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Table Of Contents

Out-of-Court Transactions
A. Initial Responses to Distress
1. Forbearance
2. Waivers and Amendments
B. Next Steps in the Distressed Company Process
2. Sales of Securities by Distressed Companies
(i) Financial Viability Exception
3. Debt Repurchases
(i) Corporate Opportunity Doctrine
(iii) Insider Trading
4. Exchange Offers
5. Foreclosure Sales and Assignments for the Benefit of Creditors
Prepackaged and Pre-Negotiated Bankruptcy Plans
A. Prepackaged Plans
1. Generally
2. Requirements
B. Pre-Negotiated Plans
1. Lock-Up Agreements
C. Pre-Negotiated Section 363 Sales
Acquisitions Through Bankruptcy
A. Acquisitions Through a Section 363 Auction
1. Acquisitions Using Section 363 of the Bankruptcy Code
2. Benefits and Risks of Using Section 363
(i) Speed
(ii) Ability to “Cherry Pick” Assets
(i) Public Auction Generally Required
(ii) Potential for Delay
(iii) Transfer Taxes
3. Auctions and Bidding Incentives
(i) Expense Reimbursement
(ii) Break-Up Fees
(iii) Minimum Overbids
(iv) Terms of Sale
4. Other Means of Acquisition
B. Acquisitions Through the Conventional Plan Process
1. Control Over the Restructuring Process—Exclusivity
2. Confirmation Requirements
3. Protections That Can Be Obtained from Confirmation Order
(ii) The Definition of “Issuer”
(i) Large Creditors
(ii) Directors and Officers
(iii) Issuance of Stock by Third Parties
(iv) Rights Offerings
7. Another Chapter 11 Benefit—Antitrust Exemption
(i) In General
(ii) Shopping Center Leases
9. Issues Regarding Lock-Up Agreements
Acquisition and Trading in Claims of Distressed Companies
A. What Claims Should an Investor Seeking Control Buy?
B. What Rights Does the Claim Purchaser Obtain?
1. Assignment or Sale Is Required
4. Recharacterization of Debt as Equity
5. Revolving Debt
C. Acquisition of Claims Confers Standing to Be Heard in a Chapter 11 Case
1. Section 1109(b)
2. Service on the Official Committee of Unsecured Creditors
D. What Enforcement Rights Does the Claim Have?
2. Enforcement Rights of Bank Agent versus Lender
3. Allocation of Enforcement Rights Between Indenture Trustee and Bondholders
4. Intercreditor Agreements and Further Constraints on Creditor Action
6. Risks Accompanying Acquisition of Claims
(i) Restrictions on Trading
(ii) Risks from Actual or Deemed Exchange of Debt
7. Risks from Insider or Fiduciary Status
8. Potential Safeguards
9. Risk of Vote Designation
10. Risk to Insiders Who Purchase Claims
11. Risk of Duty to Disclose Information Related to Acquired Claims
E. Antitrust Considerations
F. Creditors and Tax-Free Reorganizations
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Distressed Ma Outline

Distressed Ma Outline

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Published by Kevin Lin

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Published by: Kevin Lin on Jan 29, 2013
Copyright:Attribution Non-commercial


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