Credit Bidding Part III: Some Additional Considerations

Parts I and II in this series discussed certain of the statutory predicates of credit bidding and some considerations for structuring such a bid. Here in Part III, we will address some additional issues that a lender must take into account when deciding to credit bid its debt and some documentary considerations. As its name implies, the predominant form of consideration in a credit bid is often the lender’s debt. Lenders, however, cannot ignore another component of consideration often needed to consummate a transaction, cash. Continue reading Credit Bidding Part III: Some Additional Considerations

Credit Bidding Part II: Important Mechanics

In Part I of this three part series we noted the likelihood that credit bidding will be more prevalent in today’s unpredictable economic environment and discussed some of the statutory backdrop. Here, in Part II, we will discuss certain mechanics that are associated with making, and later consummating, a credit bid.

Rather than risk holding assets in an entity that was not organized with that in mind (e.g., a bank), lenders will often organize a new “acquisition vehicle” (e.g., a limited liability company) for purposes of consummating, if not making, a credit bid. The form of the entity may depend on the assets to be acquired. For example, lenders in a recent transaction formed a trust, rather than LLC, to acquire their helicopter collateral. Continue reading Credit Bidding Part II: Important Mechanics

Credit Bidding Part I: An Important Tool for Lenders

For many secured lenders, the concept of credit bidding in bankruptcy is generally understood yet infrequently explored in practice. In today’s extremely uncertain economic environment, third-party alternatives may not present themselves as M&A activity and acquisition financing have slowed significantly with the spread of COVID-19. As a result, credit bidding could gain momentum as lenders look for self-help alternatives to maximize their recoveries. In three related posts, we will address (i) the statutory predicates for a credit bid, (ii) certain mechanics involved in structuring and consummating a credit bid, and (iii) the need to raise cash to close a credit bid, as well as items to consider when drafting loan documentation that may facilitate a credit bid in the event of a borrower’s bankruptcy. Continue reading Credit Bidding Part I: An Important Tool for Lenders

A Landlord’s Primer For An Uncertain Retail Environment

Landlords are often among the very first to feel the impacts of their tenant’s financial woes. In today’s unpredictable economic environment, many businesses are forced to shut their stores temporarily while the risks of COVID-19 continue to play out. Within the last few days many large and small retailers have unilaterally announced publicly that they would not be paying upcoming rent. In these unprecedented times, landlords must be aware of the risks they face in light of what is certain to be a previously unheard of level of tenant defaults. Noted below are a number of things that landlords should take into consideration and be aware of, both in anticipation of a tenant’s bankruptcy and following such an event. Of course, the discussion below is intended only to highlight certain points and careful consideration must be given to each in the particular circumstances that a landlord may find itself. Continue reading A Landlord’s Primer For An Uncertain Retail Environment

Prepare For Additional Revolver Draws During Current Crisis

In the face of these unprecedented and uncertain days of COVID-19, financially stressed borrowers are expected to take every measure available to them to keep their businesses afloat. For borrowers with revolving credit lines, this has included drawing down unused availability to ensure immediate, and sometimes future, access to needed liquidity. In ordinary circumstances, a revolver provides a borrower flexibility to address changing cash flow needs on a cyclical or seasonal basis. Today, an untapped revolver may be a lifeline for a business struggling with the loss of cash flow. Continue reading Prepare For Additional Revolver Draws During Current Crisis

Biden Endorses Senator Warren’s Bankruptcy Plan

In an effort to broaden his appeal to members of the left-leaning electorate, Joe Biden endorsed Senator Elizabeth Warren’s bankruptcy plan during this past weekend. Ms. Warren’s plan, a material piece of the platform from her former presidential bid, is focused on protecting struggling individual consumers by reducing bankruptcy costs, streamlining the process, and expanding debt forgiveness. Like many of her plans, Ms. Warren’s bankruptcy plan is detailed and generally includes the following proposals: Continue reading Biden Endorses Senator Warren’s Bankruptcy Plan

