
    Brian C. Tong, David M. Hillman, Michael L. Cook
  • David M. Hillman and Parker J. Milender, Bankruptcy Litigation Update: Determining Adequate Capital, The Bankruptcy Strategist, Vol. 34, No. 10, Law Journal Newsletters (August 2017)
    David M. Hillman
David M. Hillman ~ Schulte Roth & Zabel LLP
Joseph Samet ~ Baker & McKenzie LLP (Ret.)
Janet M Weiss ~ Dorsey & Whitney LLP
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