Small Business Reorganization Act Will Bring Changes to Preference Litigation

The Small Business Reorganization Act of 2019 (the “Act”) will go into effect on February 19, 2020. Most of the attention given to the new law deservedly addresses the impact of those provisions that are intended to streamline the bankruptcy process for “small business debtors” that might not otherwise have the financial resources to reorganize under Chapter 11. Recognizing that a Chapter 11 proceeding has become very expensive, lawmakers have offered small business owners (generally persons or entities engaged in commercial activities and having aggregate debts not exceeding $2,725,625) an opportunity to reorganize under a new Subchapter V of Chapter 11. These provisions reduce the likelihood that an unsecured creditors’ committee will be appointed, lighten reporting requirements, and provide for guidance of a “small business trustee,” among other things. Although critically important, these changes will not have any effect on middle-market and large corporate bankruptcies. Much less attention has been paid to a provision in the Act that is applicable in bankruptcy cases of all sizes and could prove to be of material benefit to a debtor’s vendors. Continue reading Small Business Reorganization Act Will Bring Changes to Preference Litigation

New York Adopts the Uniform Voidable Transactions Act

On April 4, 2020, the State of New York will join ranks with the vast majority of other states implementing a version of the Uniform Voidable Transactions Act (the “UVTA”). Only Maryland continues to apply the Uniform Fraudulent Conveyance Act (the “UFCA”), a law with its origins as early as 1918. A handful of other states that did not adopt the UFCA instead retain their varied, state-specific transfer laws. The uniform legislation was first promulgated in 1984 as an amendment to the UFCA, referred to as the Uniform Fraudulent Transfer Act (“UFTA”). It was later modified and renamed in 2014. Since its origins, the UVTA was intended to serve as a uniform state statute, more consistent with Federal bankruptcy law then the UFCA. New York’s new law is codified as a replacement to Article 10 of the Debtor & Creditor Law §§ 270-281 (“NY UVTA”). Continue reading New York Adopts the Uniform Voidable Transactions Act

Expanding Opportunities in China’s Distressed Debt Markets

Recent press reports have noted the mounting levels of distressed debt in China at a time when the country’s GDP growth has plummeted to its lowest level in a decade (albeit still at 6%). Bloomberg has highlighted that non-performing loans (or NPLs) in China exceeded 2500 billion Yuan (the equivalent of US$365 billion) by the end of 2019, more than doubling in the last five years alone due to the economic slowdown and, more recently, the trade dispute with the US. In headier times, China’s troubled companies were regularly propped up by Chinese asset management companies (or AMCs) that were created for that purpose – to prevent borrower distress from stalling the country’s economic growth. These AMCs — often referred to as “bad banks” — include China Orient Asset Management Co. (matched with Bank of China) and China Cinda Asset Management (matched with China Construction Bank) and were organized to allow banks to discard their distressed portfolios in a manner both protective of the banks and the borrowers. In recent years, however, with the greater need for constraint that comes with rapidly slowing GDP growth, more borrowers may be allowed to fail and with that, there should be a need for new participants in the market for Chinese NPLs.

One element of the new “phase 1” trade deal with China has been somewhat overlooked. Buried within the agreement rests Article 4.5 which provides that: “China shall allow U.S. financial services suppliers to apply for asset management company licenses that would permit them to acquire non-performing loans directly from Chinese banks…. When additional national licenses are granted, China shall treat U.S. financial services suppliers on a non-discriminatory basis….” Continue reading Expanding Opportunities in China’s Distressed Debt Markets

Next Wave of Oil and Gas Bankruptcies

A new wave of bankruptcy filings for leveraged oil and gas companies has begun and this time it may involve more prepacks and less optimism. Beginning in late 2015 and continuing through 2017, downtown Houston was filled with bankruptcy lawyers. Highly leveraged exploration and production (or E&P) companies had become crippled by falling oil prices and the resulting impact on the value of their producing and non-producing reserves in their borrowing bases. No one was immune from the effect: servicing companies, suppliers and vendors, mid-stream and up-stream alike, all operating in a changed market. Many of these borrowers, however, anticipated a near term upswing in the price of oil and commenced their chapter 11 cases with that in mind. For a period of time, they were right. In 2018, WTI Crude recovered above $60 per barrel and reached the mid-$70s as many oil and gas companies exited bankruptcy with improved balance sheets. The volume of oil and gas company bankruptcies declined dramatically from 2016 to 2018. But it didn’t last. Continue reading Next Wave of Oil and Gas Bankruptcies